Opinion issued December 6, 2012




                                     In The
                             Court of Appeals
                                    For The
                         First District of Texas
                          ————————————
                            NO. 01-12-00076-CR
                          ———————————
                         FREDDIE LEWIS, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 19th District Court
                         McLennan County, Texas
                    Trial Court Case No. 2008–1089–C1


                         MEMORANDUM OPINION

      The jury found appellant Freddie Lewis guilty of aggravated robbery with a

deadly weapon.1     After appellant pleaded true to two felony enhancement

allegations, the jury assessed appellant’s punishment at 55 years in prison and a

$500 fine.


1
      See TEX. PENAL CODE ANN. § 29.03(a)(2) (Vernon 2011).
      Appellant presents two issues on appeal.2 Appellant contends that the trial

court erred by requiring him to pay the fees for the counsel, investigator, and

interpreter appointed by the trial court. Appellant also asserts that the trial court

erred in allowing the district attorney to prosecute the case because he had been

appointed to represent appellant earlier in the proceedings.

      We affirm the judgment, as modified.

                              Background Summary

      Appellant was indicted for the first-degree felony offense of aggravated

robbery with a deadly weapon. The State filed its notice of intent to seek enhanced

punishment based on appellant’s two prior felony convictions.

      Throughout the proceedings, the trial court determined appellant to be

indigent and appointed counsel to represent him. In June 2009, and again in

November 2009, the trial court determined appellant was incompetent to stand

trial. Appellant was committed to a mental health facility for treatment. In June

2011, the trial court found that appellant had been “returned to competency” and

could stand trial.

      The case was tried to a jury in December 2011. The jury found appellant

guilty of aggravated robbery with a deadly weapon. Appellant pleaded true to two


2
      This appeal, originally filed in the Tenth Court of Appeals, Waco, Texas, was
      transferred to the First Court of Appeals, Houston, Texas. See TEX. GOV’T CODE
      ANN. § 73.001 (Vernon 2005).
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felony enhancement allegations. The jury assessed his punishment at 55 years in

prison and a $500 fine. The trial court order appellant to pay court costs totaling

$3,300. Appellant now appeals the judgment, raising two issues.

                                    Court Costs

      In his first issue, appellant contends that “[t]he trial court erred in requiring

[appellant] to pay costs for court appointed counsel, investigator, and interpreter

fees” because the court had determined appellant to be indigent. The judgment of

conviction orders appellant to pay court costs totaling $3,030. The bill of costs

reflects that this figure includes $1,575.00 for court appointed attorney’s fees, $400

for a court appointed interpreter, and $750 for a court appointed investigator.

      A trial court has authority to order the defendant to repay fees for legal

services provided, that is, court-appointed counsel and investigative costs, if the

court determines that a defendant has financial resources enabling him to offset, in

part or in whole, the costs of the legal services provided. See TEX. CODE CRIM.

PROC. ANN. art. 26.05(g) (Vernon Supp. 2011); Mayer v. State, 309 S.W.3d 552,

556 (Tex. Crim. App. 2010); see also Perez v. State, No. 07–10–0147–CR, 2011

WL 3112061, at *6 (Tex. App.—Amarillo July 26, 2011, pet. dismissed) (mem.

op.) (not designated for publication) (including investigative costs as costs of legal

services).   Nonetheless, “[a] defendant who is determined by the court to be

indigent is presumed to remain indigent for the remainder of the proceedings in the

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case unless a material change in the defendant’s financial circumstances occurs.”

TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (Vernon Supp. 2011).                  “[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.” Mayer, 309 S.W.3d at 556. Thus, the record must supply a factual basis

to support the determination that the defendant is capable of repaying the

attorney’s fees and investigative costs ordered to be paid. See id.

      Here, the record does not show that the trial court reconsidered its

determination of indigency, the occurrence of a material change in appellant’s

financial circumstances, or his ability to offset the cost of legal services provided.

See TEX. CODE CRIM. PROC. ANN. arts. 26.04(p), 26.05(g). To the contrary, after

sentence was imposed, the trial court appointed appellate counsel based on

appellant’s indigence. We agree with appellant, and the State concedes, there is no

evidence to support the trial court’s order for appellant to repay the attorney’s fees

and investigative fees expended on his behalf in the underlying case.

      The State also concedes that appellant should not be required to pay for the

cost of the interpreter appointed by the trial court. Code of Criminal Procedure

article 38.30 provides that an accused is entitled to the appointment of an

interpreter if he or a witness does not understand the English language. See TEX.

CODE CRIM. PROC. ANN. art. 38.30 (Vernon Supp. 2012). The statute also provides

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that the interpreter is entitled to be compensated for his or her services. See id.

Nothing in article 38.30, however, authorizes a trial court to assess the cost of that

interpreter against the defendant. See id. Moreover, neither the provisions of

Chapter 102 of the Code of Criminal Procedure (entitled “Costs Paid by

Defendants”) nor section 103.021 of the Texas Government Code (entitled

“Additional Fees and Costs in Criminal or Civil Cases”) authorize the assessment

of interpreter’s fees. See TEX. CODE CRIM. PROC. ANN. arts. 102.001–.072 (Vernon

2006 & Supp. 2012); TEX. GOV’T CODE ANN. § 103.021 (Vernon Supp. 2012).

Finding no statutory authority for the assessment, we conclude that the sum of

$400.00 in court-appointed interpreter’s fees should not have been assessed as

costs of court. See Perez v. State, 2011 WL 3112061, at *6.

      Appellant does not challenge the other administrative fees, equaling $305,

comprising the remainder of the $3,030 total court costs assessed against him in

the judgment. Thus, the proper remedy is for this Court to subtract the sum of the

fees for the court-appointed attorney, investigator, and interpreter, equaling $2,725,

from the total court costs of $3,030 assessed in the judgment and modify the

judgment to reflect court costs of $305.00. See Mayer, 309 S.W.3d at 557; Cain v.

State, No. 10–11–00045–CR, 2011 WL 4837723, at *5 (Tex. App.—Waco Oct.12,

2011, no pet.) (mem. op., not designated for publication) (modifying judgment to

delete the finding ordering appellant to pay his court-appointed attorney’s and

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investigator’s fees); see also Bell v. State, No. 09–11–00462–CR, 2012 WL

252499, at *1 (Tex. App.—Beaumont Jan. 25, 2012, no pet.) (mem. op., not

designated for publication) (modifying indigent defendant’s judgment to subtract

attorney’s fees but retain administrative costs and fees); Ludlow v. State, No. 03–

11–00212–CR, 2012 WL 104469, at *1 (Tex. App.—Austin Jan. 11, 2012, no pet.)

(mem. op., not designated for publication) (same).

       We sustain appellant’s first issue.

                                 Conflict of Interest

       In his second issue, appellant contends, “The trial court erred in allowing

McLennan County Criminal district Attorney, Abel Reyna, to prosecute this matter

because Abel Reyna had been appointed to represent [appellant] in this case.” The

State responds that appellant has forfeited this complaint because he did not raise it

in the trial court.

       The record shows that Abel Reyna was appointed by the trial court to

represent appellant on April 7, 2009. A docket notation made on April 13, 2009,

indicates that Reyna had a conflict and that a new attorney needed to be appointed.

Also on April 13, 2009, the trial court signed an order appointing Walter Reaves,

Jr. to represent appellant. Reaves represented appellant from that date until after

trial. In his brief, appellant points out that, on January 1, 2011, “Abel Reyna began




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serving as the elected Criminal District Attorney of McClennan County and was

serving as such when the case was tried.”

      On appeal, appellant cites article 2.01 of the Code of Criminal Procedure,

which provides that the elected district attorney “shall represent the State in all

criminal cases in the district courts of his district and in appeals therefrom, except

in cases where he has been, before his election, employed adversely.” See TEX.

CODE CRIM. PROC. ANN. art. 2.01 (Vernon 2005). Appellant also points out that

the Court of Criminal Appeals has explained that a prosecuting attorney is

statutorily disqualified when he has formerly represented the defendant in the same

criminal matter as that currently being prosecuted. Landers v. State, 256 S.W.3d

295, 304 (Tex. Crim. App. 2008). Such conduct presents an actual conflict of

interest and constitutes a due-process violation, even without a specific showing of

prejudice. Id.

      On appeal, appellant frames his issue to assert that the trial court erred in

permitting the district attorney to prosecute him in the trial court. Appellant does

not, however, address the fact that no complaint was raised in the trial court

regarding the district attorney’s conflict of interest. The trial court had no duty or

authority to remove the district attorney without a request to do so.         See id.

(indicating trial court can disqualify district attorney in a case on a showing by

defendant of due-process violation); see also Coleman v. State, 246 S.W.3d 76, 81

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(Tex. Crim. App. 2008) (“The responsibility for making the decision to recuse

himself is on the district attorney himself; the trial court cannot require his

recusal.”).

      To preserve a complaint for appellate review, a party must present a timely

request, objection, or motion to the trial court stating the specific grounds for the

desired ruling if the specific grounds were not apparent from the context. See TEX.

R. APP. P. 33.1(a). All the party must do to avoid the forfeiture of a complaint on

appeal is “let the trial court know what he wants, why he thinks himself entitled to

it, and to do so clearly enough for the trial court to understand him at a time when

the trial court is in a proper position to do something about it.” Keeter v. State, 175

S.W.3d 756, 760 (Tex. Crim. App. 2005) (citing Lankston v. State, 827 S.W.2d

907, 909 (Tex. Crim. App. 1992)).

      It is well established that almost every right, constitutional and statutory,

may be forfeited by failing to object. Fuller v. State, 253 S.W.3d 220, 232 (Tex.

Crim. App. 2008); Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986).

Numerous constitutional rights, including those that implicate a defendant’s due-

process rights, may be forfeited for purposes of appellate review unless properly

preserved. See Anderson v. State, 301 S.W.3d 276, 279–80 (Tex. Crim. App.

2009) (rejecting “due process” exception to error preservation requirement);

Alexander v. State, 137 S.W.3d 127, 130–31 (Tex. App.—Houston [1st Dist.]

                                          8
2004, pet. ref’d) (holding failure to object to trial court regarding violations of

federal and state due process rights forfeited appellate review of those claims).

      The United States Supreme Court has explained, “The most basic rights of

criminal defendants are similarly subject to waiver.” Peretz v. United States, 501

U.S. 923, 936, 111 S. Ct. 2661, 2669 (1991). As examples, the Court cited a

number of cases, including the following: United States v. Gagnon, 470 U.S. 522,

528–29, 105 S. Ct. 1482, 1485–86 (1985) (holding absence of objection constitutes

waiver of right to be present at all stages of criminal trial); Levine v. United States,

362 U.S. 610, 619, 80 S. Ct. 1038, 1044 (1960) (ruling that failure to object to

closing of courtroom is waiver of right to public trial); Segurola v. United States,

275 U.S. 106, 111, 48 S. Ct. 77, 79 (1927) (concluding failure to object constitutes

waiver of Fourth Amendment right against unlawful search and seizure); United

States v. Figueroa, 818 F.2d 1020, 1025 (1st Cir. 1987) (holding failure to object

results in forfeiture of claim of unlawful post-arrest delay); United States v.

Coleman, 707 F.2d 374, 376 (9th Cir. 1983) (failure to object constitutes waiver of

Fifth Amendment claim).

      We have previously determined the issue of error preservation in an

analogous case. In Worthington v. State, the appellant complained on appeal that

he was deprived of due process of law because one of the prosecutors for the State

had previously served as the court-appointed attorney for his co-defendant. 714

                                           9
S.W.2d 461, 465 (Tex. App.—Houston [1st Dist.] 1986, pet. ref’d) overruled on

other grounds by Reed v. State, 744 S.W.2d 112 (Tex. Crim. App. 1988). We held

that the appellant had not preserved his due process complaint because he had

failed to obtain a ruling on his motion to recuse the prosecutor in the trial court.

Id.; see Jones v. State, No. 03–97–00592–CR, 1999 WL 236067, *1 (Tex. App.—

Austin Apr. 15, 1999, pet. ref’d) (not designated for publication) (holding appellant

waived conflict of interest complaint that prosecutor had represented him earlier in

same matter because appellant failed to raise complaint in the trial court).

      We hold that, because he did not present the issue in the trial court, appellant

has not preserved his complaint that the trial court erred in permitting the district

attorney to prosecute him in the trial court.        See TEX. R. APP. P. 33.1(a).

Accordingly, we overrule appellant’s second issue.

                                     Conclusion

      We affirm the judgment of the trial court, as modified.




                                              Laura Carter Higley
                                              Justice

Panel consists of Justices Jennings, Higley, and Sharp.

Do not publish. TEX. R. APP. P. 47.2(b).




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