                                                                             ACCEPTED
                                                                        06-14-00209-CR
                                                              SIXTH COURT OF APPEALS
                                                                   TEXARKANA, TEXAS
                                                                   1/22/2015 4:41:24 PM
                                                                        DEBBIE AUTREY
                                                                                 CLERK

                         Nos. 06-14-00209-CR

                                                        FILED IN
                                                 6th COURT OF APPEALS
                                                   TEXARKANA, TEXAS
                                                 1/26/2015 1:46:00 PM
                             In the                  DEBBIE AUTREY
                                                         Clerk
                     Sixth Court of Appeals
                      at Texarkana, Texas
                   _______________________

                    Kelvin Shamar Moore, Jr.,
                           Appellant,

                                 v.

                       The State of Texas,
                            Appellee.
                  _______________________________
                       On Appeal from the
               th
              6 District Court of Red River County
                   Hon. Eric Clifford, Presiding
              _______________________________
                      APPELLANT’S BRIEF




Don Biard
State Bar No. 24047755
Counsel for Appellant




                ORAL ARGUMENT NOT REQUESTED
                         IDENTITY OF PARTIES AND COUNSEL

Defendant Below
Appellant in this Court

Kelvin Shamar Moore

Counsel for Appellant:
     Don Biard                       (on appeal)
     State Bar No. 24047755
     38 First Northwest
     Paris, Texas 75460
     Tel: (903)785-1606
     Fax: (903)785-7580
     Email: dbiard@att.net

      Dan Meehan                     (at trial)
      State Bar No. 13898700
      202 West Madison
      Clarksville, Texas 75426
      Tel: (903)427-4547
      Fax: (903)427-4549

Appellee in this Court

The State of Texas

Counsel for Appellee:
     Hon. Val Varley
     State Bar No. 20496580
     Red River County Attorney’s Office
     400 North Walnut
     Clarksville, Texas 75426
     Tel: (903)427-2009
     Fax: (903)427-5316
                                                           1
                                         TABLE OF CONTENTS

Identity of Parties and Counsel……………………………..........…………………1

Table of Contents……………………………………..........……………………….2

Index of Authorities………………………………………......………………….....3

Summary of the Argument........................................................................................4

Statement of the Case…………………………………….………………………...5

Issues Presented……………………………………..............…………..….………5

Procedural History…………………………………….…………..……………......6

Facts……………………………………………………………….……………......7

Argument and Authorities……………………………………...………….........8-12

Prayer…………………………………………………………………………..….13

Certificate of Service……………………………………......…………………….14

Certificate of Compliance With Rule 9.4(i)(3)........................................................15




                                                                                                               2
                                         INDEX OF AUTHORITIES

                                                    Caselaw

Burt v. State, 396 S.W.3d 574, 578 (Tex. Crim. App. 2013)....................................9

Cobb v. State, 95 S.W.3d 664, 666 (Tex. App.—Houston [1st Dist.] 2002).............9

Issa v. State, 826 S.W.2d 159 (Tex. Crim. App. 1992)..........................................8,9

Mayer v. State, 309, S.W.3d 552 (Tex. Crim. App. 2010)........................................12

Rickels v. State, 108 S.W.3d 900, 902 (Tex. Crim. App. 2002)................................9

Rodriguez v. State, 2013 Tex. App. LEXIS 847 (Tex. App. Texarkana, 2013)......12


                                            Rules of Procedure

Tex. R. App. Pro. 21.4...............................................................................................9

Tex. Code Crim. Pro. 26.04.....................................................................................11

Tex Code Crim. Pro. 26.05......................................................................................11




                                                                                                                    3
                           SUMMARY OF THE ARGUMENT

      The trial was required to conduct a sentencing hearing after adjudicating

Appellant guilty but before rendering a sentence. The trial court failed to do so

and Appellant had no opportunity to object. Further, Appellant was without the

assistance of counsel who could have filed a motion for new trial within the time

allowed by the rules of appellate procedure.

      Additionally, Appellant was ordered to pay the costs of his court appointed

counsel. Appellant was found to be indigent both before and after his revocation

hearing and no contrary finding has been entered. Therefore, it was error for the

trial court to order Appellant to pay the costs of his court appointed counsel.




                                                                                    4
                           STATEMENT OF THE CASE

Nature of the Case:            Motion to Adjudicate Guilt on one charge of
                               Possession of a Controlled Substance.

Trial Court:                   The Honorable Eric Clifford
                               6th District Court, Red River County, Texas

Trial Court Disposition:       The trial court revoked Appellant’s community
                               supervision, adjudicated Appellant guilty on the
                               charge, and sentenced Appellant to 12 years’
                               imprisonment.


                              ISSUES PRESENTED

I. Whether the trial court erred in failing to conduct a sentencing hearing
after adjudicating Appellant’s guilt?

II. Whether the trial court erred in assessing attorney’s fees against
Appellant?




                                                                                  5
                                                            1
                                 PROCEDURAL HISTORY


On April 14, 2014, Appellant, Kelvin Shamar Moore, Jr., was placed on deferred

adjudication community supervision for one charge of Possession of a Controlled

Substance.2 On July 21, 2014, the state filed a motion to adjudicate guilt.3 Moore

was appointed trial counsel on September 24, 2014.4 A hearing was held on the

motion on October 30, 2014.5 The trial court revoked Moore’s community

supervision, adjudicated him guilty, and sentenced Moore to 12 years’

imprisonment.6 Moore timely filed notice of appeal.7




1
  All references to the record on appeal are made in the following manner: CR pg.# and RR,
pg.#. CR designates the Clerk’s Record and RR designates the Reporter’s Record, followed by
the particular page in that record. RR Ex.# designates a particular exhibit in the Reporter’s
Record.
2
  CR, pg. 44
3
  CR, pg. 52
4
  CR, pg. 61
5
  RR, pg. 1
6
  CR, pg. 64
7
  CR, pg. 70
                                                                                                6
                             FACTUAL BACKGROUND

       The State’s motion to revoke community supervision included several

alleged violations of Moore’s conditions of community supervision. Among these

were failure to pay required fees and commission of two separate criminal

offenses.8 Moore plead true to the allegations.9

       After hearing some brief testimony from two state’s witnesses and Moore

himself, the trial court revoked Moore’s community supervision and adjudicated

Moore guilty of the underlying offense. Immediately after, without requesting or

hearing any additional evidence, the trial court immediately sentenced Moore to 12

years’ imprisonment.10




8
  CR, pgs. 53-54
9
  RR, pg. 6-7
10
   RR, pg. 33-34
                                                                                   7
                        ARGUMENT AND AUTHORITIES


Issue No. 1 Restated: The trial court erred in failing to conduct a sentencing
hearing before sentencing Appellant.

a. Appellant asks this court to reconsider its earlier opinion in a similar case.

       Appellant acknowledges that this court has recently rejected a similar

argument to the one presented here.11 However, Appellant respectfully requests

this court reconsider its decision in that case.

a. Appellant was denied a sentencing hearing.

       “When a trial court finds that an accused has committed a violation as

alleged by the State and adjudicates a previously deferred finding of guilt, the court

must then conduct a second phase to determine punishment.”12

       In Issa v. State, the defendant was adjudicated guilty of theft and then

immediately sentenced to a period of 10 years’ imprisonment. Issa did not object

to the lack of a sentencing hearing at the hearing.13 Issa later filed a motion for

new trial raising the objection for the first time.




11
   See Kinslow v. State, Case No. 06-14-00083-CR, Sixth Court of Appeals – Texarkana (2014)
12
   Issa v. State, 826 S.W.2d 159 (Tex. Crim. App. 1992)
13
   Issa at 160
                                                                                              8
       The motion for new trial was denied and the case was appealed. The Waco

Court of Appeals held that because Issa did not object at the hearing, he had failed

to preserve any issue for review.14

       On discretionary review, the Court of Criminal Appeals disagreed. It held

that because the trial court had immediately sentenced Issa after adjudicating his

guilt, Issa had been afforded no opportunity to object at the hearing.15 The court

held that Issa was entitled to a sentencing hearing and that raising the objection for

the first time in his motion for new trial preserved the error for appellate review. 16

       The record in our case clearly reflects that the trial court immediately

sentenced Moore after adjudicating his guilt without taking evidence on

punishment.17 Although there was no objection at the hearing, as in Issa, Moore

had no opportunity to do so.

b. Preservation of Error

       Unlike in Issa, there was no motion for new trial filed in this case.

However, when an Appellant does not have the opportunity to object he generally

does not forfeit his right to complain on appeal.18 Moore did not have an



14
   Id.
15
   Id. at 161
16
   Id.
17
   RR, pgs, 33-34
18
   Burt v. State, 396 S.W.3d 574, 578 (Tex. Crim. App. 2013); citing Rickels v. State, 108
S.W.3d 900, 902 (Tex. Crim. App. 2002); and Cobb v. State, 95 S.W.3d 664, 666 (Tex. App.—
Houston [1st Dist.] 2002).
                                                                                             9
opportunity to object during the hearing. Further, Moore effectively had no

opportunity to object via a motion for new trial.

          A motion for new trial in a criminal case must be filed within 30 days after

the court imposes a sentence.19 Moore was sentenced on October 30, 2014.

Therefore, the deadline for filing a motion for new trial would have expired on

November 30, 2014.

          Moore’s trial counsel was relieved and Moore was appointed appellate

counsel on November 25, 2014.20 The reporter’s record was filed in this court on

December 8, 2014 and the clerk’s record on December 23, 2014. Therefore,

during the timeframe the Moore could have filed a motion for new trial — October

30, 2014 to November 30, 2014 — Moore was without the assistance of counsel

who could have known of the relevant facts necessitating such a motion.

Accordingly, Moore effectively had no opportunity to object to the trial court’s

error either at the hearing or via a motion for new trial.




19
     Tex. R. App. Pro. 21.4
20
     CR, pg. 74
                                                                                         10
Issue No. 2 Restated: The trial court erred in assessing $1,931.25 in attorney’s
fees against Appellant because there was no determination made that
Appellant had the financial ability to pay those costs.

       In its written Judgment of Conviction, the trial court assessed court costs and

attorney’s fees of $3,526.25 against Appellant.21 The clerk’s certificate of costs

indicates that $1,931.25 of these costs are attributable to the costs of Appellant’s

appointed trial counsel.22

       Before trial, a magistrate determined that Appellant was indigent and

therefore appointed trial counsel to represent him.23 After his conviction,

Appellant filed a Pauper’s Oath and the trial court appointed counsel to represent

him on appeal.24 The record does not reflect any evidence of a change in

Appellant’s ability to pay his attorney’s fees. Nor does it reflect any determination

made by the trial court that Appellant is no longer indigent. In fact, in the order

appointing appellate counsel, the trial court found that Appellant was “too poor to

employ counsel for his appeal.”25

       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.”26 A finding of indigency

21
   CR, pg. 64
22
   CR, pg. 77
23
   CR, pg. 62
24
   CR, pg. 74
25
   CR, pg. 74
26
   Tex. Code Crim. Pro. Art. 26.05(g)
                                                                                       11
continues until a contrary finding has been made by the court.27 This Court has

previously held that, “Where the record fails to establish and support a defendant’s

financial ability, a trial court errs if it orders the reimbursement of attorney’s

fees.”28

       The record before this Court does not establish Appellant’s financial ability

to pay for his court appointed counsel. Therefore, the trial court erred in assessing

$1,931.25 in attorney’s fees to Appellant.




27
  Tex. Code Crim. Pro. Art. 26.04(p)
28
  Rodriguez v. State, 2013 Tex. App. LEXIS 847 (Tex. App. Texarkana, 2013); citing Mayer v.
State, 309, S.W.3d 552 (Tex. Crim. App. 2010)
                                                                                          12
                                    CONCLUSION

The trial court erred when it failed to conduct a sentencing hearing after

adjudicating Appellant’s guilt. The trial court further erred when it assessed

attorney’s fees to Appellant.

                                       PRAYER


Appellant requests this court to reverse the judgment rendered below and remand

to the trial court for a new hearing. In the alternative, Appellant requests this court

to modify the judgment to remove the requirement for Appellant to pay $1,931.25

in attorney’s fees.




                                               Respectfully Submitted,


                                               /s/ Don Biard_________________
                                               Don Biard
                                               State Bar No. 24047755
                                               McLaughlin, Hutchison & Biard, LLP
                                               38 First Northwest
                                               Paris, Texas 75460
                                               Tel: (903)785-1606
                                               Fax: (903)785-7580
                                               Counsel for Appellant



                                                                                     13
                         CERTIFICATE OF SERVICE

I certify that on January 22, 2015 a copy of the foregoing Appellant’s Brief was
served to the following parties by the method indicated below.



                                                   /s/ Don Biard            //
                                                   Don Biard


Via Email and Regular Mail
Hon. Val Varley
Red River County District Attorney’s Office
400 N. Walnut
Clarksville, Texas 75426
Tel: (903)427-2009
Fax: (903)427-5316




                                                                                   14
  CERTIFICATE OF COMPLIANCE PURSUANT TO TEXAS RULE OF
                 APPELLATE PROCEDURE 9.4(i)(3)
__________________________________________________________________

TO THE HONORABLE COURT OF APPEALS:

      Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,

Counsel for Appellant files this certification that Appellant’s brief is a computer-

generated document that contains 1,891 words. Counsel further certifies that he

relied on the word count of the computer program used to prepare this document.

                                Respectfully submitted,


                                /s/ Don Biard                 //
                                Don Biard
                                State Bar No. 24047755
                                McLaughlin, Hutchison & Biard
                                38 First Northwest
                                Paris, Texas 75460
                                Tel: (903)785-1606
                                Fax: (903)785-7580
                                Attorney for Appellant




                                                                                  15
