                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00020-CR



            COREY CHAMPION, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 188th District Court
                 Gregg County, Texas
               Trial Court No. 42,580-A




       Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Moseley
                                     MEMORANDUM OPINION
           Corey Champion appeals from his conviction, on his open guilty plea, of two counts of

aggravated robbery and one count of robbery. He was sentenced to twenty years’ imprisonment.

           Champion argues that the trial court committed reversible error by failing to adequately

admonish him about his right to a jury trial. Therefore, he argues, his waiver was involuntary

and invalid.       He further argues that the court erred by failing to grant a new trial after

acknowledging that the assessment of attorney fees against an indigent person was improper.

           In a factual shift from the typical situation complaining about inadequate admonishments,

when accepting the guilty plea in this case, the trial court asked Champion if its understanding

that he had previously waived his right to a jury trial was correct.                   Champion had been

admonished by a different judge at a pretrial hearing and had waived his right to a jury trial at

that time. 1 The waiver appears in the record both verbally and in writing.



1
    Champion was admonished as follows:

                    THE COURT: Now, in each of these cases did you read these documents entitled Waiver
           of Jury Trial before you signed them?

                   [APPELLANT]: Yes, ma’am.

                   THE COURT: Did you understand the documents that you signed?

                   [APPELLANT]: Yes, ma’am.

                   THE COURT: Is this your decision?

                   [APPELLANT]: Yes, ma’am.

                   THE COURT: Anybody twisting your arm or making you do this against your will?

                   [APPELLANT]: No, ma’am.


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        The contention here is that without a more detailed explanation of the nature of a jury

trial to the defendant, the waiver is ineffectual. Champion argues that the court should not just

have informed him of his right to a jury trial and asked him if he had questions about the waiver,

but should also have actively and separately informed Champion of the size of the jury, of the

fact that the jury would decide guilt, and that if punishment was by the jury, the jury would

determine and assess the proper punishment.

        “A defendant has an absolute right to a jury trial.” Hobbs v. State, 298 S.W.3d 193, 197

(Tex. Crim. App. 2009). He also has the ability to waive that right. Id. Waiver of jury trial in

Texas is procedurally bounded by Article 1.13 of the Texas Code of Criminal Procedure, which

provides that a defendant has the ability to waive the right of trial by jury so long as the waiver is

made in person, “in writing in open court with the consent and approval of the court[,] and the

attorney representing the state.” TEX. CODE CRIM. PROC. ANN. art 1.13 (West Supp. 2014).

Under federal constitutional law, the State must establish that the defendant’s decision was

                  THE COURT: Do you fully understand, Mr. Champion, if in each of these cases I
        approve your Waiver of Jury Trial today, this is a right you cannot get back in either of these
        cases, it will be gone?

                 [APPELLANT]: Yes, ma’am.

                  THE COURT: So you would have a right to a trial after I approve this Waiver of Jury
        Trial, but the trial would be in front of a judge not a jury, do you understand?

                 [APPELLANT]: Yes, ma’am.

                    THE COURT: Understanding this, are you asking me to approve your Waiver of Jury
        Trial . . . .

The written waiver reads as follows:

        I, COREY GAYLON CHAMPION, Defendant in the above entitled and numbered cause, joined
        herein by my attorney in open Court do hereby waive my right of trial by jury and agree that this
        cause may be tried by the Court(s) only.
                                                       3
expressly, knowingly, and intelligently made. Hobbs, 298 S.W.3d at 197; Guillett v. State, 677

S.W.2d 46, 49 (Tex. Crim. App. 1984).

         We find the argument in this case unpersuasive. Champion correctly points out that the

details of pursuing a trial to a jury are matters subject to substantial training for attorneys.

However, the procedural details of a jury trial do not seem necessary to achieve the desired goal.

This is a basic question for the defendant to decide: do you want a jury or a judge to decide your

case? There was not a detailed explanation of the operation of a trial in front of a judge, but we

are not convinced that a detailed explanation is necessary to allow a defendant to knowingly and

intelligently make a decision to place his fate in the hands of a judge rather than a jury. Compare

Smith v. State, 363 S.W.3d 761, 768 (Tex. App.—Austin 2012, pet. ref’d). The contention of

error is overruled.

         Champion also argues that the trial court erred by ordering that he, an indigent person,

pay attorney fees for his representation. However, the argument under this contention is also

atypical. The issue was raised at a hearing on Champion’s motion for a new trial, and the trial

court recognized the error. The trial court realized that the assessment of attorney fees was

improper, but did not believe it could simply delete the fees, apparently believing that a trial

court does not have the option available to appellate courts of granting a new trial solely on

punishment. See TEX. R. APP. P. 21.9. The trial court ultimately denied the motion for a new

trial.

         The Texas Court of Criminal Appeals has recognized a change in the law that now allows

a trial court to grant a new trial solely on the issue of punishment. State v. Davis, 349 S.W.3d

                                                4
535, 537 (Tex. Crim. App. 2011), overruling State v. Hight, 907 S.W.2d 845, 846–47 (Tex.

Crim. App. 1995). As explained in Hight, the former version of Rule 21 referred to “new trial,”

but omitted any mention of a new trial on punishment. Hight, 907 S.W.2d at 846. Although

Article 44.29(b) permitted a new trial on punishment to be granted, the trial court was not among

the courts listed which could do so. Id.; Bates v. State, 889 S.W.2d 306, 310–11 (Tex. Crim.

App. 1994).

        The Texas Court of Criminal Appeals concluded in State v. Davis, 349 S.W.3d 535, 537

(Tex. Crim. App. 2011), that the 2007 amendments to Rule 21 of the Texas Rules of Appellate

Procedure had the effect of allowing a trial court to grant a new trial solely on punishment.

Accordingly, it appears that the trial court could have conducted a new punishment hearing in

this case.

        However, although often found in the judgment, an award of attorney fees is not

characterized as a form of punishment. Like court costs and unlike fines, attorney fees are

compensatory (although the amounts are determined by the court rather than by statute) and

nonpunitive. See Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011). Attorney

fees are reimbursement for the legal services provided by appointed counsel. Id. Moreover, a

trial court may impose attorney fees “whether or not the defendant is convicted, and the directive

to pay attorney’s fees does not change the range of punishment assessed.” Id.; see Hill v. State,

No. 12-11-00292-CR, 2012 WL 2834168 (Tex. App.—Tyler July 11, 2012, no pet.) (mem. op.,




                                                5
not designated for publication) 2; see also TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West

Supp. 2014). This does not quite fit the definition of non-judicial correction of a mismatch

between the actual activity at trial and a misstatement in the judgment that is traditionally

necessary to authorize a nunc pro tunc judgment, but also does not exactly fit the definition of

punishment error in the judgment requiring judicial determination to correct. It seems closer to

situations where a corrected judgment might be entered deleting the award, in the same way that

a misspelled name or incorrectly cited statute is often corrected. At best, application of a new

trial analysis in this situation is questionable.

        Accordingly, we will correct the judgment. The State has acknowledged the award was

error, and likewise requests that we modify the judgment to eliminate the order of

reimbursement.

        The judgment itemizes the costs, specifying that Champion pay attorney fees in the

amount of $850.00. Champion was found indigent before trial, and there is no indication of any

change in that status. The assessment of attorney fees is thus error.

        We have addressed this precise type of error numerous times and have modified the

judgment each time as required by law. Court-appointed attorney fees cannot be assessed

against an indigent person unless there is proof and a finding that he is no longer indigent. Cates

v. State, 402 S.W.3d 250, 251–52 (Tex. Crim. App. 2013); Mayer v State, 399 S.W.3d 552, 556–

57 (Tex. Crim. App. 2010). In this case, there is no such evidence or finding. Error is thus

shown. The proper remedy is not to reverse the conviction in such a case, but merely to modify

2
 Although this unpublished case has no precedential value, we may take guidance from it “as an aid in developing
reasoning that may be employed.” Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d).
                                                       6
the judgment and remove the fee award. Cates, 402 S.W.3d at 252; Martin v. State, 405 S.W.3d

944, 947–48 (Tex. App.—Texarkana 2013, no pet.).

       We modify the judgment of the trial court to delete the fees of Champion’s court-

appointed attorney. As modified, the trial court’s judgment is affirmed.




                                                    Bailey C. Moseley
                                                    Justice

Date Submitted:       October 7, 2014
Date Decided:         October 22, 2014

Do Not Publish




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