              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                        NO. PD-1757-13

                         TAWONA SHARMIN RILES, Appellant

                                                 v.

                                   THE STATE OF TEXAS

            ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE SEVENTH COURT OF APPEALS
                             POTTER COUNTY

        J OHNSON, J., filed a dissenting opinion.

                             DISSENTING OPINION

        Article 42.12, sec. 11(b) of the Texas Code of Criminal Procedure states, “A judge may not

order a defendant to make any payments as a term or condition of community supervision, except

for fines, court costs, restitution to the victim, and other conditions related personally to the

rehabilitation of the defendant or otherwise expressly authorized by law. The court shall consider

the ability of the defendant to make payments in ordering the defendant to make payments under this

article.”

        Appellant clearly had appointed counsel, and was, therefore, indigent. Our case law provides

that, once declared indigent, a defendant remains so until a change in financial circumstances is
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shown. TEX . CODE CRIM . PROC. art. 26.04(p); Wiley v. State, 410 S.W.3d 313, 317 (Tex. Crim. App.

2013). Article 26.05(g) states, “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, the court shall order the defendant to pay during the pendency of the charges or,

if convicted, as court costs the amount that it finds the defendant is able to pay.” Attorney fees are

not fines, restitution, or related personally to the rehabilitation of the defendant. Nor are they court

costs unless and until the trial court, not the probation officer or the county collection department,

determines that the defendant has an ability to pay, in whole or in part, the billed attorney fees: the

defendant’s financial circumstances have to have changed such that the defendant is no longer

indigent. I find nothing in this record to demonstrate that the trial court made an inquiry as to

appellant’s ability to pay. I therefore must conclude that the trial court had no authority to assess

attorney fees because it did not consider appellant’s ability to pay. Without authority to act, the

court’s order was void. A void order may be challenged at any time. See Nix v. State, 65 S.W.3d

664, 667-68 (Tex. Crim. App. 2001) (“A void judgment is a ‘nullity’ and can be attacked at any

time.”).

        I also agree with Justice Pirtle that the majority of the court of appeals reads Wiley v. State,

410 S.W.3d 313 (Tex. Crim. App. 2013), too broadly. He set out the timing of the events at issue.

        Order of deferred adjudication signed on March 3, 2010, purports to have an attached bill of
               costs.

        Attorney fee voucher signed March 4, 2010.

        Bill of costs was issued on March 19, 2010, two weeks after the order was signed.

        Motion to revoke filed on August 25, 2011.
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       Appellant adjudicated on August 22, 2012.

       Judgment is signed on August 23, 2012, order purports to have a bill of costs attached.

       Bill of costs issued on August 24, 2012.

Justice Pirtle then presented his reasons for concluding that appellant did not forfeit her claim.

               In Wiley the Court of Criminal Appeals clarified a split between the
       intermediate courts of appeal concerning whether an appellant can raise a sufficiency
       of the evidence claim concerning the reimbursement of court-appointed attorney’s
       fees imposed during an original plea proceeding resulting in straight probation in a
       later appeal from the revocation of that community supervision. There, the Court
       held that a defendant is procedurally defaulted under Manuel v. State, 994 S.W.2d
       658, 661-62 (Tex. Crim. App. 1999), from asserting error that “could readily have
       been raised . . . in a direct appeal from the initial judgment imposing community
       supervision.” Wiley, 410 S.W.3d at 320 (emphasis added). In reaching its
       conclusion, the Court of Criminal Appeals emphasized that the “record in this case
       shows the appellant was well aware of the existence and amount of attorney fees that
       were imposed for his court appointed representation during the [original] plea
       proceedings.” Id. In Wiley the judgment itself contained a handwritten notation on
       the face of the document stating the exact dollar amount of attorney’s fees being
       ordered. The opinion of the Court also emphasized the fact that the Bill of Costs was
       dated the same day as the original judgment and was attached to that judgment,
       giving rise to the presumption that the appellant was fully aware of the full extent of
       the court’s order when he signed the judgment. Id.
               While the majority here reaches the conclusion that the pertinent facts of this
       case were substantially akin to those in Wiley, that simply is not the case. Wiley
       involved the revocation of an order of “straight probation,” where, in the original
       proceeding, a judgment was entered in addition to an order stating the terms and
       conditions of community supervision; whereas this case involves the revocation of
       an order deferring an adjudication of guilt where no judgment “independently
       imposed an obligation to repay attorney fees–‘as court costs.’” Id. at 320. Wiley
       involved a judgment, signed by the defendant, expressly stating the exact dollar
       amount of attorney’s fees subsequently being contested; whereas here, the Order of
       Deferred Adjudication references an attachment (not even in existence, much less
       actually attached when executed) concerning an undetermined amount of attorney’s
       fees (to be subsequently awarded), which were to be paid in accordance with a
       payment arrangement (to be subsequently made) with a representative of the county
       “Collections Department.”
               The majority also posits that Manuel brings this case into the context of a
       procedural default because, like here, the revocation of an order of deferred
       adjudication was involved in that case. In Manuel the Court of Criminal Appeals
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       held that an appellant was procedurally barred from contesting the sufficiency of the
       evidence relating to the issue of guilt in any proceeding other than “appeals taken
       when community supervision is originally imposed . . ..” Manuel, 994 S.W.2d at
       661. Because Manuel could have questioned the sufficiency of the evidence
       substantiating his guilt immediately after being placed on community supervision,
       he was procedurally barred from raising that issue when his deferred adjudication
       was revoked. Id. But Manuel is factually distinguishable from this case. In Manuel
       the appellant sought to contest a finding essential to the original order of deferred
       adjudication–a finding of guilt. Whereas here, the Appellant is contesting a factual
       determination–the ability to repay $1,000 in court-appointed attorney’s fees–that was
       not even made at the time she was placed on deferred adjudication. At best, all the
       trial court determined in this case was that the Appellant had the ability to make
       some monthly payment (as yet undetermined) that would be made in accordance with
       a payment agreement that would be negotiated in the future with the county
       collections department. [FN4 Contrary to the majority, I believe Manuel limits the
       extent of forfeiture only to those issues which an appellant had notice of at the time
       of the original plea. Here, the Appellant did not have notice of the full extent of
       attorney’s fees ordered because the amount of those fees was, as yet, undetermined.
       Furthermore, having the ability to make a monthly payment is not the same thing as
       having the ability to pay the lump sum amount, a finding essential to the imposition
       of attorney’s fees under article 26.05 of the Texas Code of Criminal Procedure.
       Therefore, it cannot be said that Appellant had notice of that essential finding.]
               Accordingly, the procedural default considerations in Manuel and Wiley
       simply are not present in this case and it is neither reasonable nor practical to assume
       that a defendant being placed on deferred adjudication would contest by means of an
       appeal a condition of community supervision he or she reasonably expected to meet.
       [FN5 Here, the Order of Deferred Adjudication did not contemplate the payment of
       court costs and attorney’s fees in a lump sum amount. The condition of supervision
       only required the Appellant to make monthly payments in accordance with a payment
       arrangement to be made after taking into consideration the Appellant’s future income
       earning ability.] There being no independent judgment to contest, the facts here are
       clearly distinguishable from Wiley where a judgment imposed a clear and specific
       present obligation to pay a specific amount of attorney’s fees. Furthermore, there
       being no essential factual determination made at the time of the original plea
       concerning the Appellant’s ability to pay the lump sum attorney’s fees ordered, this
       case is distinguishable from Manuel.

Riles v. State, 417 S.W.3d 606, 611-12 (Tex. App.–Amarillo, 2013) (Pirtle, J., dissenting).

       I dissent.

Filed: February 4, 2015
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