                                                                                     ACCEPTED
                                                                                06-14-00209-CR
                                                                      SIXTH COURT OF APPEALS
                                                                           TEXARKANA, TEXAS
                                                                           2/18/2015 3:42:44 PM
                                                                                DEBBIE AUTREY
                                                                                         CLERK

                                     ORAL ARGUMENT WAIVED

                  CAUSE NOS. 06-14-00209-CR                 FILED IN
                                                     6th COURT OF APPEALS
                                                       TEXARKANA, TEXAS
                            IN THE                   2/18/2015 3:42:44 PM
                                                         DEBBIE AUTREY
                     COURT OF APPEALS                        Clerk


     SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
___________________________________________________________

            KELVIN SHAMAR MOORE, JR., Appellant

                               V.

                 THE STATE OF TEXAS, Appellee
___________________________________________________________

      ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT
   RED RIVER COUNTY, TEXAS; HONORABLE ERIC CLIFFORD;
                  TRIAL COURT NO. CR02059
___________________________________________________________

          APPELLEE’S (STATE’S) BRIEF
____________________________________________________________

                    Val J. Varley, County and District Attorney
                    Red River County and District Attorney’s Office
                    Red River County Courthouse
                    400 North Walnut Street
                    Clarksville, Texas 75426-4012
                    (903) 427-2009
                    (903) 427-5316 (Fax)

                    ATTORNEYS FOR THE STATE OF TEXAS




                                1
                IDENTITY OF PARTIES AND COUNSEL

      Pursuant to Tex. R. App. P. 38.2(a)(1)(A), the list of parties and

counsel is not required to supplement or correct the appellant’s list.




                                       2
                  TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL       2

TABLE OF CONTENTS                     3

INDEX OF AUTHORITIES                  4

STATEMENT OF THE CASE                 6

STATEMENT REGARDING ORAL ARGUMENT     7

ISSUES PRESENTED IN REPLY             8

INTRODUCTION                          9

STATEMENT OF FACTS                    10

SUMMARY OF THE ARGUMENT               15

ARGUMENT AND AUTHORITIES              16

PRAYER                                24

CERTIFICATE OF COMPLIANCE             25

CERTIFICATE OF SERVICE                25




                            3
                       INDEX OF AUTHORITIES

TEXAS CASES:                                                   PAGE(S):

Borders v. State,
846 S.W.2d 834 (Tex. Crim. App. 1992).                               17-18

Cates v. State,
402 S.W.3d 250 (Tex. Crim. App. 2013).                               23

Euler v. State,
158 S.W.3d 75 (Tex. App.--Houston [14th Dist.] 2005), aff’d,
218 S.W.3d 88 (Tex. Crim. App. 2007).                                18-19

Hardeman v. State,
1 S.W.3d 689 (Tex. Crim. App. 1999).                                 16

Issa v. State,
826 S.W.2d 159 (Tex. Crim. App. 1992).                               16

Kinslow, Robert Shane v. The State of Texas,
No. 06-14-00083-CR, 2014 Tex. App. LEXIS 13619,
2014 WL 7204556 (Tex. App.--Texarkana December 19, 2014,
no pet.) (mem. op., not designated for publication).                 16-18

Manuel v. State,
994 S.W.2d 658 (Tex. Crim. App. 1999).                               21

Martin v. State,
405 S.W.3d 944 (Tex. App.--Texarkana 2013, no pet.).                 23

Mayer v. State,
309 S.W.3d 552 (Tex. Crim. App. 2010).                               23

Pearson v. State,
994 S.W.2d 176 (Tex. Crim. App. 1999).                         16, 18-19

Riles v. State,
417 S.W.3d 606 (Tex. App.--Amarillo 2013).                           23
Riles, Tawona Sharmin v. The State of Texas,

                                     4
No. PD-1757-13, 2015 Tex. Crim. App. LEXIS 135,
2015 WL 457915 (Tex. Crim. App. February 4, 2015)
(designated for publication).                                     20-22

Vidaurri v. State,
49 S.W.3d 880 (Tex. Crim. App. 2001).                             17-18

Wiley v. State,
410 S.W.3d 310 (Tex. Crim. App. 2013).                            21, 23

TEXAS CODE(S):                                                PAGE(S):

Tex. Health & Safety Code Ann. § 481.112(a) (West 2010).          6, 10

Tex. Health & Safety Code Ann. § 481.112(c) (West 2010).          6, 10

Tex. Health & Safety Code Ann. § 481.102(3)(D) (West 2010).       6, 10

TEXAS RULES OF APPELLATE PROCEDURE:                           PAGE(S):

Tex. R. App. P. 9.4(i)(3)                                         25

Tex. R. App. P. 9.5                                               25

Tex. R. App. P. 33.1                                              17-18

Tex. R. App. P. 38.2                                              9

Tex. R. App. P. 38.2(a)(1)(A)                                     2

Tex. R. App. P. 43.2                                              23

Tex. R. App. P. 44.2(b)                                           19

Tex. R. App. P. 49.1                                              17




                                   5
                      STATEMENT OF THE CASE

      This is an appeal from the trial court’s judgment adjudicating guilt and

revoking Moore’s community supervision. See CR, pgs. 64-65.

      A grand jury in Red River County returned an original indictment that

charged Moore with the second-degree felony offense of possession of a

controlled substance in penalty group one with intent to deliver, to-wit:

cocaine in an amount of one gram or more but less than four grams. See

CR, pgs. 8-9. See also Tex. Health & Safety Code Ann. § 481.112(a), (c)

(West 2010). In due course, the trial court signed an Order of Deferred

Adjudication (CR, pgs. 44-45) that placed Moore on community supervision

(or “probation”). See RR, pgs. 23-24.

      Subsequently, the State filed a motion to proceed with adjudication.

See CR, pgs. 52-57. After a revocation hearing, the trial court revoked

Moore’s community supervision, found him guilty of the underlying offense

and sentenced him to 12 years in the Texas Department of Criminal Justice,

Institutional Division. See RR, pgs. 33-34. From the trial court’s final

judgment adjudicating guilt (CR, pgs. 64-65), Moore timely filed his notice

of appeal. See CR, pg. 70.

      By this appeal, Moore brought two (2) issues/points of error.




                                      6
           STATEMENT REGARDING ORAL ARGUMENT

      The State will waive oral argument in the above-styled and numbered

appellate cause. See Tex. R. App. P. 38.2(a).




                                     7
             ISSUES PRESENTED IN REPLY

ISSUE PRESENTED IN REPLY NO. 1:    THE APPELLANT
WAIVED THE STATUTORY RIGHT TO A SEPARATE
PUNISHMENT HEARING BY NOT OBJECTING, OR BY NOT
FILING A MOTION FOR NEW TRIAL; AND IN THE
ALTERNATIVE, THE APPELLANT HAD THE OPPORTUNITY TO
PRESENT HIS MITIGATING EVIDENCE.

SECOND ISSUE PRESENTED IN REPLY NO. 2:          THE
APPELLANT PROCEDURALLY DEFAULTED HIS CLAIM AS TO
$937.50 IN COURT-APPOINTED ATTORNEY’S FEES, BUT THIS
COURT SHOULD MODIFY THE TRIAL COURT’S JUDGMENT TO
DELETE THE COURT-APPOINTED ATTORNEY’S FEES OF
$993.75, AND SHOULD AFFIRM, AS MODIFIED, THE TRIAL
COURT’S FINAL JUDGMENT OF CONVICTION.




                         8
                        CAUSE NO. 06-14-00209-CR

                                    IN THE

                            COURT OF APPEALS

     SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
___________________________________________________________

                KELVIN SHAMAR MOORE, JR., Appellant

                                       V.

                 THE STATE OF TEXAS, Appellee
___________________________________________________________

      ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT
   RED RIVER COUNTY, TEXAS; HONORABLE ERIC CLIFFORD;
                  TRIAL COURT NO. CR02059
___________________________________________________________

             APPELLEE’S (STATE’S) BRIEF
 ____________________________________________________________

      COMES NOW, the State of Texas, by and through the elected County

and District Attorney of Red River County, Val J. Varley, and the County and

District Attorney’s Office of Red River County, files this Appellee’s Brief in

accordance with Rule 38.2 of the Rules of Appellate Procedure.

      Unless otherwise indicated, Kelvin Shamar Moore, Jr., will be

referred to as “Moore” or “the appellant.” The State of Texas will be

referred to as “the State” or “the appellee.”




                                        9
                        STATEMENT OF FACTS

    After Indictment, the Trial Court Placed Moore on Deferred
Community Supervision.

       On September 26, 2013, a grand jury in Red River County returned an

original indictment against Moore that charged him with the felony offense

of possession of a controlled substance in penalty group one with intent to

deliver, to-wit: cocaine in an amount of one gram or more but less than

four grams. See CR, pgs. 8-9. See also Tex. Health & Safety Code Ann. §

481.112(a) (West 2010); Tex. Health & Safety Code Ann. § 481.102(3)(D)

(listing cocaine in Penalty Group 1). The cocaine was 1.69 grams. See

RR, pg. 27. As indicted, the State charged Moore with a second-degree

felony offense. See Tex. Health & Safety Code Ann. § 481.112 (c) (West

2010). See also RR, pg. 23.

       On April 14, 2014 (RR, pg. 8), the trial court signed an Order of

Deferred Adjudication that placed Moore on community supervision (or by

its common name, “probation”). See CR, pgs. 44-45. See also RR, pgs.

23-24. As soon as Moore was put on probation in Red River County, he

was transferred out to Bowie County, which supervised him. See RR, pgs.

8-9.

       Incident of July 4, 2014.

       On July 4, 2014, Nataly Marino, a peace officer for the City of

                                    10
DeKalb, (Officer Marino) came into contact with Moore. See RR, pg. 12.

According to Officer Marino, she was going into her vehicle when Ms.

Williams pulled up, and she started telling what Moore had said to her

daughter. See RR, pg. 14. So, Ms. Williams took off in front of Officer

Marino, who followed behind. See RR, pg. 14. When they got to the

residence, Ms. Williams pointed to Moore, who had already walked off from

the residence to another residence about a block away. See RR, pg. 14.

Officer Marino came into contact with Moore on North Houston Street. See

RR, pg. 17.

      Officer Marino asked him for an ID, and he patted his pockets to

check for his wallet. See RR, pgs. 14-15. Moore was like, “Oh, I don’t

have it with me.” See RR, pg. 15. Officer Moore could smell marijuana,

and “asked to pat him down.” See RR, pg. 15.

      When Officer Marino was patting him down, she could feel something

in his right pocket. See RR, pg. 15. Officer Marino said, “Yes, please

empty out your pockets.” See RR, pg. 15. A brown cigarette fell out of his

hand. See RR, pg. 15. Officer Marino asked to see the cigarette that had

already been used. See RR, pg. 15. Moore wouldn’t hand it to Officer

Marino, who picked it up. See RR, pgs. 15, 19. Officer Marino did a field

test on it, and it tested positive for marijuana. See RR, pgs. 15, 29. Officer


                                      11
Marino then asked for his name and date of birth, and he gave the name of

“Kelvin Jones” with a date of birth of 9-26-86. See RR, pg. 15.

      After about thirty minutes (RR, pg. 19), Officer Marino put the

suspect in the back seat, and then he gave Officer Marino his real name,

Kelvin “Jones” with his real date of birth of 9-30-84. See RR, pg. 16. He

told Officer Marino, “I lied to you because I’m on probation.” See RR, pg.

16.

      Officer Marino later charged Moore with the misdemeanor offenses of

possession of marijuana and failure to identify as a fugitive from justice.

See RR, pgs. 16-17, 20. Moore entered pleas of guilty to those, and was

given 21 days in jail. See RR, pg. 20; State’s Exhibits 1 and 2.

      Revocation Hearing on October 30, 2014.

      On July 21, 2014, the State filed a motion to proceed with

adjudication. See CR, pgs. 52-57. Moore was arrested and had been in the

Red River County jail from July 4th until the revocation hearing on October

30, 2014. See RR, pgs. 1, 8-9.

      On October 30th, the trial court called the cause number (CR2059)

underlying this appeal, and Moore entered a plea of “true” to all the

allegations. See RR, pgs. 6-7. As its first witness, the State called Miranda

Dean (Dean), who testified that Moore “hasn’t made any” payments since


                                      12
he’s been on probation. See RR, pgs. 7, 30. Also, Moore didn’t do any

community service hours. See RR, pgs. 10, 30-31.

      As its second witness, the State called Officer Moreno, who

recognized the defendant-appellant (Moore) in open court. See RR, pg. 12.

Following the officer’s testimony, the State rested. See RR, pg. 21.

      As its only witness, the defense called Moore to testify. See RR, pg.

21. Following his testimony, the defense rested. See RR, pg. 33.

      The trial court then found that Moore had violated each and every one

of the allegations in the State’s motion. See RR, pg. 33. The trial court

revoked his community supervision. See RR, pg. 33.

      The trial court then ruled, “I now proceed to sentencing.” See RR,

pg. 33. The trial court found Moore guilty of the offense and sentenced him

to 12 years in the Texas Department of Criminal Justice, Institutional

Division. See RR, pgs. 33-34.

      On October 30th, the trial court signed its final judgment of

conviction. See CR, pgs. 64-65. On November 10, 2014, Moore timely

filed his notice of appeal. See CR, pg. 70.

      Proceedings in this Court of Appeals.

      On or about November 25, 2014, Moore filed his notice of appeal in

this Court. On or about December 8, 2014, the official court reporter filed


                                     13
the Reporter’s Record. The District Clerk of Red River County filed the

Clerk’s Record on or about December 22, 2014 along with a Supplemental

Clerk’s Record on January 21, 2015.

      On or about January 26, 2015, Moore filed his brief. The State will

be filing its brief on or before the current due date of February 25, 2015.




                                       14
                    SUMMARY OF THE ARGUMENT

      By this appeal, Moore brought two (2) issues/points of error that

allege (1) the trial court erred in failing to conduct a separate punishment

hearing and (2) the trial court erred in assessing $1,931.25 in attorney’s fees

against him because there was no determination that he had the financial

ability to pay those costs. See Appellant’s Brief, pg. 5.

      (1)     The first issue/point of error should be overruled because the

appellant, Moore, failed to preserve this complaint for review because he

failed to object during the hearing and failed to file a motion for new trial.

Even further, Moore had the opportunity to present mitigating evidence, and

did so by testifying during the revocation hearing. See RR, pgs. 21-33.

      (2)     The second issue/point of error should be sustained in part and

overruled in part.      The total attorney’s fees of $1,931.25 had two

components:     (a) $937.50 and (b) $993.75.       As to the component of

$937.50, Moore procedurally defaulted by foregoing a direct appeal from the

initial order for deferred adjudication.    As for the other component of

$993.75, the State will concede error, and this Court should delete the

erroneous assessment of $993.75.        As modified, the trial court’s final

judgment adjudicating guilt should be affirmed in all other respects.




                                      15
                      ARGUMENT AND AUTHORITIES

ISSUE PRESENTED IN REPLY NO. 1:    THE APPELLANT
WAIVED THE STATUTORY RIGHT TO A SEPARATE
PUNISHMENT HEARING BY NOT OBJECTING, OR BY NOT
FILING A MOTION FOR NEW TRIAL; AND IN THE
ALTERNATIVE, THE APPELLANT HAD THE OPPORTUNITY TO
PRESENT HIS MITIGATING EVIDENCE.

       A.     Introduction.

       With his first issue, the appellant, Moore alleged that the trial court

erred in failing to conduct a separate hearing before sentencing him. See

Appellant’s Brief, pgs. 5, 8 (citing Issa v. State, 826 S.W.2d 159 (Tex. Crim.

App. 1992)).1 In his brief, Moore conceded that this Court recently rejected

a similar argument to the one presented here. See Robert Shayne Kinslow v.

The State of Texas, No. 06-14-00083-CR, 2014 Tex. App. LEXIS 13619,

2014 WL 7204556 (Tex. App.--Texarkana December 19, 2014, no pet.)

(mem. op., not designated for publication) (Morriss, C.J.) (Red River

County).

       In his brief, Moore respectfully requested this Court to reconsider its

decision in the Kinslow case. See Appellant’s Brief, pg. 8. However, this

Court did not reconsider its decision in Kinslow because the appellant did

1
  Further, “Issa does not stand for the absolute right to a separate punishment hearing.”
See Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999). In Hardeman, the
Court held that “[i]nstead, it requires the defendant to have the opportunity to present
evidence in mitigation of guilt if not afforded during adjudication.” See id. at 690-91
(reference to footnote omitted). See also Pearson v. State, 994 S.W.2d 176, 179 (Tex.

                                           16
not file any motion for rehearing. See Tex. R. App. P. 49.1. Like the

appellant in Kinslow, Moore was also represented by the same

court-appointed counsel, Don Biard, who could have filed a motion for

rehearing or sought further review in the Texas Court of Criminal Appeals

but did not.

      B.       Waiver and the Opportunity to Present Evidence.

      In Kinslow, this Court held that the appellant “failed to object during

the hearing and also failed to file a motion for new trial.” See id., 2014 Tex.

App. LEXIS 13619, at * 2; 2014 WL 7204556, at * 1 (reference to footnote

omitted). In Kinslow, this Court held that the appellant failed to preserve

this complaint for review. See id (citing Tex. R. App. P. 33.1; Vidaurri v.

State, 49 S.W.3d 880, 886 (Tex. Crim. App. 2001); Borders v. State, 846

S.W.2d 834, 836 (Tex. Crim. App. 1992)). The same outcome should result

in the present case.

      1.       Waiver: Moore Failed to Object During the Hearing.

      In the present case, Moore failed to object during the hearing when

the trial court asked, “Anything further, Mr. Meehan?” See RR, pg. 33.

Instead, the defense rested after Moore’s testimony. See RR, pg. 33.

      Even further, Moore failed to object when the trial court ruled, “I now


Crim. App. 1999).

                                      17
proceed to sentencing.” See RR, pg. 33. Here, by failing to object, Moore

failed to preserve his complaint for review. See Kinslow, 2014 Tex. App.

LEXIS 13619, at * 2; 2014 WL 7204556, at * 1 (citing Vidaurri, 49 S.W.3d

at 886; Borders, 846 S.W.2d at 836). See also Tex. R. App. P. 33.1.

      2.    Waiver: Moore Failed to File a Motion for New Trial.

      Even assuming Moore was, as he alleged, prevented from presenting

separate punishment evidence, he should have brought the issue to the

attention of the trial court with a motion for new trial. See Vidaurri, 49

S.W.3d at 886. However, Moore never filed such a motion. See id.

     3.   Moore Had the Opportunity to Present His Mitigating
Evidence.

      Finally, the decision in the present case was controlled by Pearson, as

explained in Euler v. State, 158 S.W.3d 75, 78 (Tex. App.--Houston [14th

Dist.] 2005), aff’d, 218 S.W.3d 88 (Tex. Crim. App. 2007). According to

the Court in Pearson, “appellant had the opportunity to present evidence

during the proceedings” and “that is all that is required.” See Pearson, 994

S.W.2d at 179 (italics added in the opinion). In Euler, appellant was able to

present evidence in mitigation of his punishment, even though this did not

occur during a separate punishment hearing. See Euler, 158 S.W.3d at 78.

      Here, as in Pearson and Euler, Moore had the opportunity to present

evidence, and did so because he testified during the October 30 th

                                     18
proceedings (RR, pgs. 21-33), even though this did not occur during a

separate punishment hearing. See Pearson, 994 S.W.2d at 179; Euler, 158

S.W.3d at 78. Because Moore had the opportunity to present mitigating

evidence and did so, he could not establish any harm because he was able to

present his mitigating evidence. See Tex. R. App. P. 44.2(b) (“[a]ny other

error, defect, irregularity, or variance that does not affect substantial rights

must be disregarded.”).

      For the reasons set forth above, Moore’s first issue/point of error

should be overruled. The trial court’s final judgment of conviction should

be affirmed.




                                       19
SECOND ISSUE PRESENTED IN REPLY NO. 2:          THE
APPELLANT PROCEDURALLY DEFAULTED HIS CLAIM AS TO
$937.50 IN COURT-APPOINTED ATTORNEY’S FEES, BUT THIS
COURT SHOULD MODIFY THE TRIAL COURT’S JUDGMENT TO
DELETE THE COURT-APPOINTED ATTORNEY’S FEES OF
$993.75, AND SHOULD AFFIRM, AS MODIFIED, THE TRIAL
COURT’S FINAL JUDGMENT OF CONVICTION.

      A.        Introduction.

      With his second issue on appeal, Moore alleged that the trial court

erred in assessing $1,931.25 in attorney’s fees because there was no

determination made that the appellant had the financial ability to pay those

costs. See Appellant’s Brief, pgs. 11-12. With respect to some of those

fees, however, Moore has procedurally defaulted. See Tawona Sharmin

Riles v. The State of Texas, No. PD-1757-13, 2015 Tex. Crim. App. LEXIS

135, 2015 WL 457915 (Tex. Crim. App. February 4, 2015) (designated for

publication).

      B.        Procedural Default.

      In Riles, a probation revocation case, the Texas Court of Criminal

Appeals recently held that the appellant had knowledge of the attorney fee

and, therefore, could have challenged the sufficiency of the evidence

supporting payment of the fee in a direct appeal from the initial order for

deferred adjudication. See Riles, 2015 Tex. Crim. App. LEXIS 135, at * 9;

2015 WL 457915, at * 3. In Riles, the Court held that the appellant


                                      20
procedurally defaulted this claim by failing to do so. See id., 2015 Tex.

Crim. App. LEXIS 135, at * 10, 2015 WL 457915, at * 3 (citing Manuel v.

State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999)).

      In Riles, the appellant filed no appeal until her community supervision

was revoked two years later. See Riles, 2015 Tex. Crim. App. LEXIS 135,

at * 12; 2015 WL 457915, at * 4. The Riles Court made clear in Manuel

and Wiley v. State, 410 S.W.3d 310 (Tex. Crim. App. 2013) that those issues

that an appellant can raise in a direct appeal from the initial judgment must

be raised, and that failing to do so results in procedural default. See Riles,

2015 Tex. Crim. App. LEXIS 135, at * 12; 2015 WL 457915, at * 4 (citing

Manuel, 994 S.W.2d at 661-62, Wiley, 410 S.W.3d at 320-31). In Riles, the

appellant had knowledge that she was to be charged for her appointed

attorney fee, as evidenced by the multiple admonishments that she signed,

but she forfeited her claim by foregoing her initial appeal. See id., 2015

Tex. Crim. App. LEXIS 135, at * 13; 2015 WL 457915, at * 4.

      C.    Application of the Riles Rationale to the Present Case.

      1.    Procedural Default of $937.50 in Attorney’s Fees.

      In the present case, the bill of costs reflected $1,931.25 in “COURT

APPOINTED ATTORNEY” (CR, pg. 77), but that component actually

reflected two (2) separate assessments: one for $937.50 (CR, pgs. 47, 49)


                                      21
and the other for $993.75. See CR, pg. 66. Added together, these two (2)

separate assessments equaled the total amount of $1931.25 ($937.50 +

$993.75 = $1931.25), as reflected in the bill of costs. See CR, pg. 77.

      In its Order Imposing Conditions of Community Supervision signed

on April 14, 2014 (CR, pgs. 46-48), the trial court assessed attorney’s fees in

the amount of $937.50. See CR, pgs. 47, 49. The trial court’s assessment

of $937.50 was further evidenced by the Certificate of Court Authorizing

Payment of Attorney’s Fees. See CR, pgs. 49-51.

      With respect to the fees of $937.50, however, Moore has procedurally

defaulted because he could have challenged the sufficiency of the evidence

supporting payment of the fee in a direct appeal from the initial order for

deferred adjudication, but failed to do so. See Riles, 2015 Tex. Crim. App.

LEXIS 135, at * 9, 10; 2015 WL 457915, at * 4. As in Riles, Moore

procedurally defaulted because he had knowledge that he was to be charged

for his appointed attorney fee, as evidenced by the multiple admonishments

that he signed, but he forfeited his claim by foregoing his initial appeal. See

Riles, 2015 Tex. Crim. App. LEXIS 135, at * 13; 2015 WL 457915, at * 4.

     2.   This Court Should Modify in Part the Trial Court’s
Judgment and Bill of Costs.

      Unlike the assessment of $937.50 (CR, pgs. 47, 49), the State will

concede that, as of October 30th, Moore was indigent and that the record was

                                      22
devoid of any determination or finding by the trial court that he had financial

resources or was otherwise able to pay the appointed attorney fees. See

Wiley, 410 S.W.3d at 317. Thus, the assessment of attorney’s fees in the

amount of $993.75 was erroneous and should be removed. See Cates v.

State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013); Mayer v. State, 309

S.W.3d 552, 556 (Tex. Crim. App. 2010); Martin v. State, 405 S.W.3d 944,

946-47 (Tex. App.--Texarkana 2013, no pet.).

      Because this Court has the authority to modify judgments to make the

record speak the truth, see Tex. R. App. P. 43.2, the Bill of Costs should be

revised and the trial court’s judgment should be reformed to add the

following provision:      “As used herein the term ‘court costs’ does not

include court-appointed attorney’s fees” in the amount of $993.75. See

Riles v. State, 417 S.W.3d 606, 614 (Tex. App.--Amarillo 2013) (Pirtle, J.,

concurring and dissenting), aff’d, No. PD-1757-13 (Tex. Crim. App.

February 4, 2015). Therefore, the appellant’s second issue/point of error

should be overruled in part and sustained in part to delete the award of

$993.75 only. As modified, the trial court’s final judgment of conviction

should be affirmed in all other respects.




                                       23
                                  PRAYER

      WHEREFORE, PREMISES CONSIDERED, the State of Texas prays

that upon final submission without oral argument, this Court should delete

the assessment of $993.75 in court-appointed attorney’s fees only, and affirm

the trial court’s final judgment, as modified; adjudge court costs against the

appellant and for such other and further relief, both at law and in equity, to

which the State may be justly and legally entitled.

                          Respectfully submitted,

                          Val J. Varley, County and District Attorney
                          Red River County Courthouse
                          400 North Walnut Street
                          Clarksville, Texas 75426-4012
                          (903) 427-2009
                          (903) 427-5316 (fax)
                          valvarley@valornet.com


                          By: _/s/Val Varley___________________
                               Val J. Varley, County-District Attorney
                               SBN# 20496580

                          ATTORNEYS FOR THE STATE OF TEXAS




                                      24
                  CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,

the “State’s Brief” was a computer-generated document and contained 4,069

words--not including the Appendix (not applicable here). The undersigned

attorney certified that he relied on the word count of the computer program,

which was used to prepare this document.


                               _/s/Val Varley___________
                               Val J. Varley
                               valvarley@valornet.com

                     CERTIFICATE OF SERVICE

      This is to certify that in accordance with Tex. R. App. P. 9.5, a true

copy of the “Appellee’s (State’s) Brief” has been served on the 18TH day of

February, 2015 upon the following:

Don Biard
McLaughlin, Hutchison & Biard
38 First Northwest
Paris, TX 75460

                               _/s/Val Varley____________
                               Val J. Varley
                               valvarley@valornet.com




                                     25
