                                                                      ACCEPTED
                                                                 12-14-00197-CR
                                                     TWELFTH COURT OF APPEALS
                                                                  TYLER, TEXAS
                                                           1/27/2015 11:22:04 AM
                                                                    CATHY LUSK
                                                                          CLERK

              ORAL ARGUMENT REQUESTED

                   NO. 12-14-00197-CR            FILED IN
                                          12th COURT OF APPEALS
                                               TYLER, TEXAS
               IN THE COURT OF APPEALS    1/27/2015 11:22:04 AM
                 12TH JUDICIAL DISTRICT        CATHY S. LUSK
                                                   Clerk
                       TYLER, TEXAS



                 DAVONTAE ROBINSON,
                     APPELLANT


                             VS.


                  THE STATE OF TEXAS,
                       APPELLEE


       ON APPEAL IN CAUSE NUMBER 007-0329-11
        FROM THE 7th JUDICIAL DISTRICT COURT
              OF SMITH COUNTY, TEXAS
     HONORABLE KERRY RUSSELL, JUDGE PRESIDING


                  APPELLANT’S BRIEF

JAMES W. HUGGLER, JR.
100 E. FERGUSON, SUITE 805
TYLER, TEXAS 75702
903-593-2400
STATE BAR NUMBER 00795437

ATTORNEY FOR APPELLANT
             IDENTITY OF PARTIES AND COUNSEL

APPELLANT:
    Davontae Robinson

APPELLANT’S TRIAL COUNSEL
    Kurt Noell (At trial)
    231 South College Avenue
    Tyler, Texas 75702
    903-597-9069

     John Jarvis (At revocation)
     326 S. Fannin
     Tyler, Texas 75702
     903-592-6576

APPELLANT’S APPELLATE COUNSEL
    James Huggler
    100 E. Ferguson, Suite 805
    Tyler, Texas 75702
    903-593-2400
    903-593-3830 (fax)

APPELLEE
    The State of Texas

APPELLEE’S TRIAL COUNSEL
    Richard Vance
    Chris Gatewood
    Bryan Jiral
    Smith County Criminal District Attorney’s Office
    100 N. Broadway, 4th Floor
    Tyler, Texas 75702
    903-590-1720
    903-590-1719 (fax)



                                   ii
APPELLEE’S APPELLATE COUNSEL
    Michael West
    Smith County Criminal District Attorney’s Office
    100 N. Broadway, 4th Floor
    Tyler, Texas 75702
    903-590-1720
    903-590-1719 (fax)




                                 iii
                                  TABLE OF CONTENTS
                                                                                               PAGE

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

        ISSUE ONE: The trial court erred in imposing attorney fees
        following a finding that Mr. Robinson was indigent and was
        appointed counsel.

        ISSUE TWO: The District Clerk erred in including attorney fees
        following a finding that Mr. Robinson was indigent and appointed
        counsel.

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ISSUE ONE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ISSUE TWO, RESTATED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

        A. Law on Attorney Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
        B. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
        C. Application to These Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
        D. Remedy and Relief Requested.. . . . . . . . . . . . . . . . . . . . . . . . . 11

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
                                                    iv
CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13




                                           v
                               TABLE OF AUTHORITIES
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West 2010).. . . . . . . . . . . 6, 7
TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West 2010). . . . . . . . . . . . . . 6
TEX. CODE CRIM. PROC. ANN. art. 103.001 (West 2010). . . . . . . . . . . . . . 7
TEX. GOV’T CODE ANN. §§ 102.001-.142 (West 2010). . . . . . . . . . . . . . . . 7
TEX. GOV’T CODE ANN. § 102.021 (West 2010). . . . . . . . . . . . . . . . . . . . . 7
TEX. GOV’T CODE ANN. § 103.006 (West 2010). . . . . . . . . . . . . . . . . . . . . 8
TEX. HEALTH & SAFETY CODE ANN. §481.115(a) and (c) (West 2010). 2, 3


CASES
Armstrong v. State, 340 S.W.3d 759 (Tex. Crim. App. 2011). . . . . . . 7, 8
Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005).. . . . . . . . 9
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,
   61 L. Ed. 2d 560 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). . . . . . . 8
Johnson v. State, 405 S.W.3d 350, 354 (Tex. App. – Tyler
   2013, no pet). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 9
Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010). . . . . . . 7, 9
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991). . . . 9
Owen v. State, 352 S.W.3d 542, 5148 (Tex. App. – Amarillo
   2011, no pet). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009). . . . . . . . . . 7
Williams v. State, 332 S.W.3d 694, 699 (Tex. App. – Amarillo
   2011, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9




                                                   vi
RULES
TEX. R. APP. PROC. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
TEX. R. APP. PROC. 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1




                                                 vii
                                 NO. 12-14-00197-CR


DAVONTAE ROBINSON                             §   IN THE COURT OF APPEALS
APPELLANT                                     §
                                              §
VS.                                           §   12TH JUDICIAL DISTRICT
                                              §
THE STATE OF TEXAS,                           §
APPELLEE                                      §   TYLER, TEXAS


                                APPELLANT’S BRIEF


TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES
THEREOF:


       Davontae Robinson, (“Appellant”), by and through his attorney of

record, James Huggler, and pursuant to the provisions of TEX. R. APP.

PROC. 38, et seq., respectfully submits this brief on appeal.




                           STATEMENT OF THE CASE

       Appellant was indicted in Cause Number 007-1329-11 for the third

degree felony offense of possession of a controlled substance. I CR 11; see

       1
        References to the Clerk’s Record are designated “CR” with a roman numeral preceding
“CR” indicating the correct volume and an arabic numeral following “CR” specifying the correct
                                               1
TEX. HEALTH & SAFETY CODE CODE ANN. §481.115(West 2010).                                 Mr.

Robinson was placed on four years deferred adjudication supervision

pursuant to a plea agreement. I CR 32; IV RR 9.2 The State filed a

motion to adjudicate, Mr. Robinson entered true pleas all the allegations.

I CR 65; V RR 12. Following evidence and argument of counsel, the court

found Mr. Robinson guilty of the offense and sentenced him to three years

confinement. I CR 70-71; V RR 35.

       Notice of appeal was timely filed in on July 14, 2014. I CR 79. This

Brief is timely filed on or before January 28, 2015 following proper

extension granted by this Court.




page in the record.

       2
         References to the Reporter’s Record are designated “RR” with a roman numeral
preceding “RR” indicating the correct volume, and an arabic numeral following “RR” specifying
the correct page.
                                               2
                          ISSUES PRESENTED

ISSUE ONE: The Trial Court erred in imposing attorney fees following
a finding that Mr. Robinson was indigent and was appointed counsel.


ISSUE TWO: The District Clerk erred in including attorney fees in the
boll of costs following a finding that Mr. Robinson was indigent and was
appointed counsel.



                     STATEMENT OF THE FACTS

     DaVontae Robinson was indicted and charged with possessing a

controlled substance, cocaine in an amount more than one gram, but less

than four grams, a third degree felony. I CR 1. TEX. HEALTH & SAFETY

CODE ANN. §481.115 (a) and (c)(West 2010). Mr. Robinson entered a plea

of guilty to the charge, pursuant to an agreement and was placed on four

years deferred adjudication with a variety of conditions. I CR 32-36, 43-

45; III RR 29; IV RR 9.

     The State filed an application to proceed to final adjudication

alleging that (1) Mr. Robinson was placed on deferred adjudication; (2)

that he failed to report for March 2014; (3) that he failed to pay for

urinalysis testing on November 19, 2013; (4) that he failed to perform

community service restitution for a variety of months; (5) that he failed to
                                     3
pay supervision fees for three different months while on supervision; (6)

that he failed to pay court costs, including appointed counsel fees from

October 2011 through February 2012, August through October 2012,

December 2012 through March 2014; (7) that he failed to pay DPS

reimbursement pursuant to the plea agreement; (8) that he failed to pay

the $50 to the Tyler/Smith County Crimestoppers program; (9) that he

failed to complete the Drug Offender Education Program; and (10) that he

failed to attend and complete the Lifeskills program. I CR 53-58.

     Mr Robinson entered a plea of true to each of the paragraphs

alleged. I CR 65; V RR 12. Following evidence, the trial court granted the

State’s motion to proceed to final adjudication. The court found Mr.

Robinson guilty of the offense and assessed a three year sentence in the

Texas Department of Criminal Justice. No fine was ordered, but court

costs were ordered to be paid. I CR 70-71; V RR 35. Further discussion

of relevant facts is included below. Timely notice of appeal was filed. I CR

79. This appeal follows.




                                     4
                     SUMMARY OF ARGUMENT

     The error for this Court to consider involves the improper

assessment of court costs. The trial court improperly ordered

reimbursement of attorney fees after Mr. Robinson was found to be

indigent and was appointed counsel. The attorney fees were included in

the judgment placing him on probation. While the final judgment from

the trial court does not include the fee, the bill of costs prepared by the

clerk’s office does contain the improper assessment of fees and will be the

record used by the Smith County collections department following his

release from custody.




                                     5
                              ARGUMENT

Issue One Restated: The trial court erred in imposing attorney fees
following a finding that Mr. Robinson was indigent and was appointed
counsel.


Issue Two, Restated: The District Clerk erred in including attorney fees
following a finding that Mr. Robinson was indigent and was appointed
counsel.


                       A. Law on Attorney’s Fees

     A trial court has the authority to assess attorney’s fees against a

criminal defendant who received court-appointed counsel. TEX. CODE

CRIM. PROC. ANN. art. 26.05(g)(West 2010). Once a defendant has been

determined to be indigent, he is presumed to remain indigent for the

remainder of the proceedings unless a material change in his financial

circumstances occurs. TEX. CODE CRIM . PROC. ANN. art. 26.04(p) (West

2010). Before attorney’s fees may be imposed, the trial court must make

a determination supported by some factual basis in the record that the

defendant has financial resources to enable him to offset in whole or in

part the costs of the legal services provided. Johnson v. State, 405 S.W.3d

350, 354 (Tex. App. – Tyler 2013, no pet). If the record does not show any

material change in the defendant’s financial circumstances, the evidence

                                     6
will be insufficient to support the imposition of attorney’s fees. TEX. CODE

CRIM. PROC. ANN. art. 26.04(p); Mayer v. State, 309 S.W.3d 552, 553, 557

(Tex. Crim. App. 2013).

     Court costs are pre-determined, legislatively-mandated obligations

resulting from a conviction. See, e.g., TEX. GOV'T CODE ANN. §§

102.001-.142 (West 2010) (setting forth various court costs that a

convicted person "shall" pay).     A sentencing court shall impose the

statutory court costs at the time a defendant is sentenced. Armstrong v.

State, 340 S.W.3d 759 (Tex. Crim. App. 2011); TEX. GOV’T CODE ANN.

§102.021 (West 2010). Court costs are not punitive in nature and do not

have to be included in an oral pronouncement of a sentence. Weir v.

State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009).

     A cost is not payable by the person charged with the cost until a

written bill is produced or is ready to be produced, containing the items

of cost, signed by the officer who charged the cost or the officer who is

entitled to receive payment of the cost. TEX. CODE CRIM. PROC. ANN. art.

103.001 (West 2010). The clerk of the trial court is required to keep a fee

record, and a statement of an item therein is prima facie evidence of the

correctness of the statement. Owen v. State, 352 S.W.3d 542, 548 (Tex.
                                     7
App.—Amarillo 2011, no pet.) (citing TEX.CODE CRIM. PROC. ANN. art.

103.009(a), (c)). Until a certified bill of costs has been made part of the

record, a defendant has no obligation to pay court costs. Owen, 352

S.W.3d at 547 (citing Armstrong, 340 S.W.3d at 765; Williams v. State,

332 S.W.3d 694, 699 (Tex. App. – Amarillo 2011, pet. denied).

      If a criminal action is appealed, "an officer of the court shall certify

and sign a bill of costs stating the costs that have accrued and send the

bill of costs to the court to which the action or proceeding is transferred or

appealed." TEX. CODE CRIM. PROC. ANN. art. 103.006 (West 2010).




                          B. Standard of Review

      The imposition of court costs upon a criminal defendant is a

“nonpunitive recoupment of the costs of judicial resources expended in

connection with the trial of the case.” Johnson v. State, 423 S.W.3d 385,

390 (Tex. Crim. App. 2014). When the imposition of court costs is

challenged on appeal, the court reviews the assessment of costs to

determine if there is a basis for the cost, not to determine if there is

sufficient evidence offered at trial to prove each cost. Id.

                                      8
     The standard for reviewing a legal sufficiency challenge is whether

any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. at

315-16, 99 S. Ct. at 2786-787; see also Mayer v. State, 309 S.W.3d 552,

557 (Tex. Crim. App. 2010)(sufficiency review of evidence to support order

of repayment of attorney fees as costs).

     A challenge to a withdrawal of funds notification is reviewed for an

abuse of discretion. Williams, 332 S.W.3d at 698. A trial court abuses

its discretion when it acts “without reference to any guiding rules and

principles. Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005);

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991). The

reviewing court may modify a withdrawal order on direct appeal if the

evidence is insufficient to support the assessment of court costs. Johnson

v. State, 405 S.W.3d at 355.




                     C. Application to These Facts

     Mr. Robinson has been represented at all times following the initial

appearance by appointed counsel. The record contains three different

                                    9
orders appointing counsel. I CR 13, 61 and 74. The record contains one

pauper’s oath which was granted by the trial court and was not contested

during any of the proceedings in this case. I CR 11-12. Following this

pauper’s oath application, Mr. Robinson was appointed counsel. I CR 13.

Another attorney was appointed for the revocation proceedings. I CR 61.

A third attorney was appointed for the appeal of this case. I CR 74. A

motion was filed with the trial court seeking a free reporter’s record on

appeal. I CR 83-85. This motion was granted by the trial court without

opposition from the State of Texas. I CR 86.

     The application to proceed to final adjudication included an

allegation that Mr. Robinson failed to pay court cost (sic), including any

appointed counsel fees. I CR 56, ¶ 6. The trial court also commented on

the failure to pay court costs. V RR 34, lines 16-18. The trial court

ordered Mr. Robinson to pay any unpaid taxable court costs. V RR 35.

     The September 15, 2011 order placing Mr. Robinson on deferred

adjudication supervision included $673.00 in court costs. I CR 46-47. The

bill of costs prepared by the District Clerk’s Office on July 10, 2014

matches this amount. I CR 73. The final judgment signed July 9, 2014

reflects a balance of $73.00 for court costs, even though the bill of costs
                                    10
reflects a balance of $373.00. I CR 73 and 70-71.

     The majority of the items listed on the bill of costs appear to be

properly assessed costs. I CR 73. The properly assessed costs equal

$373.00 in court costs. However, a $300 fee was assessed for receiving

appointed counsel. I CR 73.

     There is no evidence to contest the finding that Mr. Robinson was

found indigent. Assessment of attorney’s fees following a finding of

indigence is improper. While the final judgment does not include the

attorney’s fee, the bill of costs does, and court costs, including attorney

fees were improperly collected by the probation department impacting,

among other things the restitution owed. Why the bill of costs contains

the fee after the judgment was prepared and signed is not known.




                    D. Remedy and Relief Requested

     The fee seeking reimbursement for the appointed attorney was

improperly assessed by the court and the clerk’s office. The judgment and

the bill of costs should be modified to reflect the amount of proper taxable

court costs due.

                                     11
                         PRAYER FOR RELIEF

     WHEREFORE, PREMISES CONSIDERED, Counsel respectfully

prays that this Court modify the judgment of the trial court and order the

Clerk to prepare and file an amended bill of costs without the improperly

assessed attorney fee.



                                     Respectfully submitted,


                                     /s/ James Huggler
                                     James W. Huggler, Jr.
                                     State Bar Number 00795437
                                     100 E. Ferguson, Suite 805
                                     Tyler, Texas 75702
                                     903-593-2400
                                     903-593-3830 fax
                                     ATTORNEY FOR APPELLANT




                                    12
                      CERTIFICATE OF SERVICE


A true and correct copy of the foregoing Brief of the Appellant has been
forwarded to counsel for the State by electronic filing on this the 27th day
of January, 2015.


/s/ James Huggler
James W. Huggler, Jr.



Attorney for the State:
Mr. Michael West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702



                   CERTIFICATE OF COMPLIANCE

I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 2,618 words as counted by
Corel WordPerfect version x5.


/s/ James Huggler
James Huggler




                                     13
