                                                                               ACCEPTED
                                                                           06-15-00062-CR
                                                                SIXTH COURT OF APPEALS
                                                                      TEXARKANA, TEXAS
                                                                      7/6/2015 12:29:27 PM
                                                                          DEBBIE AUTREY
                                                                                    CLERK

                              No. 06-15-00062-CR
                         IN THE COURT OF APPEALS
                                                         FILED IN
                                                  6th COURT OF APPEALS
               FOR THE SIXTH APPELLATE DISTRICT TEXARKANA, TEXAS
                                                  7/6/2015 12:29:27 PM
__________________________________________________________________
                                                      DEBBIE AUTREY
                                                          Clerk
                           BILLY JOE WALDROUP,
                                    APPELLANT
                                        V.
                            THE STATE OF TEXAS,
                                    APPELLEE
__________________________________________________________________
                             APPELLANT’S BRIEF
__________________________________________________________________
                       On appeal from Cause No. 44403-B
                            in the 124th District Court
                              Gregg County, Texas
__________________________________________________________________
Robert Lee Cole, Jr.
409 N. Fredonia Street, Suite 101
Longview, TX 75601
SBOT: 04547800
903-236-6288 Phone
903-236-5441 Fax
rcolejd@gmail.com
Attorney for Appellant

                        Oral Argument is Not Requested
                  IDENTITY OF PARTIES AND COUNSEL

Billy Joe Waldroup, Appellant
Gregg County Jail
101 E. Methvin Street, Suite 635
Longview, TX 75601

Robert L. Cole, Jr.
Appellant’s Counsel on Appeal
409 N. Fredonia Street, Suite 101
Longview, TX 75601

Craig L. Bass
Appellant’s Trial Counsel
440 N. Fredonia Street
Longview, TX 75601

Chris Parker
Trial Prosecutor
Gregg County District Attorney’s Office
101 E. Methvin Street, Suite 333
Longview, TX 75601

Zan Colson Brown
Appellate Prosecutor
Gregg County District Attorney’s Office
101 E. Methvin Street, Suite 333
Longview, TX 75601

Honorable Alfonso Charles
Presiding Trial Judge
124th District Court
101 E. Methvin Street, Suite 447
Longview, TX 75601




                                          i
                             TABLE OF CONTENTS

Identity of Parties and Counsel…………………………………………………… i

Table of Contents…………………………………………………………………. ii

Index of Authorities….…………………………………………………………... iii

Statement of the Case…………………………………………………………….. 1

Statement Regarding Oral Argument…………………………………………….. 1

Issue Presented…………………………………………………………………… 1

      The trial court erred when it ordered appellant, who was determined to be

indigent, to pay court appointed attorney’s fees.


Statement of Facts………………………………………………………………… 2

Summary of the Argument………………………………………………………... 3

Argument………………………………………………………………………….. 3

Prayer……………………………………………………………………………… 5

Certificate of Compliance…………………………………………………………. 6

Certificate of Service……………………………………………………………… 6




                                          ii
                         INDEX OF AUTHORITIES



CASES                                                           PAGE

Abron v. State, 997 S.W.2d 281 (Tex.App.-Dallas 1998) …………….        5

Armstrong v. State, 340 S.W.3d 759, 765-66 (Tex.Crim.App.2011) ….   4

Bigley v. State, 865 S.W. 26, 27-28 (Tex.Crim.App. 1993) …………… 4

Cates v. State, 402 S.W.3d 250 (Tex.Crim.App. 2013) ………………… 4

Martin v. State, 405 S.W. 35 944, 946-47 (Tex.App.-Texarkana 2013,
no pet.). ………………………………………………………………… 4



CODES, RULES AND CONSTITUTIONAL PROVISISIONS

Tex. Code Crim.Pro. 26.05g …………………………………………… 3

Tex.R.App.P. 43.2 ……………………………………………………… 4,5




                                     iii
                           STATEMENT OF THE CASE

      On 4 December 2014, Appellant was charged in Cause No. 44403-B with

Assault Family Violence by Impeding Breath or Blood, Tex. Penal Code 22.01

(b)(2)(B), alleged to have occurred on or about 11October 2014. (CR: p. 4).

Appellant waived his right to a jury and entered a plea of guilty to the charge 23

March 2015 without the benefit of a plea bargain agreement and the case was

ordered to be reset for a sentencing hearing. (CR: pp. 11-16) and (RR: Vol 2, pp. 6-

15). On 15 April 2015 the Trial Court found appellant guilty, and after hearing

evidence, sentenced Appellant to ten years confinement and further ordered

appellant to pay all fines and costs, and restitution (CR: pp. 33-34). No motion for

new trial was filed in this cause. Appellant timely filed his notice of appeal on 20

April 2015 (CR: p. 37). The Reporter’s record was filed 16 June 2015. Appellant’s

brief is due on or before 16 July 2015.

                STATEMENT REGARDING ORAL ARGUMENT

      Appellant does not request oral argument.

                               ISSUES PRESENTED

      Issue No. 1- The trial court erred when it ordered appellant, who was

determined to be indigent, to pay court appointed attorney’s fees.

                                          1
                            STATEMENT OF FACTS

      Billy Joe Waldroup, hereinafter referred to as “Waldroup” elected to enter a

plea of guilty before the trial court on the charge of Assault Family Violence by

Impeding Breath or Blood (RR: Vol. 2, pp. 6-7). The trial court admonished

Waldroup as to the consequences of his plea including his waiver of a right to jury

trial, the range of punishment, and the consequences of entering into an open plea.

(RR: Vol. 2, pp 7-15).

      At sentencing, the trial court inquired as to whether the case was given to

continue as an open plea and Waldroup confirmed. (RR: Vol. 3, p. 4). Appellee,

hereinafter referred to as “The State” rested and Waldroup then presented his case

with the testimony of Waldroup himself with both direct and cross-examination.

(RR: Vol. 3, pp.5-28).

      Waldroup’s trial counsel requested the Court to place Waldroup on a period

of probation (RR: Vol. 3, p.30). The State also gave closing statements (RR: Vol.

3, 30-32). The State argued that “this could have been enhanced to a 2-to-20 based

on his prior escape, he’s lucky to walk out of here with 10 years’ TDC, and I don’t

see why that’s not what should happen to him.” (RR: Vol. 3, p. 32).

      The trial court then sentenced Waldroup 10 years confinement with costs

assessed to include the repayment of court appointed attorney fees.

                                         2
                        SUMMARY OF THE ARGUMENT

      In the only issue, Appellant complains that the Honorable Judge Alfonso

Charles improperly assessed court costs in addition to the period of confinement

despite having previously determined that the defendant was indigent and without

a finding that Appellant had financial resources that would enable him to offset the

cash of legal services provided in violation of Texas Code of Criminal Procedure

Art. 26.05(g).



                                    ARGUMENT

      In 30 October 2014 the trial court determined that Appellant was indigent

and appointed counsel to represent him in the trial of this case (CR: pp. 18-19).

The trial court again appointed counsel to represent Appellant on this appeal (RR:

Vol. 3, p. 37).

      Texas Code Criminal Procedure Article 26.05 (g) (West Supp. 2014) gives

authority to a trial court to order the reimbursement of court appointed attorney

fees only in such a case 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

                                         3
provided, including any expenses and costs.”

      There was no mention anywhere during the verbal pronouncement of

sentence that Appellant had any financial resources at his disposal that enabled him

to pay his court-appointed attorney fees. (RR: Vol. 4, pp. 32-35). Further, the

verbal record is silent as to the payment of fines, costs, and court appointed

attorneys fees.

      The judgment, however, assesses attorney fees of $1062.50 and court costs

of $314.00 and ordered appellant to “pay all fines, court costs, and restitution as

indicated above.” (CR: pp. 33-34).

      The assessment for attorney’s fees is unlawful, “because the ability to pay

are critical elements necessary for a court to order payment for legal services

provided Armstrong v. State, 340 S.W. 3d 759, 765-66 (Tex. Crim. App. 2011).

The assessment of attorney’s fees is therefore erroneous and requires removal.

Cates v. State, 402 S.W.3d 250 (Tex. Crim. App. 2013); Martin v. State, 405

S.W.3d 944, 946-47 (Tex. App.-Texarkana 2013, no pet.)

      The Texas Rules of Appellate Procedure 43.2 provides many remedies for

the Court of Appeals. Tex. R. App. P. 43.2(b) provides that the Court of Appeals

may “modify the trial court’s judgment and affirm it modified. See also Bigley v.

                                          4
State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 993) and also Abron v. State, 997

S.W.2d 281 (Tex. App.-Dallas 1998). While Tex. R. App. 43.2(d) provides the

power to “reverse the trial court’s judgment and remand the case for further

proceedings.



                                      PRAYER

      Given that the trial court made no determination that Appellant had the

ability to pay for his appointed counsel fees, appellant prays that this cause be

reversed and remanded for new sentencing.

      In the alternative, if this Honorable Court elects not to reverse and remand,

Appellant requests the judgment be modified to remove the amount assessed for

attorney’s fees.



                                              Respectfully Submitted,

                                              /s/ Robert L. Cole, Jr.

                                              Robert L. Cole, Jr.
                                              SBOT: 04547800
                                              409 N. Fredonia, Suite 101
                                              Longview, TX 75601
                                              903-236-6288 Phone
                                              903-236-5441 Fax
                                              rcolejd@gmail.com

                                          5
                       CERTIFICATE OF COMPLIANCE

      I hereby certify that this computer generated document contains 901 words

as limited by Texas Rule of Appellate Procedure Rule 9.4.



                                             /s/ Robert L. Cole, Jr.
                                             ROBERT L. COLE, JR.
                                             Counsel for Appellant



                          CERTIFICATE OF SERVICE


      I hereby certify that on this the 6th day of July 2015, a copy of the foregoing

has been hand delivered to the Gregg County District Attorney’s Office, 101 E.

Methvin Street, Suite 333, Longview, TX 75601 with attention to Zan Colson

Brown, Attorney for Appellee.



                                             /s/ Robert L. Cole, Jr.
                                             ROBERT L. COLE, JR.
                                             Counsel for Appellant



                                         6
