                                                                      ACCEPTED
                                                                  12-14-00163-cr
                                                     TWELFTH COURT OF APPEALS
                                                                   TYLER, TEXAS
                                                             1/5/2015 6:18:18 PM
                                                                    CATHY LUSK
                                                                          CLERK

              ORAL ARGUMENT REQUESTED

                   NO. 12-14-00163-CR            FILED IN
                                          12th COURT OF APPEALS
                                               TYLER, TEXAS
               IN THE COURT OF APPEALS     1/5/2015 6:18:18 PM
                 12TH JUDICIAL DISTRICT        CATHY S. LUSK
                                                   Clerk
                       TYLER, TEXAS



                    KATHIE SPEARS,
                      APPELLANT


                             VS.


                  THE STATE OF TEXAS,
                       APPELLEE


       ON APPEAL IN CAUSE NUMBER 007-1236-05
        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:
    Kathie Spears

APPELLANT’S TRIAL COUNSEL
    Rhett Darby
    PO Box 192
    Athens, Texas 75751

    O.W. Loyd
    1507 Frost
    Gilmer, Texas 75644
    903-843-3469

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

APPELLANT’S APPELLATE COUNSEL
    Kurt Noell (2007 appeal)
    231 S. College
    Tyler, Texas 75702
    903-597-9069

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




                                  ii
APPELLEE
    The State of Texas

APPELLEE’S TRIAL COUNSEL
    M. Brent Ratekin
    Daphne Session
    Jason Parrish
    Steve Comte
    Whitney Tharpe
    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)

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 sentencing Ms. Spears when
       the trial court had no jurisdiction over the case because the
       mandate had not yet issued from the Court of Appeals.

       ISSUE TWO: The trial court erred in imposing attorney fees
       following a finding that Ms. Spears was indigent and was
       appointed counsel.

       ISSUE THREE: The District Clerk erred in including attorney
       fees following a finding that Ms. Spears was indigent and
       appointed counsel.

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

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

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

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

ISSUE TWO, RESTATED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

ISSUE THREE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9


                                                  iv
        A. Law on Attorney Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
        B. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
        C. Application to These Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
        D. Remedy and Relief Requested.. . . . . . . . . . . . . . . . . . . . . . . . . 15

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17




                                                    v
                               TABLE OF AUTHORITIES
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West 2013).. . . . . . . . . . . . . 9
TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West 2013). . . . . . . . . . . . . . 9
TEX. CODE CRIM. PROC. ANN. art. 103.001 (West 2013). . . . . . . . . . . . . 10
TEX. GOV’T CODE ANN. §§ 102.001-.142 (West 2013). . . . . . . . . . . . . . . 10
TEX. GOV’T CODE ANN. § 102.021 (West 2013). . . . . . . . . . . . . . . . . . . . 10
TEX. GOV’T CODE ANN. § 103.006 (West 2013). . . . . . . . . . . . . . . . . . . . 11
TEX. PENAL CODE ANN. §31.03(a) and (e)(4)(A) (West 2001). . . . . . . . . . 3
TEX. PENAL CODE ANN. § 33.09 (West 2001).. . . . . . . . . . . . . . . . . . . . 1, 3


CASES
Arbuckle v. State, 105 S.W.2d 219 (Tex. Crim. App. 1937). . . . . . . . . . . 7
Armstrong v. State, 340 S.W.3d 759 (Tex. Crim. App. 2011). . . . . 10, 11
Carter v. State, 510 S.W.2d 323 (Tex. Crim. App. 1974). . . . . . . . . . . . . 7
Coats v. State, 788 S.W.2d 674 (Tex. App. – Corpus Christi
   1990, no pet). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Deifik v. State, 58 S.W.3d 794 (Tex. App. – Fort Worth 2001). . . . . . . . 8
Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001). . . . . . . . . . . . 7
Heartfield v. Thaler, 403 S.W.3d 234 (Tex. Crim. App. 2013). . . . . . . . . 7
Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005).. . . . . . . 12
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,
   61 L. Ed. 2d 560 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). . . . . . 11
Johnson v. State, 405 S.W.3d 350, 354 (Tex. App. – Tyler
   2013, no pet). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12
Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010). . . . . 10, 12
                                                   vi
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991). . . 12
Morris v. State, 658 S.W.2d 310 (Tex. App. – Houston [1st Dist.]
    1983, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Nix v. State, 65 S.W.3d 664 (Tex. Crim. App. 2001). . . . . . . . . . . . . . . . 8
Owen v. State, 352 S.W.3d 542, 5148 (Tex. App. – Amarillo
    2011, no pet). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
Spears v. State, No. 12-07-00168-CR, 2008 Tex. App. LEXIS 98
    (Tex. App. – Tyler 2008, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 6
Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009). . . . . . . . . 10
Whetstone v. State, 786 S.W.2d 361 (Tex. Crim. App. 1990). . . . . . . . . 7
Williams v. State, 332 S.W.3d 694, 699 (Tex. App. – Amarillo
    2011, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12



RULES
TEX. R. APP. PROC. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
TEX. R. APP. PROC. 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1




                                                   vii
                                 NO. 12-14-00163-CR


KATHIE SPEARS                                 §   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:


       Comes now Kathie Spears, (“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 007-1236-05 for the state

jail felony offense of theft. I CR 11; see TEX. PENAL CODE ANN. §33.09

       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
(West 2001). Following a bench trial, the case was appealed to this court

and affirmed. I CR 88-90, 99. Spears v. State, No. 12-07-00168-CR, 2008

Tex. App. LEXIS 98 (Tex. App. – Tyler, 2008 no pet.). The State filed a

motion to revoke her probation, Ms. Spears entered true pleas to some

allegations, and not true to others. I CR 134-137, 144; I RR 132. The trial

court only found the allegations to which Ms. Spears plead too to be true.

I RR 46. The court imposed a two year sentence with the outstanding

$9,173 in restitution and outstanding court costs. I RR 46.

       Notice of appeal was timely filed in on June 23, 2014. I CR 157.

This Brief is timely filed on or before January 5, 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 SENTENCING MS.
SPEARS WHEN THE TRIAL COURT HAD NO JURISDICTION OVER
THE CASE BECAUSE THE MANDATE HAD NOT YET ISSUED FROM
THE COURT OF APPEALS.


ISSUE TWO: THE TRIAL COURT ERRED IN IMPOSING ATTORNEY
FEES FOLLOWING A FINDING THAT MS. SPEARS WAS INDIGENT
AND WAS APPOINTED COUNSEL.


ISSUE THREE: THE DISTRICT CLERK ERRED IN INCLUDING
ATTORNEY FEES IN THE BILL OF COSTS FOLLOWING A FINDING
THAT MS. SPEARS WAS INDIGENT AND WAS APPOINTED
COUNSEL.



                    STATEMENT OF THE FACTS

     Kathie Spears was indicted for the state jail felony offense of theft.

I CR 1. TEX. PENAL CODE ANN. §§31.03(a) and (e)(4)(A) and 31.09(West

2001). Following a bench trial, the case was appealed to this court and

the judgment was affirmed. CR 88-90; Spears v. State, No. 12-07-00168-

CR, 2008 Tex. App. LEXIS 98 (Tex. App. – Tyler, 2008, no pet.). On both

April 2, 2007 and March 5, 2008, Ms. Spears was sentenced to two years

probated for five years and ordered payment of $15,373 in restitution. I

CR 71-72, 93-94. The court imposed a variety of conditions of supervision.
                                    3
I CR 73-76, 95-98.

     The State filed two different motions to revoke the probation. I

CR123-128, 134-137. The first motion was dismissed and the probation

was modified. I CR 132, 131. The second motion to revoke included the

following allegations: (1) that Ms. Spears was placed on probation; (2) that

she failed to pay the supervision fee to probation; (3) that she failed to

send in mail-in reports for three months; (4) she failed to obtain a GED

and failed to provide proof of obtaining a GED to probation; (5) she failed

to pay an outstanding balance of restitution of $11,330.00 to the probation

department; and (6) that she was delinquent in paying court costs

included fees for appointed counsel. I CR 134-137.

     Ms. Spears entered a plea of true to identity, the paragraphs

regarding the mail-in reports and the GED. I CR 144; I RR 13. The trial

court only found that she violated her probation on the two paragraphs to

which she entered pleas of true. I RR 46. Following evidence and the

argument of counsel, the court revoked Ms. Spears’ probation and

sentenced her to two years confinement. I CR 146-147; I RR 46. Further

discussion of relevant facts is included below. Timely notice of appeal was


                                     4
filed. I CR 157. This appeal follows.




                      SUMMARY OF ARGUMENT

     The first issue for the court to consider is whether the trial court

even had jurisdiction top place Ms. Spears on probation. Following a

bench trial, the trial court found Ms. Spears guilty and placed her on

probation. This Court affirmed the judgment. The trial court formally re-

sentenced Ms. Spears on March 5, 2008. I CR 93-94. However, the

mandate in the case was not issued until March 7, 2008. Until the

mandate was issued, the trial court had no jurisdiction to take any action,

and any action taken on orders entered prior to the issuance of the

mandate were void.

     The error for this Court to consider in Issues Two and Three involves

the improper assessment of court costs. The trial court improperly ordered

reimbursement of attorney fees after Mr. Spears was found to be indigent

and was appointed counsel. The attorney fees were not included in the

judgment placing her on probation, but were assessed and partially

collected. While the final judgment from the trial court does not include

                                        5
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.




                              ARGUMENT

ISSUE ONE, RESTATED: THE TRIAL COURT ERRED IN
SENTENCING MS. SPEARS WHEN THE TRIAL COURT HAD NO
JURISDICTION OVER THE CASE BECAUSE THE MANDATE HAD
NOT YET ISSUED FROM THE COURT OF APPEALS.



     On April 2, 2007, the trial court entered a judgment against Ms.

Spears assessing her sentence at two years in a state jail probated for a

term of five years. I CR 71-72. That judgment was appealed to the

Twelfth Court of Appeals. On January 9, 2008, the Court issued an

opinion and judgment affirming the judgment of the trial court. I CR 88-

90. Spears v. State, No. 12-07-00168-CR, 2008 Tex. App. LEXIS 98, (Tex.

App. – Tyler 2008, no pet.). The trial court held a hearing on March 5,

2008 sentencing Ms. Spears again to two years probated for a term of five

years. I CR 93-94. That same date the trial court also entered the terms

and conditions of probation which were later the subject of the revocation

                                    6
proceedings in 2014. I CR 95-98. However, this Court did not issue the

Mandate in the case until March 27, 2008. I CR 101.

     Until the mandate from the court of appeals issues, the case is still

on appeal. Heartfield v. Thaler, 403 S.W.3d 234 (Tex. Crim. App. 2013).

A judgment of conviction cannot be used for enhancement purposes until

the conviction has been affirmed. Arbuckle v. State, 105 S.W. 2d 219 (Tex.

Crim. App. 1937); Carter v. State, 510 S.W.2d 323 (Tex. Crim. App. 1974).

See also Coats v. State, 788 S.W.2d 674, 676 (Tex. App. – Corpus Christi

1990, no pet.).

     Ordinarily, the validity of a conviction, from which no appeal was

taken, is not reviewable in the appeal of a subsequent revocation order.

Whetstone v. State, 786 S.W.2d 361, 363 (Tex. Crim. App. 1990), overruled

on other grounds by Gollihar v. State, 46 S.W.3d 243, 249-50, 256-57 (Tex.

Crim. App. 2001). An exception lies for a void judgment which recognizes

there are some rare situations in which a trial court’s judgment is

accorded no respect due to a complete lack of power to render the

judgment in question. A void judgment is a “nullity” and can be attacked

at any time. If the original judgment imposing probation was void, then

the trial court would have no authority to revoke probations, since, with
                                    7
no judgment imposing probation (because it is a nullity), there is nothing

to revoke. Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App. 2001).

     While this situation was not specifically included in the nearly

exclusive list in Nix, the trial court lacked jurisdiction over the case to

enter a judgment prior to the mandate being issued. The trial court was

without power to enter the order placing Ms. Spears on probation until

after the mandate was issued by the Court of Appeals. Any order entered

between the first notice of appeal and the mandate is void because the

trial court had no jurisdiction. Deifik v. State, 58 S.W.3d 794 (Tex. App. -

Fort Worth 2001). The proper remedy is to return the parties to the

position prior to the void order. Morris v. State, 658 S.W.2d 310, 311-12

(Tex. App. – Houston [1st Dist.] 1983, no pet.).

     If this Court agrees, the proper remedy is to reverse the judgment

of the trial court placing Ms. Spears on probation and remand to the trial

court placing the parties in the same position they occupied following this

Court’s first opinion.




                                     8
SSUE TWO, RESTATED: THE TRIAL COURT ERRED IN IMPOSING
ATTORNEY FEES FOLLOWING A FINDING THAT MS. SPEARS WAS
INDIGENT AND WAS APPOINTED COUNSEL.


ISSUE THREE RESTATED: THE DISTRICT CLERK ERRED IN
INCLUDING ATTORNEY FEES FOLLOWING A FINDING THAT MS.
SPEARS 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 2013). Once a defendant has been

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

remainder of the proceedings unless a material change in her financial

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

2013). 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

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

                                     9
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 2013) (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 2013). 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 2013). 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.

App.—Amarillo 2011, no pet.) (citing TEX.CODE CRIM. PROC. ANN. art.
                                    10
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 2013).




                          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.

      The standard for reviewing a legal sufficiency challenge is whether

                                      11
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

     Ms. Spears has been represented at all times following the initial

trial of the case by appointed counsel. The record contains two different

orders appointing counsel. I CR . Following a pauper’s oath application,

                                    12
Ms. Spears was appointed counsel for purposes of the first appeal. I CR

81-83. Another attorney was appointed for the first motion to revoke. I

CR 118. A third attorney was appointed for the second motion to revoke.

I CR 139. Finally, appellate counsel was appointed for this appeal. I CR

158. A motion was filed with the trial court seeking a free reporter’s

record on appeal. I CR 161-163. This motion was granted by the trial

court without opposition from the State of Texas. I CR 164.

     The application to proceed to final adjudication included an

allegation that Ms. Spears failed to pay court cost (sic), including any

appointed counsel fees. I CR 137, ¶ 6. The trial court ordered Ms. Spears

to pay any unpaid taxable court costs. I RR 46.

     The March 5, 2008 order placing Ms. Spears on probation included

$263.00 in court costs. I CR 93. This amount matches the judgement

issued April 2, 2007. I CR 71. However, the bill of costs prepared by the

District Clerk’s Office on June 20, 2014 does not match either of those

amounts. I CR 151-152. The final judgment signed June 18, 2014 reflects

a zero balance for court costs, even though the bill of costs reflects a

balance of $200. I CR 146-151.


                                   13
     The majority of the items listed on the bill of costs appear to be

properly assessed costs. I CR 151. The properly assessed costs equal

$263.00 in court costs. However, a $300 fee was assessed for receiving

appointed counsel and a $350 “Refund” was assessed and added against

Ms. Spears totaling $913.00 in court costs. I CR 151.

     There is no evidence to contest the finding that Ms. Spears 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.

     Probation collected at least $100 of the attorney fees and applied

that amount to the court costs, instead of restitution. I RR 18. From the

bill of costs, it also appears that probation collected $350 which was then

forwarded to the Clerk’s Office for payment of the “Refund”. I CR 151.




                                    14
                    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, and the probation department or clerk’s office should be

ordered to apply the improperly collected monies to restitution in this

case.




                                     15
                         PRAYER FOR RELIEF

     WHEREFORE, PREMISES CONSIDERED, Counsel respectfully

prays that this Court reverse the judgment of the trial court or in the

alternative modify the judgment of the trial court and the bill of costs to

eliminate the court costs not supported by the record.



                                     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




                                    16
                      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 5th 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 3,638 words as counted by
Corel WordPerfect version x5.


/s/ James Huggler
James Huggler




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