                                  NO. 12-15-00268-CR

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

NEIL WADE HUNTER,                                §      APPEAL FROM THE 7TH
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §      SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Appellant, Neil Wade Hunter, appeals his conviction for assault-family violence. In four
issues, Appellant maintains the trial court erred in assessing, as costs, an attorney’s fee for his
court appointed attorney, and in ordering the payment of restitution to entities not entitled to
receive it. We affirm.


                                         BACKGROUND
       Appellant pleaded guilty on May 12, 2015, to the offense of assault causing bodily injury
to a member of his family and household. Pursuant to a plea agreement, the State recommended
that Appellant be placed on deferred adjudication community supervision for two years and
required to pay “RESTITUTION in the amount of TBD.” The trial court accepted the State’s
recommendation. As a condition of his community supervision, Appellant was required to pay
$13,768.31 as restitution to ETMC-EMS and East Texas Medical Center. This represented the
balance due for the victim’s emergency care and hospitalization for treatment of her injuries
from Appellant’s assault. Appellant did not object to this condition when the trial court placed
him on community supervision.        Two months later, the State moved to proceed to final
adjudication. Appellant entered pleas of true to eleven alleged violations of his conditions of
community supervision.         The trial court found Appellant guilty and sentenced him to
imprisonment for five years.


                               COURT APPOINTED ATTORNEY’S FEE
       In his first issue, Appellant argues that the trial court erred in assessing attorney’s fees
against him in its order placing him on deferred adjudication community supervision.              He
maintains that he was determined to be indigent when the State initiated this prosecution, and he
has remained indigent throughout the proceedings against him. Therefore, Appellant contends
the trial court erred in ordering him to pay, as costs, a $300 fee for his court appointed attorney.
Applicable Law
       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 Supp.
2015). However, once a defendant is determined to be indigent, he is presumed to remain
indigent throughout the remainder of the proceedings unless a material change in his financial
circumstances occurs. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2015). Before
any subsequent imposition of attorney’s fees, the trial court must determine that the defendant
has financial resources which enable him to offset, in whole or in part, the cost of the legal
services provided, and that determination must be supported by a factual basis in the record.
Johnson v. State, 405 S.W.3d 350, 354 (Tex. App.—Tyler 2013, no pet.).
       If the record does not show that the defendant’s financial circumstances materially
changed after the previous determination that he was indigent, the evidence will be insufficient
to support the imposition of attorney’s fees. TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Mayer
v. State, 309 S.W.3d 552, 553 (Tex. Crim. App. 2010). An appellant’s complaint about the
sufficiency of the evidence of his financial resources and ability to pay is not waived by his
failure to raise the complaint in the trial court. Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim.
App. 2010).
Discussion
       Based on Appellant’s Pauper’s Oath Application, the trial court found Appellant was
unable to employ counsel and designated court appointed counsel to represent him. Appellant
asserts, and the State agrees, that Appellant was represented by court appointed counsel at every
stage of the prosecution.



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       In the May 13, 2015 order of deferred adjudication, the trial court assessed $589 as court
costs. A bill of costs was prepared approximately six months later and shows $614 in costs,
including $300 for Appellant’s court appointed attorney’s fee. In the Judgment Adjudicating
Guilt, the trial court assessed $289 as costs.       The Order to Withdraw Funds authorizes
withdrawal of $14,057.31–the sum of costs ($289) and restitution ($13,768.31).
       Appellant requests that the original deferred adjudication order be modified to assess
$289 in court costs. When an accused receives deferred adjudication, however, the judgment
adjudicating guilt sets aside the order deferring adjudication. Taylor v. State, 131 S.W.3d 497,
502 (Tex. Crim. App. 2004). Because the order deferring adjudication is no longer in effect, we
decline to modify it as Appellant requests.
       Attorney’s fees as set forth in a certified bill of costs are effective whether or not
incorporated by reference in the written judgment. Armstrong v. State, 340 S.W.3d 759, 767
(Tex. Crim. App. 2011). But there is no evidence that Appellant’s financial circumstances
materially changed after he was declared indigent. Therefore, the evidence is insufficient to
support the assessment of the attorney’s fee. The State concedes that the attorney’s fee should
not have been assessed and that the Bill of Costs should be modified to delete it. We agree.
Appellant’s first issue is sustained.


                                          RESTITUTION
       In his second and third issues, Appellant contends the trial court abused its discretion in
ordering restitution to ETMC-EMS and East Texas Medical Center, entities not entitled to
restitution. In his fourth issue, he argues the order for restitution is not supported by a factual
basis in the record.
Standard of Review and Applicable Law
       Challenges to restitution orders are reviewed under an abuse of discretion standard.
Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980); Drilling v. State, 134 S.W.3d
468, 469 (Tex. App.–Waco 2004, no pet.).
       “In addition to any fine authorized by law, the court that sentences a defendant convicted
of an offense may order the defendant to make restitution to any victim of the offense or to the
compensation to victims of crime fund . . . to the extent that fund has paid compensation to or on
behalf of the victim.” TEX. CODE CRIM. PROC. ANN. art. 42.037(a) (West Supp. 2015). The code



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of criminal procedure also provides that “[t]he judge may impose any reasonable condition [of
community supervision] that is designed to protect or restore the community, protect or restore
the victim, or punish, rehabilitate, or reform the defendant.” TEX. CODE CRIM. PROC. ANN. art.
42.12 § 11(a) (West Supp. 2015).
        Due process imposes three limitations on the restitution a trial court may order: (1) the
amount must be just and supported by a factual basis within the record, (2) the restitution ordered
must be only for the offense for which the defendant is criminally responsible, and (3) the
restitution ordered must be only for the victim or victims of the offense with which the offender
is charged. Drilling, 134 S.W.3d at 470; Cantrell v. State, 75 S.W.3d 503, 512 (Tex. App.–
Texarkana 2002, pet. ref’d).
        In Speth v. State, 6 S.W.3d 530 (Tex. Crim. App. 1999), the court held the extension of
probation to a defendant conditioned upon the defendant’s acceptance of probationary terms
creates a contractual relationship. Id. at 534. Conditions not objected to are affirmatively
accepted as terms of the contract. Id. A trial objection allows the trial court the opportunity to
consider the risk of abusing its discretion by imposing the condition over objection or reconsider
the desirability of the contract without the challenged condition. Id. at 534-35. Therefore, a
defendant who enters into the contractual relationship without objection “waives any rights
encroached upon by the terms of the contract.” Id. at 534.1
        The evidence at trial in Gutierrez-Rodriguez v. State proved only that the defendant
pawned, knowing they were stolen, a GPS device burglarized from one person’s pickup and an
iPod taken in a burglary of another person’s pickup. She was not charged in either burglary and
both items were returned to their owners in working order. Gutierrez-Rodriguez v. State, 405
S.W.3d 936, 943 (Tex. App.—Amarillo 2013), rev’d, 444 S.W.3d 21 (Tex. Crim. App. 2014).
        The trial court suspended the imposition of sentence and placed Gutierrez-Rodriguez on
community supervision for one year. One of the conditions of her community supervision
required that she pay the property owners, as restitution, the value of other items taken in the
burglaries for which she was neither charged nor convicted. On appeal, she contended that the
trial court abused its discretion by ordering restitution based upon offenses for which she had not
been found criminally responsible and for which there was no factual basis in the record. The


        1
           A defendant may challenge an unobjected-to condition of community supervision if he did not know
about the condition in time to object or had no opportunity to object. Speth, 6 S.W.3d at 534 n.9.


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Amarillo court of appeals agreed and modified the judgment in each case to delete the restitution
requirement. Id.
       The State filed a petition for discretionary review, arguing that Appellant had forfeited
her claim by failing to object at trial. Gutierrez-Rodriguez v. State, 444 S.W.3d 21, 23 (Tex.
Crim. App. 2014). The court of criminal appeals reiterated its Speth analysis that the extension
of probation to the defendant creates a contractual relationship. “Conditions of probation that are
not objected to are affirmatively accepted as terms of the contract, unless the condition is one
that the criminal justice system finds to be intolerable and is therefore not a contractual option
available to the parties.” Id. (quoting Gutierrez v. State, 380 S.W.3d 167, 175-76 (Tex. Crim.
App. 2012); Speth, 6 S.W.2d at 534). The court held that Gutierrez-Rodriguez “bound herself to
the terms of the probation contract by accepting the benefits of the contract without objection.”
Id. at 24. Therefore, she forfeited her claim regarding the restitution requirement. Id.
Discussion
       There is no question that the medical expenses for emergency transport and three days of
hospitalization were incurred by the victim as a direct result of Appellant’s assault. The record
shows that Appellant knew and understood the terms of the plea agreement including “payment
of RESTITUTION in the amount of TBD.”                The amount of restitution was determined at
sentencing. Both Appellant’s counsel and the trial court observed at that time that three scans
accounted for most of the medical expenses. Appellant raised no objection to the amount of
restitution or the terms of payment. Appellant did not object to the payment of restitution to
ETMC-EMS or East Texas Medical Center for the amount of the victim’s outstanding balances.
       Appellant accepted the terms of the plea agreement.           The trial court deferred an
adjudication of guilt and placed Appellant on community supervision in conformity with that
agreement. “A defendant who benefits from the contractual privilege of probation, the granting
of which does not involve a systemic right or prohibition, must complain at trial to conditions he
finds objectionable. Speth, 6 S.W.3d at 534.
       A term of community supervision requiring payment to a hospital for a victim’s unpaid
medical expenses caused by a defendant’s offense does not encroach upon a systemic right or
prohibition.   It is not a condition the criminal justice system would find intolerable.       See
Gutierrez, 444 S.W.3d at 23.        Appellant bound himself to the terms of the community




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supervision contract by accepting the benefits of the contract without objection and forfeited his
complaint regarding restitution. Appellant’s second, third, and fourth issues are overruled.


                                                   DISPOSITION
         Having sustained Appellant’s first issue, we modify the bill of costs to delete the $300 fee
for Appellant’s court appointed attorney. We affirm the judgment of the trial court.


                                                                                BILL BASS
                                                                                 Justice

Opinion delivered April 20, 2016.
Panel consisted of Hoyle, J., Neeley, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.




                                              (DO NOT PUBLISH)




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                                  COURT OF APPEALS

     TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                            APRIL 20, 2016


                                         NO. 12-15-00268-CR


                                     NEIL WADE HUNTER,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                 Appeal from the 7th District Court
                        of Smith County, Texas (Tr.Ct.No. 007-0089-15)

                      THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the Bill of Costs
should be modified and that the trial court’s judgment below should be affirmed.
                      It is therefore ORDERED, ADJUDGED and DECREED that the Bill of
Costs be, and hereby is, modified to delete the $300 cost imposed as a fee for Appellant’s court
appointed attorney and to show total costs, as modified, of $314 rather than $614; that the trial
court’s judgment is affirmed; and that this decision be certified to the trial court below for
observance.
                   Bill Bass, Justice.
                   Panel consisted of Hoyle, J., Neeley, J. and Bass, Retired J., Twelfth Court of Appeals,
                   sitting by assignment.



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