                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-12-00199-CR



       DARIAN BLAINE MORSMAN, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 6th District Court
                Lamar County, Texas
                Trial Court No. 24762




       Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                      MEMORANDUM OPINION
           In a bench trial before the Honorable Scott McDowell, Darian Blaine Morsman was

convicted, as a habitual offender, for burglary of a habitation. 1 In a prior conviction used as an

enhancement in this case, Morsman had been represented by McDowell before becoming a

judge. On appeal, Morsman argues that McDowell “was disqualified from presiding over the

case because he had previously served as counsel for Appellant” in the case used for

enhancement. McDowell was not disqualified from so serving. Morsman correctly complains

that assessing attorney’s fees against him was in error, because he is indigent and there was no

proof of his ability to pay the fees. The State concedes error on this point. Accordingly, we

delete the attorney’s fees from the court costs portion of the judgment and affirm the judgment as

modified.

(1)        Judge McDowell Was Not Disqualified from Presiding over Morsman’s Trial

           The State’s enhancement paragraph alleged that Morsman was “finally convicted of the

felony offense of Intoxicated Manslaughter with Vehicle, in the 6th District Court of Lamar

County, Texas, in Cause Number 15600, on May 20, 1997.”              Morsman pled true to this

enhancement allegation. The 1997 judgment, which was offered during the sentencing phase

without objection, lists McDowell as counsel for Morsman. Morsman now argues that the trial

judge should have been disqualified.




1
    Morsman was sentenced to forty years’ imprisonment.


                                                          2
        Article 5, Section 11 of the Texas Constitution2 reads:

        No judge shall sit in any case wherein the judge may be interested, or where either
        of the parties may be connected with the judge, either by affinity or
        consanguinity, within such a degree as may be prescribed by law, or when the
        judge shall have been counsel in the case.

TEX. CONST. art. V, § 11. Section 30.01 of the Texas Code of Criminal Procedure specifies:

        No judge or justice of the peace shall sit in any case where he may be the party
        injured, or where he has been of counsel for the State or the accused, or where the
        accused or the party injured may be connected with him by consanguinity or
        affinity within the third degree, as determined under Chapter 573, Government
        Code.

TEX. CODE CRIM. PROC. ANN. art. 30.01 (West 2006).

        There is no contention in the brief that the trial judge was interested in the outcome or

related to the parties in this case. The judge was also not counsel in this case within the meaning

of the prohibition. Hathorne v. State, 459 S.W.2d 826, 829 (Tex. Crim. App. 1970) (“It has been

held, however, that to come within the meaning of ‘counsel in the case’ in the statute prescribing

qualifications of judges, it must appear that the judge acted as counsel [i]n the very case before

him”); see Madden v. State, 911 S.W.2d 236, 240 (Tex. App.—Waco 1995, pet. ref’d) (citing

Gamez v. State, 737 S.W.2d 315, 318 (Tex. Crim. App. 1987)). Instead, Morsman’s complaint

relates to “inherent dangers” that could arise because “[a] trial judge cannot ‘unknow’ what he




2
 The Texas Court of Criminal Appeals has held that disqualification under Article V, Section 11 of the constitution
may be raised at any time. Johnson v. State, 869 S.W.2d 347, 348–49 (Tex. Crim. App. 1994). Although the Court
has questioned whether a preservation requirement should be imposed, it has not yet overruled the “line of cases
holding that a judge’s disqualification may be raised for the first time on appeal.” Lackey v. State, 364 S.W.3d 837,
842–43 n.19 (Tex. Crim. App. 2012).
                                                         3
had learned through a prior representation,” in this case, the extent, effect, and consequences of

Morsman’s substance abuse. 3

            “A judge is not disqualified simply because he has prosecuted or defended the accused in

past cases.” Kuykendall v. State, 335 S.W.3d 429, 432 (Tex. App.—Beaumont 2011, pet. ref’d).

In support of this determination, our sister court relied on Hathorne, in which the Texas Court of

Criminal Appeals wrote:

          If the State or defense offers prior convictions as part of that “record” where the
          trial judge served as prosecutor or defense counsel, does this result in an automatic
          disqualification of the judge and cause a mistrial? Certainly not, even though
          evidence of such conviction may, in the discretion of the judge or jury, result in an
          increased or enhanced penalty.

Hathorne, 459 S.W.2d at 830. Morsman argues that this language in Hathorne was dicta

because “there were no facts or arguments before the court concerning a trial judge’s prior

representation of the defendant.” Instead, the trial judge in Hathorne was the district attorney in

the prior conviction used to enhance the defendant’s punishment. Id. at 828.

            Yet, the conclusion in Hathorne was penned as follows:

            We hold that the mere inclusion in the indictment or information of allegations as
            to prior convictions (for the enhancement of punishment only) does not disqualify
            the trial judge because he was of counsel in such prior conviction or convictions
            for either the State or the defense, not being within the purview of the statutory or
            constitutional prohibition of being “counsel in the case.”

                      ....

            To hold otherwise would mean that a judge is not disqualified in a case by the fact
            he previously prosecuted or defended an accused in another case, or that such
            prior conviction was used for impeachment purposes or utilized as a part of the
            accused’s “prior criminal record” but the mere allegation of such conviction for

3
    Recusal is not an issue in this case.
                                                     4
        the purpose of enhancement only would work an automatic disqualification. Such
        would be an illogical result, particularly considering the nature and purpose of the
        allegation of the prior conviction, it not being a part of the substantive offense,
        and taking into account our present bifurcated trial system. To permit the
        disqualification to be too easy could cause the cost and the delay of the
        administration of criminal justice to go out of bounds.

Id. at 833.

        In rejecting the idea that this concluding language in Hathorne was dicta, our sister court

in Kuykendall wrote:

        An intermediate court is not free to disregard the holding of a higher court, and
        we decline to characterize as obiter dictum what the high court has described as
        its holding. Even if the statement is considered dicta, it appears to be judicial
        dicta made deliberately, and not some passing thought tangential to the reasoning
        of the opinion.

Kuykendall, 335 S.W.3d at 433. Moreover, another sister court has resolved the very issue raised

by Morsman by applying Hathorne. See Nevarez v. State, 832 S.W.2d 82, 88 (Tex. App.—Waco

1992, pet. ref’d) (trial judge not disqualified simply because he served as defense counsel in

prior case used to enhance punishment).

        Here, the trial judge was not statutorily or constitutionally disqualified. His service as

Morsman’s counsel in a 1997 conviction used for purposes of enhancement did not come within

the meaning of “counsel in the case” as used in the Texas Constitution, Article 30.01of the Texas

Code of Criminal Procedure, and Texas courts. We overrule this point of error.

(2)     Morsman’s Ability to Pay Was Not Proven

        The judgment requires that Morsman pay $1,916.50 in court costs. The bill of costs

includes an attorney’s fee of $350.00.       Morsman argues that the record fails to establish


                                                 5
Morsman’s ability to pay this fee and that it should be redacted from the assessed court costs.

We agree.

       Counsel was appointed to represent Morsman after the trial court found him to be

indigent.   “Fees for court-appointed representation are often included in a bill of costs.”

Armstrong v. State, 340 S.W.3d 759, 765 (Tex. Crim. App. 2011). A trial court has the authority

to order the reimbursement of court-appointed attorney’s fees under certain circumstances.

       If the court determined 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.

TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2012). “[T]he defendant’s financial

resources and ability to pay are explicit critical elements in the trial court’s determination of the

propriety of ordering reimbursement of costs and fees.” Armstrong, 340 S.W.3d at 765–66

(quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)).               Here, the State

concedes that the record before us does not contain any determination or finding by the trial

court that Morsman had any financial resources or was “able to pay” the appointed attorney’s

fees. Thus, the assessment of the $350.00 in attorney’s fees was erroneous and should be

deleted. See Rodriguez v. State, No. 06-12-00167-CR, 2013 WL 375408, at *1 (Tex. App.—

Texarkana Jan. 31, 2013, no pet.) (mem. op., not designated for publication); Proctor v. State,

No. 12-11-00335-CR, 2012 WL 3804371, at *2 (Tex. App.—Tyler Aug. 31, 2012, pet. ref’d)




                                                 6
(mem. op., not designated for publication) (remove attorney’s fees from costs imposed absent

record indicating defendant able to pay). 4 This point of error is sustained.

        We modify the judgment to delete $350.00 in attorney’s fees from the assessment of

court costs. As modified, the judgment is affirmed.



                                                   Josh R. Morriss, III
                                                   Chief Justice

Date Submitted:          May 20, 2013
Date Decided:            May 21, 2013

Do Not Publish




4
 Although this unpublished case has no precedential value, we may take guidance from it “as an aid in developing
reasoning that may be employed.” Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d).
                                                       7
