                                                                                ACCEPTED
                                                                            12-15-00212-CR
                                                               TWELFTH COURT OF APPEALS
                                                                             TYLER, TEXAS
                                                                      10/12/2015 1:39:01 PM
                                                                                  Pam Estes
                                                                                     CLERK

                   No. 12-15-00212-CR

                                                          FILED IN
                                                   12th COURT OF APPEALS
        IN THE TWELFTH COURT OF              APPEALS TYLER, TEXAS
                  TYLER, TEXAS                     10/12/2015 1:39:01 PM
                                                          PAM ESTES
                                                            Clerk

                TONY LAMONT JONES

                              Appellant,

                             v.

                 THE STATE OF TEXAS

                                  Appellee


On Appeal from the 7th District Court of Smith County, Texas
               Trial Cause No. 007-0812-14




        ORAL ARGUMENT NOT REQUESTED


                         Austin Reeve Jackson
                         Texas Bar No. 24046139
                         112 East Line, Suite 310
                         Tyler, TX 75702
                         Telephone: (903) 595-6070
                         Facsimile: (866) 387-0152
                   IDENTITY OF PARTIES AND COUNSEL


Attorney for Appellant

Appellate Counsel:
Austin Reeve Jackson
112 East Line, Suite 310
Tyler, TX 75702

Trial Counsel:
O.W. Loyd
231 S. College Ave.
Tyler, TX 75702

Attorney for the State on Appeal

Michael J. West
Assistant District Attorney, Smith County
4th Floor, Courthouse
100 North Broadway
Tyler, TX 75702




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                                           TABLE OF CONTENTS


IDENTITY OF PARTIES AND COUNSEL ................................................................. ii
TABLE OF CONTENTS .............................................................................................. iii
INDEX OF AUTHORITIES ......................................................................................... iv
STATEMENT OF THE CASE .......................................................................................2
ISSUES PRESENTED ....................................................................................................2
STATEMENT OF FACTS ..............................................................................................2
SUMMARY OF THE ARGUMENT ..............................................................................3
ARGUMENT ..................................................................................................................4

    I.      THE TRIAL COURT ERRED IN ASSESSING ATTORNEY'S
            FEES AGAINST AN INDIGENT DEFENDANT ........................................4

    Applicable Law ..........................................................................................................4

    Relevant Facts ............................................................................................................5

    Conclusion ..................................................................................................................6

PRAYER FOR RELIEF ..................................................................................................7
CERTIFICATE OF SERVICE ........................................................................................7
CERTIFICATE OF COMPLIANCE ..............................................................................7




                                                              iii
                                    INDEX OF AUTHORITIES


TEXAS COURT OF CRIMINAL APPEALS:

Mayer v. State,
 309 S.W.3d 522 (Tex.Crim.App. 2010) ........................................................ 4


TEXAS COURTS OF APPEAL:

Barrera v. State,
 291 S.W.3d 515 (Tex.App.—Amarillo 2009) ............................................... 5

Williams v. State,
 332 S.W.3d 694 (Tex.App.—Amarillo 2011) ............................................... 4


STATUTES:

TEX. CODE CRIM. PROC. art. 26.04.................................................................... 4

TEX. CODE CRIM. PROC. art. 26.05.................................................................... 4




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                             No. 12-15-00212-CR


                   IN THE TWELFTH COURT OF APPEALS
                             TYLER, TEXAS


                          TONY LAMONT JONES

                                        Appellant,

                                       v.

                           THE STATE OF TEXAS

                                            Appellee


          On Appeal from the 7th District Court of Smith County, Texas
                         Trial Cause No. 007-0812-14




TO THE HONORABLE JUSTICES OF THE COURT:

      Comes Now, Austin Reeve Jackson, attorney for Tony Jones, and files this

brief pursuant to the TEXAS RULES OF APPELLATE PROCEDURE, and would show

the Court as follows:
                         STATEMENT OF THE CASE

      Tony Jones seeks to appeal his conviction and sentence for the felony

offense of theft. (I CR 67).    After being indicted for this offense in the Seventh

District Court of Smith County in 2014, Mr. Jones entered a plea of “guilty” and,

by agreement, was placed on four years’ deferred adjudication community

supervision.    (I CR 1, 41).    In July of this year the trial court revoked that

community supervision and sentenced Mr. Jones to serve a term of twenty-two

months’ confinement. (I CR 72). Sentence was pronounced on 23 July and notice

of appeal then timely filed. (I CR 72, 78).

                                ISSUES PRESENTED

      I.       THE TRIAL          COURT ERRED            IN ASSESSING
               ATTORNEY’S         FEES AGAINST           AN INDIGENT
               DEFENDANT.

                           STATEMENT OF FACTS

      After having been indicted for the felony offense of theft, Appellant, Mr.

Tony Jones, entered a plea of “guilty” before the Seventh District Court of Smith

County and, pursuant to a plea agreement, was placed on four years’ deferred

adjudication community supervision. (I CR 1, 41).

      Unfortunately, in July of this year Mr. Jones found himself facing an

application to revoke that community supervision. (I CR 48). Among other

things, the application alleged that Ms. Loven had violated the terms of her



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community supervision by failing to report, failing to maintain employment,

failure to complete a theft intervention class, and failure to perform community

service. (Id.). To all these allegations Mr. Jones entered pleas of “not true.” (VI

RR 8). However, during the hearing Mr. Jones testified and admitted the truth of

all of the allegations made against him. (VI RR 27-39). Based on the evidence

presented, the trial court found it to be true that Mr. Jones had violated the terms

and conditions of his community supervision and the court then revoked the

community supervision, adjudicated guilt, and sentenced Mr. Jones to serve a term

of twenty-two months’ confinement. (I CR 71). Sentence was pronounced on 23

July and notice of appeal then timely filed. (I CR 72, 78).

                           SUMMARY OF ARGUMENT

        In the absence of some evidence that a defendant who has previously been

determined to be indigent has the resources to pay all or part of his attorney’s fees,

a trial court errs in imposing the same as a cost of court. Because in the instant

case there was no such evidence, and because Mr. Jones had been determined to be

indigent, the Court should reform the judgment by removing the charged attorney’s

fees.

        Alternatively, where the record is not clear as to whether the attorney’s fees

assessed where included in full or part in the amount of court costs ordered, and, in

fact, where the record is silent as to how the amount of costs ordered was derived



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from the list of costs in the bill of costs, the Court should remand the case for new

findings on that issue or the creation of a new bill of costs.

                                    ARGUMENT

       I.    THE TRIAL            COURT ERRED               IN ASSESSING
             ATTORNEY’S           FEES AGAINST              AN INDIGENT
             DEFENDANT.

       Applicable Law

       Article 26.05 of the Texas Code of Criminal Procedure provides that the

costs of appointed counsel may be imposed against a defendant if the court finds

that the defendant “has financial resources that enable him to offset in part or in

whole the costs of the legal services provided.” TEX. CODE CRIM. PROC. art.

26.05(g).   However, where the record before the court fails to establish a

defendant’s financial ability to offset such costs, “a trial court errs if it orders the

reimbursement of court-appointed attorney’s fees.” Williams v. State, 332 S.W.3d

694, 699 (Tex.App.—Amarillo 2011, pet. denied) (citing Mayer v. State, 309

S.W.3d 522 (Tex.Crim.App. 2010). Further, once a defendant has been found to

be indigent, that finding continues unless evidence establishes a material change in

his financial status. Id. (citing TEX. CODE CRIM. PROC. art. 26.04(p); Mayer, 309

S.W.3d at 557). Where attorney’s fees have erroneously been imposed the proper

remedy is to reform the judgment by deleting the same. Mayer, 309 S.W.3d at

557.



                                           4	  
      Relevant Facts

      After being indicted for the underlying offense Mr. Jones was determined to

be indigent and granted court appointed counsel. (III RR 3-8). The same finding

was made when Mr. Jones returned to court on the revocation proceeding. (I CR

64). During that proceeding the defendant stated that he had a 401k account of

some sort. (VI RR 30-31). At no time though was the amount of money in that

account discussed, no testimony or evidence was developed as to whether any such

funds even remained, and there was no further testimony regarding any assets Mr.

Jones may own. (VI RR gen.). The trial court did indicate that it questioned

whether Mr. Jones, based on the statement regarding the 401k, would be entitled to

appointed counsel on appeal. (VI RR 48). A continued finding of indigence and

the appointment of appellate counsel, however, resolved that issue. (I CR 75).

      When imposing punishment the trial court ordered payment of costs of

court. (I CR 69). A Bill of Costs supporting those costs was prepared and reflects

that $300 of the court costs is for attorney fees. (I CR 73). However, the record

does not contain any information that would indicate that the original finding of

indigence had changed or that Mr. Jones had the ability to pay any or all of the

costs for his appointed counsel. (I CR gen.; VI RR gen.) Because no such

evidence exists the trial court erred in imposing attorney’s fees against Mr. Jones.

Barrera v. Sate, 291 S.W.3d 515, 518 (Tex.App.—Amarillo 2009, no pet.).



                                         5	  
      Alternatively, because the record is not clear as to how the amount ordered

as costs was calculated, it is prayed that the Court remand the case for clarification

as to the basis, if any, for the costs ordered. Specifically, The court costs ordered

paid in the court’s written judgment and withholding order was for an amount of

$289.00. (I CR 67, 69). Although this amount is less than the $300 ordered in

attorney’s fees, the record is unclear as to whether that $289 amount includes any

part of the attorney’s fees or how that amount was otherwise calculated. (Id.). In

order to ensure that the costs ordered do not include any legally impermissible

costs, and to ensure that Smith County will not wrongfully seek to collect

attorney’s fees against Mr. Jones in the future, the Court should remand the case

for further clarification or order the trial court to submit a new bill of costs

showing the source or sources that form the basis for the $289 ordered.	  

      Conclusion

      Given that the record establishes that Mr. Jones was indigent at the time of

trial, and because the record does not establish any support for the conclusion that

that status changed, the Court should reform the trial court’s judgment as to the

assessment of attorney’s fees by deleting the $300 in attorney’s fees ordered or,

alternatively, remand the case for supplemental findings or a supplemental bill of

costs detailing those fees on which the trial court relied in calculating the amount

ordered.



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                              PRAYER FOR RELIEF

      WHEREFORE, PREMISES CONSIDERED, it is respectfully prayed that

the Court reform the written judgment to omit attorney’s fees.

                                                   Respectfully submitted,

                                                   /s/ Austin Reeve Jackson
                                                   Texas Bar No. 24046139
                                                   112 East Line, Suite 310
                                                   Tyler, TX 75702
                                                   Telephone: (903) 595-6070
                                                   Facsimile: (866) 387-0152


                           CERTIFICATE OF SERVICE

      I certify that a true and correct copy of this brief was delivered to counsel for

the State by efile / facsimile concurrently with its filing in the Court.

                                                   /s/Austin Reeve Jackson


                       CERTIFICATE OF COMPLIANCE

      I certify that this document complies with the requirements of Rule 9.4 and

consists of 1,355 words.

                                                   /s/ Austin Reeve Jackson
                                                   	  




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