                                                                      ACCEPTED
                                                                 12-14-00143-CR
                                                     TWELFTH COURT OF APPEALS
                                                                  TYLER, TEXAS
                                                            2/18/2015 8:15:38 PM
                                                                    CATHY LUSK
                                                                          CLERK

            ORAL ARGUMENT NOT REQUESTED

                   NO. 12-14-00143-CR            FILED IN
                                          12th COURT OF APPEALS
                                               TYLER, TEXAS
               IN THE COURT OF APPEALS    2/18/2015 8:15:38 PM
                 12TH JUDICIAL DISTRICT        CATHY S. LUSK
                                                   Clerk
                       TYLER, TEXAS



                    JOSHUA ARDRY,
                      APPELLANT


                             VS.


                  THE STATE OF TEXAS,
                       APPELLEE


       ON APPEAL IN CAUSE NUMBER 114-0955-11
       FROM THE 114th JUDICIAL DISTRICT COURT
             OF SMITH COUNTY, TEXAS
    HONORABLE CHRISTI KENNEDY, JUDGE PRESIDING


                  APPELLANT’S BRIEF

JAMES W. HUGGLER, JR.
100 E. FERGUSON, SUITE 805
TYLER, TEXAS 75702
903-593-2400
STATE BAR NUMBER 00795437

ATTORNEY FOR APPELLANT
             IDENTITY OF PARTIES AND COUNSEL

APPELLANT:
    Joshua Ardry

APPELLANT’S TRIAL COUNSEL
    Melvin Thompson
    8108 S. Wall
    Tyler, Texas 75701
    903-596-7856

APPELLANT’S APPELLATE COUNSEL
    James Huggler
    100 E. Ferguson, Suite 805
    Tyler, Texas 75702
    903-593-2400
    903-593-3830 (fax)

APPELLEE
    The State of Texas

APPELLEE’S TRIAL COUNSEL
    J. Patrick Murphy
    Jacob Putman
    Lucas Machicek
    Chris Gatewood
    Whitney Tharpe
    Smith County Criminal District Attorney’s Office
    100 N. Broadway, 4th Floor
    Tyler, Texas 75702
    903-590-1720
    903-590-1719 (fax)

APPELLEE’S APPELLATE COUNSEL
    Michael West
    Smith County Criminal District Attorney’s Office
    100 N. Broadway, 4th Floor
                                 ii
Tyler, Texas 75702
903-590-1720
903-590-1719 (fax)




                     iii
                                  TABLE OF CONTENTS
                                                                                               PAGE

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

        ISSUE ONE: The trial court erred in imposing attorney fees
        following a finding that Mr. Ardry was indigent and was
        appointed counsel.

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ISSUE ONE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

        A. Law on Attorney Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
        B. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
        C. Application to These Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
        D. Remedy and Relief Requested.. . . . . . . . . . . . . . . . . . . . . . . . . 11

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13



                                                    iv
                               TABLE OF AUTHORITIES
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West 2010).. . . . . . . . . . . . . 5
TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West 2010). . . . . . . . . . . . . . 5
TEX. CODE CRIM. PROC. ANN. art. 103.001 (West 2010). . . . . . . . . . . . . . 6
TEX. GOV’T CODE ANN. §§ 102.001-.142 (West 2010). . . . . . . . . . . . . . . . 6
TEX. GOV’T CODE ANN. § 102.021 (West 2010). . . . . . . . . . . . . . . . . . . . . 6
TEX. GOV’T CODE ANN. § 103.006 (West 2010). . . . . . . . . . . . . . . . . . . . . 7
TEX. PENAL CODE ANN. §22.04(a)(1) and (e) (West 2010).. . . . . . . . . . 1, 3


CASES
Armstrong v. State, 340 S.W.3d 759 (Tex. Crim. App. 2011). . . . . . . 6, 7
Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005).. . . . . . . . 8
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,
   61 L. Ed. 2d 560 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). . . . . 7, 8
Johnson v. State, 405 S.W.3d 350, 354 (Tex. App. – Tyler
   2013, no pet). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8
Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010). . . . . . . 5, 8
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991). . . . 8
Owen v. State, 352 S.W.3d 542, 5148 (Tex. App. – Amarillo
   2011, no pet). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7
Riles v. State, No. PD-1757-13, 2015 Tex. App. LEXIS 135
   (Tex. Crim. App. Feb. 4, 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009). . . . . . . . . . 6
Williams v. State, 332 S.W.3d 694, 699 (Tex. App. – Amarillo
   2011, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
                                                   v
RULES
TEX. R. APP. PROC. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
TEX. R. APP. PROC. 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1




                                                  vi
                                 NO. 12-14-00143-CR


JOSHUA ARDRY                                  §   IN THE COURT OF APPEALS
APPELLANT                                     §
                                              §
VS.                                           §   12TH JUDICIAL DISTRICT
                                              §
THE STATE OF TEXAS,                           §
APPELLEE                                      §   TYLER, TEXAS


                                APPELLANT’S BRIEF


TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES
THEREOF:


       Comes now Joshua Ardry, (“Appellant”), by and through his attorney

of record, James Huggler, and pursuant to the provisions of TEX. R. APP.

PROC. 38, et seq., respectfully submits this brief on appeal.




                           STATEMENT OF THE CASE

       Appellant was indicted in Cause Number 114-0955-11 for the first

degree felony offense of injury to a child. I CR 11; see TEX. PENAL CODE

       1
        References to the Clerk’s Record are designated “CR” with a roman numeral preceding
“CR” indicating the correct volume and an arabic numeral following “CR” specifying the correct
                                               1
ANN. §22.04(a)(1) and (e) (West 2010). Mr. Ardry entered a plea of guilty

pursuant to an agreement and received deferred adjudication probation.

I CR 16-17; II RR 18, 22.2

       The State filed a motion to proceed to final adjudication, Mr. Ardry

entered true pleas to six allegations.               I CR 48-52, 59; V RR 10-14.

Following evidence and argument of counsel, the court sentenced Mr.

Ardry to forty years confinement. I CR 54-55; V RR 47. Notice of appeal

was timely filed on May 30, 2014. I CR 63. This Brief is timely filed on

or before February 19, 2015 following proper extension granted by this

Court.




page in the record.

       2
         References to the Reporter’s Record are designated “RR” with a roman numeral
preceding “RR” indicating the correct volume, and an arabic numeral following “RR” specifying
the correct page.
                                               2
                          ISSUE PRESENTED

ISSUE ONE: THE TRIAL COURT ERRED IN IMPOSING ATTORNEY
FEES FOLLOWING A FINDING THAT MR. ARDRY WAS INDIGENT
AND WAS APPOINTED COUNSEL.




                     STATEMENT OF THE FACTS

     Appellant was indicted in Cause Number 114-0955-11 for the first

degree felony offense of injury to a child. I CR 1; see TEX. PENAL CODE

ANN. §22.04(a)(1) and (e) (West 2010). Mr. Ardry entered a plea of guilty

pursuant to an agreement and received ten years deferred adjudication

probation. I CR 16-17; II RR 18, 22. The State filed two applications to

proceed to final adjudication in the case. I CR 45-46; IV RR 26-27.

     The second application to revoke included allegations that Mr.

Ardry: (1) was the same person placed on deferred adjudication; (2) that

he moved his residence without notification; (3) that he possessed

methamphetamine; (4)that he consumed methamphetamine; (5) that he

failed to pay for three urine tests; (6) that he had contact with law

enforcement and did not report the contact to probation; (7) that he failed

to pay the supervision fee for three months; and (8) that he failed to report
                                      3
five times.     I CR 48-52.   Mr. Ardry entered true pleas to all the

allegations, except the failure to pay for urine tests and reporting contact

with law enforcement. I CR 59, 83; V RR 10-14. Following evidence and

argument of counsel, the court sentenced Mr. Ardry to forty years

confinement. I CR 54-55; V RR 47. Further discussion of relevant facts

is included below.




                      SUMMARY OF ARGUMENT

     The error for this Court to consider involves the improper

assessment of court costs. The trial court improperly ordered

reimbursement of attorney fees after Mr. Ardry was found to be indigent

and was appointed counsel. The attorney fees were included in the

judgment placing him on probation, and were collected. Because there

was never any allegation that Mr. Ardry failed to pay any required fees or

costs, Smith County collected $300 from Mr. Ardry to which legally it was

not entitled.




                                     4
                              ARGUMENT

ISSUE TWO, RESTATED: THE TRIAL COURT ERRED IN IMPOSING
ATTORNEY FEES FOLLOWING A FINDING THAT MR. ARDRY WAS
INDIGENT AND WAS APPOINTED COUNSEL.


                       A. Law on Attorney’s Fees

     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 2010). Once a defendant has been

determined to be indigent, he is presumed to remain indigent for the

remainder of the proceedings unless a material change in his financial

circumstances occurs. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West

2010). Before attorney’s fees may be imposed, the trial court must make

a determination supported by some factual basis in the record that the

defendant has financial resources to enable him to offset in whole or in

part the costs of the legal services provided. Johnson v. State, 405 S.W.3d

350, 354 (Tex. App. – Tyler 2013, no pet). If the record does not show any

material change in the defendant’s financial circumstances, 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, 557

                                     5
(Tex. Crim. App. 2010).

     Court costs are pre-determined, legislatively-mandated obligations

resulting from a conviction. See, e.g., TEX. GOV'T CODE ANN. §§

102.001-.142 (West 2010) (setting forth various court costs that a

convicted person "shall" pay).    A sentencing court shall impose the

statutory court costs at the time a defendant is sentenced. Armstrong v.

State, 340 S.W.3d 759 (Tex. Crim. App. 2011); TEX. GOV’T CODE ANN.

§102.021 (West 2010). Court costs are not punitive in nature and do not

have to be included in an oral pronouncement of a sentence. Weir v.

State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009).

     A cost is not payable by the person charged with the cost until a

written bill is produced or is ready to be produced, containing the items

of cost, signed by the officer who charged the cost or the officer who is

entitled to receive payment of the cost. TEX. CODE CRIM. PROC. ANN. art.

103.001 (West 2010). The clerk of the trial court is required to keep a fee

record, and a statement of an item therein is prima facie evidence of the

correctness of the statement. Owen v. State, 352 S.W.3d 542, 548 (Tex.

App.—Amarillo 2011, no pet.) (citing TEX.CODE CRIM. PROC. ANN. art.

103.009(a), (c)). Until a certified bill of costs has been made part of the
                                     6
record, a defendant has no obligation to pay court costs. Owen, 352

S.W.3d at 547 (citing Armstrong, 340 S.W.3d at 765; Williams v. State,

332 S.W.3d 694, 699 (Tex. App. – Amarillo 2011, pet. denied). In this case,

the only bill of costs ever prepared to support any amount of court costs

was prepared on June 27, 2014, almost three years after the attorney fee

was assessed. I CR 75, 16.

      If a criminal action is appealed, "an officer of the court shall certify

and sign a bill of costs stating the costs that have accrued and send the

bill of costs to the court to which the action or proceeding is transferred or

appealed." TEX. CODE CRIM. PROC. ANN. art. 103.006 (West 2010).




                          B. Standard of Review

      The imposition of court costs upon a criminal defendant is a

“nonpunitive recoupment of the costs of judicial resources expended in

connection with the trial of the case.” Johnson v. State, 423 S.W.3d 385,

390 (Tex. Crim. App. 2014). When the imposition of court costs is

challenged on appeal, the court reviews the assessment of costs to

determine if there is a basis for the cost, not to determine if there is

                                      7
sufficient evidence offered at trial to prove each cost. Johnson, 423 S.W.3d

at 390.

     The standard for reviewing a legal sufficiency challenge is whether

any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. at

315-16, 99 S. Ct. at 2786-787; see also Mayer v. State, 309 S.W.3d 552,

557 (Tex. Crim. App. 2010)(sufficiency review of evidence to support order

of repayment of attorney fees as costs).

     A challenge to a withdrawal of funds notification is reviewed for an

abuse of discretion. Williams, 332 S.W.3d at 698. A trial court abuses

its discretion when it acts “without reference to any guiding rules and

principles. Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005);

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991). The

reviewing court may modify a withdrawal order on direct appeal if the

evidence is insufficient to support the assessment of court costs. Johnson

v. State, 405 S.W.3d at 355.




                                     8
                      C. Application to These Facts

     Mr. Ardry has been represented at all by appointed counsel. The

record contains four different orders appointing counsel. I CR 62, II CR

17, 47, and 62. Each pauper’s oath application contains a finding that Mr.

Ardry was indigent. II CR 18-19, 48-49, and 63-64. Finally, appellate

counsel was appointed for this appeal. I CR 62. A motion was filed with

the trial court seeking a free reporter’s record on appeal. I CR 70-72. This

motion was granted by the trial court without opposition from the State

of Texas. I CR 73.

     The September 13, 2011 judgment and order placing Mr. Ardry on

probation included an assessment of $669.00 in court costs. I CR 16-17.

This amount exactly exceeds the bill of costs prepared in 2014 by $300.00.

I CR 75. The final judgment signed May 30, 2014 reflects a zero balance

for court costs, as doers the bill of costs. I CR 54 and 75.

     Each item listed on the bill of costs appear to be properly assessed

costs. I CR 75. The properly assessed costs equal $369.00 in court costs.

However, Smith County collected $669. As this Court is aware from

dozens of other cases, some district courts have routinely assessed a $300


                                      9
fee for costs of an attorney appointed after a finding that a defendant is

indigent.

     There is no evidence to contest the finding that Mr. Ardry was found

indigent. Assessment of attorney’s fees following a finding of indigence is

improper. While the final judgment does not include the attorney’s fee,

judgment placing him on community supervision does, and there was no

allegation that Mr. Ardry ever failed to make required financial payments.

Why the bill of costs does not contain the fee which was assessed three

years previously is not known, but it is certainly reasonable to conclude

that this particular trial court has learned from the number of cases

modified on this issue not to assess the $300 fee for attorney costs.

     Counsel is aware that the Court of Criminal Appeals issued an

opinion on February 4, 2015 and it is expected that the State may agree

that the attorney fee charge was assessed improperly, but that the time

to appeal that decision was in 2011. Riles v. State, No. PD-1757-13, 2015

Tex. App. LEXIS 135 (Tex. Crim. App. Feb 4, 2015). However, the key

difference between Mr. Ardry’s situation and Riles is that the bill of costs

was not prepared until three years after he was placed under supervision


                                     10
and had been paid prior to 2013.3




                           D. Remedy and Relief Requested

       The fee seeking reimbursement for the appointed attorney was

improperly assessed by the court.                   The original judgment should be

modified to reflect the true amount of court costs as assessed in the bill of

costs and the $300 should be ordered to be returned to Mr. Ardry.




       3
         There were no financial allegation related to court costs included in the first application
to proceed to final adjudication filed April 29, 2013. I CR 40-42.
                                                  11
                       PRAYER FOR RELIEF

     WHEREFORE, PREMISES CONSIDERED, Counsel respectfully

prays that this Court modify the judgment of the trial court and order

Smith County to reimburse Mr. Ardry the improperly assessed $300.

                                   Respectfully submitted,


                                   /s/ James Huggler
                                   James W. Huggler, Jr.
                                   State Bar Number 00795437
                                   100 E. Ferguson, Suite 805
                                   Tyler, Texas 75702
                                   903-593-2400
                                   903-593-3830 fax
                                   ATTORNEY FOR APPELLANT




                                  12
                      CERTIFICATE OF SERVICE


A true and correct copy of the foregoing Brief of the Appellant has been
forwarded to counsel for the State by electronic filing on this the 18th day
of February, 2015.


/s/ James Huggler
James W. Huggler, Jr.



Attorney for the State:
Mr. Michael West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702



                   CERTIFICATE OF COMPLIANCE

I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 2,550 words as counted by
Corel WordPerfect version x5.


/s/ James Huggler
James Huggler




                                     13
