                                                                                   ACCEPTED
                                                                               12-15-00112-CR
                                                                  TWELFTH COURT OF APPEALS
                                                                                TYLER, TEXAS
                                                                          9/30/2015 3:31:04 PM
                                                                                     Pam Estes
                                                                                        CLERK


                     ORAL ARGUMENT NOT REQUESTED

                                                               FILED IN
                            NO. 12-15-00112-CR 
        12th COURT OF APPEALS
                     TRIAL COURT CAUSE NO. B-21,601 
        TYLER, TEXAS
                                                        9/30/2015 3:31:04 PM
                                                               PAM ESTES
                       IN THE 12TH COURT OF APPEALS 
            Clerk
                               TYLER,TEXAS 





                  MELISSA BROWNING HERNANDEZ 

                            Appellant 


                                    vs.

                            THE STATE OF TEXAS 

                                 Appellee 




        APPEAL FROM THE 173 rd JUDICIAL DISTRICT COURT 

                  HENDERSON COUNTY, TEXAS 

                      CAUSE NO. B-21,601 

         HONORABLE CARTER W. TARRANCE, JUDGE PRESIDING 




                         BRIEF FOR THE STATE 




Daniel Cox
Assistant District Attorney
Henderson County
109 W. Corsicana St., Ste. 103
Athens, Texas 75751
State Bar #24074085
903.675.6100




                                 Page 0 of8
       IDENTIFICATION OF THE PARTIES AND COUNSEL 

ApPELLANT:

     Melissa Browning Hernandez

ApPELLANT'S COUNSEL:

     Linda Altier
     1527 E. Fifth St. 

     Tyler, Texas 75701 

     903.592.4232 


ApPELLEE:

     The State of Texas

ApPELLEE'S COUNSEL:

     Jenny Palmer
     Henderson County District Attorney's Office
     109 West Corsican Street
     Athens, Texas 75751
     903.675.6100
     903.675.6196 (Fax)

     Daniel Cox
     Henderson County District Attorney's Office
     109 West Corsican Street
     Athens, Texas 75751
     903.675.6100
     903.675.6196 (Fax)

PRESIDING JUDGE(S):

     The Honorable Judge Carter W. Tarrance




                                 Page lofS
                               TABLE OF CONTENTS 


SUBJECT MAITER:                                                                        PAGE:

Identification of the Parties and Counsel----------------------------------------------!

1ralJle ofContents---------------------------------------------------------------------------2

Index of Authorities ------------------------------------.-------.----------····---·--------3

Statement of the Case----------------------------------------------------------------------4

Appellant's Issues Presented---------------------------------------------------------- 4-5

Argument-------------------------------------------------------------------------------------5

Conclusion-----------------------------------------------------------------------------------5

Prayer---------------------------------------------------------------------------------------- 6

Certificate of Service---------------------------------------------------------------------- 7

Certificate of Compliance---------------------------------------------------------------- 7




                                          Page 2 of8
                        INDEX OF AUTHORITIES

                                      CASES

MEYER V. STATE, 309 S.W.3D 552 (TEX.-CRIM.-App. 2010) ............................5 





                                    Page 30f8
                                NO. 12-15-00112-CR 


MELISSA BROWNING HERNANDEZ                §                              IN THE   12TH
                                          §
VS.                                       §                      COURT OF APPEALS
                                          §
THE STATE OF TEXAS                        §                          TYLER, TEXAS



                                ApPELLEE'S BRIEF:

TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES
THEREOF:

       Comes now the State of Texas, by and through her attorney of record,

Henderson County Assistant District Attorney Daniel Cox, and respectfully

submits this brief on appeal.

                            STATEMENT OF THE CASE:


       Appellant was charged by indictment for the offense of Theft Over $20,000

From an Elderly Person (C.R. 2:1-3). The trial Court found that the appellant was

indigent and appointed Linda Altier to represent the appellant (CR. 1:21). On

February 5, 2015, the appellant waived her right to a trial by jury, entered a gUilty

plea and elected to have the trial Court assess punishment (CR. 1:23-28). On

April 16,2015, after the completion of a pre-sentence investigation, the trial Court

heard evidence at a sentencing hearing (CR. 1: 36-39). At the conclusion of the

hearing, the trial Court sentenced the appellant to six years confinement in the

Texas Department of Corrections (CR. 1:26-29). Additionally, the trial Court




                                     Page 4 of8
ordered that the appellant repay the cost of the court appointed attorney's fees as a

part of the appellant's sentence (C.R. 1:36-37)

                          APPELLANT'S ISSUES PRESENTED:

   I. 	      Was the evidence sufficient to support the trial court's order for
             Appellant to pay attorney's fees?

   The State feels that the judgment should be modified to remove the

requirement of repayment of attorney's fees. Under Meyer v. State, once a

defendant is found by the trial court to be indigent, there must be an affirmative

finding by the trial court of an ability to repay court appointed attorney's fees.

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

   At the punishment hearing, there was no evidence presented by either party

that would show an ability to pay. As such, there is no evidence in the record to

show that the appellant was no longer indignant at the time and able to repay

attorney's fees.

                                  CONCLUSION

          There is an absence of evidence to show that Appellant, after being found

indigent and sentenced to the penitentiary, is "able to pay" or has any financial

resources that enable her to pay the attorney's fees assessed in the court's order

and judgment as required. We concur that the judgment should be modified in

accordance with the request of Appellant to delete attorney's fees and court costs.




                                      Page 5 of8
                                   PRAYER


       WHEREFORE, premises considered, the State, for the reasons set forth in

this brief, requests that this Honorable Court orders the judgment be reformed and

that the requirement to pay attorney's fees be deleted.




                                          Daniel Cox
                                          Assistant District Attorney
                                          Henderson County Judicial Complex
                                          109 W. Corsicana Street, Ste. 103
                                          Athens, Texas 75751
                                          Phone: (903) 675-6100
                                          Facsimile: (903) 675 - 6196
                                          State Bar No. 24074085




                                     Page 6 of8
                       CERTIFICATE OF SERVICE

       I, Daniel Cox, do hereby certify that a true and correct copy of the
foregoing Brief for the State has been served upon the Appellant, Melissa
Browning Hernandez, by emailing a copy of the same to his attorney of record
Linda Altier at              on this the _ day of      , 2015.




                                                 Henderson County, Texas

                   CERTIFICATE OF COMPLIANCE

        Pursuant to Rule 9.4(i)(3), the undersigned attorney certifies this    rief
complies with the length compliance of the Texas Rules of Appellate
that the brief has 866 words.




                                                  ssistant District Attorney
                                                 Henderson County, Texas




                                    Page 7 ofS
