                                                                         ACCEPTED
                                                                     06-18-00077-CR
                                                           SIXTH COURT OF APPEALS
                                                                 TEXARKANA, TEXAS
                                                                    6/4/2018 1:25 PM
                                                                    DEBBIE AUTREY
                                                                              CLERK

               NO. 06-18-00077-CR

                                           FILED IN
                                    6th COURT OF APPEALS
         IN THE COURT OF APPEALS      TEXARKANA, TEXAS
                                    6/4/2018 1:25:34 PM
    SIXTH APPELLATE DISTRICT OF TEXAS DEBBIE AUTREY
                                            Clerk
             AT TEXARKANA, TEXAS


              DAVEN MICHAEL RAY,
                   Appellant

                        VS.

             THE STATE OF TEXAS,
                   Appellee


   Appealed from the 276th Judicial District Court
              Marion County, Texas
              Trial Court No. F14881


             BRIEF OF APPELLANT


                                Submitted by:

                                /s/ James P. Finstrom
                                James P. Finstrom
                                Counsel for Appellant
                                P.O. Box 276
                                Jefferson, Texas 75657
                                903-665-7111
                                Fax: 903-665-7167
                                State Bar #07038000
                                jpfinstrom@sbcglobal.net

APPELLANT DOES NOTREQUEST ORAL ARGUMENT
               IDENTITY OF PARTIES AND COUNSEL
                    Pursuant to T.R.A.P. 38.1(a)

Appellant:        Daven Michael Ray
                  TDCJ No. 02193668
                  Texas Department of Criminal Justice
                  1385 FM 3328
                  Palestine, Texas 75803

Appellant’s Counsel at trial

                  Hon. William Gleason
                  117 W. Lafayette Street
                  Jefferson, Texas 75657

Appellant’s Counsel on appeal:

                  Hon. James P. Finstrom
                  P.O. Box 276
                  Jefferson, Texas 75657

State’s Counsel at trial and on appeal:

                  Hon. Angela Smoak
                  County Attorney
                  102 W. Austin
                  Jefferson, Texas 75657


Trial Judge:      Hon. Robert Rolston, Judge, 276th Judicial District
                  Court, Marion County, Texas




                                   2
                  TABLE OF CONTENTS
                 Pursuant to T.R.A.P. 38.1(b)
                                                Page

IDENTITY OF PARTIES AND COUNSEL                   2

TABLE OF CONTENTS                                 3

INDEX OF AUTHORITIES                              5

STATEMENT OF THE CASE                             6

ISSUES PRESENTED                                  7

ISSUE NO. ONE: THE COURT ERRED WHEN IT ASSESSED
ATTORNEY’S FEES AGAINST APPELLANT TO COVER
THE COSTS OF APPELLANT’S COURT-APPOINTED
COUNSEL AND ORDERED HIM TO PAY $750.00 FOR
COURT-APPOINTED COUNSEL.

ISSUE NO. TWO: THERE IS NO OTHER ERROR
PRESENTED IN THE RECORD OF THIS CAUSE.

STATEMENT OF FACTS                                7

ISSUE NO. ONE (Restated)                          8

DID THE COURT ERR WHEN IT ASSESSED ATTORNEY’S
FEES AGAINST APPELLANT TO COVER THE COSTS OF
APPELLANT’S COURT-APPOINTED COUNSEL AND
ORDERED HIM TO PAY $750.00 FOR COURT-
APPOINTED COUNSEL?

SUMMARY OF THE ARGUMENT                           8

ARGUMENT (Issue No. 1)                            8




                              3
ISSUE NO. TWO (Restated)                    9

IS THERE ANY OTHER ERROR PRESENTED IN THE
RECORD OF THIS CAUSE?

SUMMARY OF THE ARGUMENT                     9

ARGUMENT (Issue No. 2)                      9

PRAYER                                      10

CERTIFICATE OF SERVICE                      11

CERTIFICATE OF COMPLIANCE                   11




                            4
                      INDEX OF AUTHORITIES
                     Pursuant to T.R.A.P. 38.1(c)

Cases:                                                   Page


Armstrong v. State, 340 S.W.3d 759
     (Tex.Crim.App. 2011)                                    9

Clark v. State,
      365 S.W.3d 333
      (Tex.Crim.App. 2012)                                  10

Draheim v. State, 916 S.W.2d 593
     (Tex.App.—San Antonio 1996), p.d.r. ref’d              10


Statutes:

Article 26.05(g), Code of Criminal Procedure                 9




      All references to Texas statutes, rules, etc. are to the latest
edition published by West Publishing Company, unless otherwise
noted.




                                    5
                     STATEMENT OF THE CASE
                     Pursuant to T.R.A.P. 38.1(d)

      Appellant was indicted for Burglary of a Habitation with Intent to

Commit the Felony Offense of Sexual Assault, a first degree felony,

alleged to have occurred on or about May 9, 2017. (CR 6) Appellant

plead guilty to the trial court pursuant to a plea bargain, which

deferred adjudication of guilt and placed him on community

supervision for 7 years and assessed a fine of $1500.00 plus all costs

of court. (CR 20) The State filed State’s First Amended Motion To

Proceed With An Adjudication of Guilt on March 1, 2018 (CR 30) At

the hearing on the State’s motion to adjudicate, Appellant plead true

to the allegations in the motion to adjudicate and the trial court

adjudicated Appellant’s guilt on April 13, 2018, and sentenced him to

20 years confinement in the Institutional Division of the Texas

Department of Criminal Justice. (CR 34, RR 7-8) Appellant gave

timely Notice of Appeal to this Court on May 8, 2018. (CR 37) The

Clerk’s Record was filed on May 17, 2018, and Appellant’s Brief is

due on June 20, 2018. The trial court’s certification of Appellant’s

right of appeal appears in the record. (CR 33)




                                    6
                       ISSUES PRESENTED
                     Pursuant to T.R.A.P. 38.1(e)

ISSUE NO. ONE: THE COURT ERRED WHEN IT ASSESSED
ATTORNEY’S FEES TO COVER THE COSTS OF
APPELLANT’S COURT-APPOINTED COUNSEL AND
ORDERED HIM TO PAY $750.00 FOR COURT-APPOINTED
COUNSEL.

ISSUE NO. TWO: THERE IS NO OTHER ERROR PRESENTED
IN THE RECORD OF THIS CAUSE.

                      STATEMENT OF FACTS
                     Pursuant to T.R.A.P. 38.1(f)

     Appellee called four witnesses to testify at the adjudication

hearing.

     David Newsom, a Harrison County deputy sheriff, testified that

he stopped a vehicle in which Appellant was a passenger and he

gave a false name and was placed under arrest for failure to identify.

(RR 11-12)

     Stephen Cable, also a Harrison County deputy sheriff, was

present with Deputy Newsom and participated in the arrest of

Appellant. (RR 13-14)

     Megan Deal, a probation officer from Gregg County who is

housed at the “Deer” unit substance abuse recovery center, testified

that Appellant was transferred to the Deer Unit on September 6,



                                   7
2017, and that he absconded from that unit on November 26, 2017,

and was unsuccessfully discharged from the program. (RR 14-15)

      Jennifer Guedara, probation officer with the Marion County

Probation Department, testified that she could find no record of a

telephone call from Appellant to the probation department after he

absconded from the drug treatment unit. (RR 20-22)

      Appellant called two witnesses and testified himself, but did not

offer testimony to contest the factual allegations made by the State to

adjudicate him.

                     ISSUE NO. ONE (Restated)

DID THE COURT ERR WHEN IT ASSESSED ATTORNEY’S FEES
TO COVER THE COSTS OF APPELLANT’S COURT-APPOINTED
COUNSEL AND ORDERED HIM TO PAY $750.00 FOR COURT-
APPOINTED COUNSEL?

                  SUMMARY OF THE ARGUMENT

      Appellant urges that the trial court should not have ordered him

to pay $750.00 in court-appointed attorney’s fees in the final

judgment entered in this cause because he was indigent.

                      ARGUMENT (Issue No. 1)

      The record reflects that Appellant filed his Sworn Application

For Court Appointed Counsel when he was jailed and that the

magistrate determined him to be indigent and appointed counsel for

                                   8
him. (CR 7, 8) Under Article 26.05(g), Code of Criminal Procedure, a

trial court has the authority to order the reimbursement of court-

appointed attorney’s fees only if “the court determines that a

defendant has financial resources that enable him to offset in part or

in whole the costs of the legal services provided, including any

expenses and costs.” There is nothing in the record to show that

Appellant has financial resources and the ability to pay his attorney’s

fees. See Armstrong v. State, 340 SW3d 759 (Tex.Crim.App. 2011).

                     ISSUE NO. TWO (Restated)

IS THERE ANY OTHER ERROR PRESENTED IN THE RECORD OF
THIS CAUSE?

                  SUMMARY OF THE ARGUMENT
                   Pursuant to T.R.A.P. 38.1(g)

      Appellant discerns no other potential issues to be raised on the

appeal of this cause since his plea of guilty resulting in deferred

adjudication and his plea of true to the allegations in the motion to

adjudicate waives any non-jurisdictional error.

                      ARGUMENT (Issue No. 2)

      Counsel is of the opinion that Appellant’s non-negotiated plea

of true to the allegations in the motion to adjudicate filed against him

waives all non-jurisdictional error as would a non-negotiated plea of


                                    9
guilty. See Draheim v. State, 916 S.W.2d 593 (Tex.App.—San

Antonio 1996), p.d.r. ref’d. And there were no issues raised by

objections by either party to lay any predicate for appeal. See Clark v.

State, 365 S.W.3d 333 (Tex.Crim.App. 2012). There being no issues

raised in the record, this appeal is frivolous apart from the issue

raised in Issue No 1 above.

                               PRAYER

      Appellant prays that the judgment in this cause be reformed

and the order that Appellant pay his court-appointed attorney’s fees

be stricken from the judgment and counsel is of the opinion that

Appellant’s appeal is without merit as to any reversible error, and

prays that he be permitted to withdraw in this case and for such other

and further relief to which Appellant may be entitled.

                                          Respectfully submitted,



                                          /s/ James P. Finstrom
                                          James P. Finstrom
                                          Counsel for Appellant
                                          202 S. Marshall,
                                          P.O. Box 276
                                          Jefferson, Texas 75657
                                          903-665-7111
                                          Fax: 903-665-7167
                                          Texas Bar #07038000
                                          jpfinstrom@sbcglobal.net

                                   10
                      CERTIFICATE OF SERVICE

      I certify that I have delivered a true copy of this brief to Hon.
Angela Smoak, counsel for the State, on this 4th day of June, 2018,
and I have served a true copy of the brief and a copy of the reporter’s
record and the clerk’s record in this cause on Appellant at 1385 FM
3328, Palestine, Texas 75803 by United States mail, first class
postage prepaid.


                                                   /s/ James P. Finstrom
                                                   James P. Finstrom

                   CERTIFICATE OF COMPLIANCE

      I certify that Appellant’s Brief filed electronically on this 4th day
of June, 2018 complies with Tex. R. App. P. 9.4(i)(2)(B). This Brief
contains 1,383 words.


                                                   /s/ James P. Finstrom
                                                   James P. Finstrom




                                     11
