Lead Opinion
OPINION
On September 11, 2007, Appellant, Paul David Wolfe, plead guilty and was placed on five years deferred adjudication for the offense of aggravated assault.
Analysis
By issues one through three, he challenges the taxation of court-appointed attorney’s fees.. We will address issues one through three together.
COURT-APPOINTED ATTORNEY’S FEES
Concerning the assessment of court appointed attorney’s fees, Appellant asserts: (1) the fees were improperly assessed because there was no finding by the trial court that he had the ability to pay all or any part of the fees assessed, (2) the record is devoid of any evidence showing he is able to pay all or any part of the fees assessed, and (8) there is insufficient evidence to sustain the imposition of the $825 in attorney’s fees awarded after the adjudication of guilt and assessment of sentence. In response to Appellant’s first two issues, the State contends that because he failed to immediately appeal the $400 in attorney’s fees awarded following his original plea bargain, this Court lacks jurisdiction and Appellant should not be heard to complain about those fees at this time. As for the remaining portion of the attorney’s fees, totaling $1,225, the State does not argue the jurisdictional issue and it candidly agrees that these fees should be deleted from the judgment. As to the third issue, while the State contends there is sufficient evidence to sustain the amount of the attorney’s fees awarded after the revocation of Appellant’s deferred adjudication, it candidly concedes there is insufficient evidence pertaining to his ability to pay, and
By now, it is well established that in order to assess court-appointed attorney’s fees in a judgment, a trial court must determine that the defendant has financial resources that enable him to offset in part or in whole the costs of legal services provided. See Tex.Code Crim. Proc. Ann. art. 26.05(g) (West Supp.2011). See also Mayer v. State,
Here, the clerk’s record reflects that at each stage in this proceeding (the original plea, the modification, and the revocation) the trial court found Appellant to be indigent. Unless a material change in his financial resources occurs, once a criminal defendant has been found to be indigent, he is presumed to remain indigent for the remainder of the proceedings. Tex.Code Crim. Proc. Ann. art. 26.04(p) (West Supp.2011). Therefore, because there is evidence of record demonstrating that Appellant was indigent immediately prior to each time attorney’s fees were awarded, we presume that he was indigent at the time of each award.
The State would have us differentiate between fees awarded following the original plea granting community supervision and the fees awarded following the modification and subsequent revocation. Relying upon Olivo v. State,
As to Appellant’s “no evidence” argument, the State contends that because a plea agreement is generally held to constitute a contractual agreement, Appellant should not be heard to complain about the “court costs and fees” he bargained for in order to originally obtain deferred adjudication. Various courts of appeals, and even the justices of this Court, have disagreed as to whether a prior agreement to pay attorney’s fees pursuant to an order of community supervision (whether deferred adjudication or straight community supervision) should bar an appellant from arguing the insufficiency of the evidence to
Both Price and Reyes rely heavily upon Speth v. State,
Furthermore, in Armstrong, after being directly confronted with the State’s argument that Speth controlled the disposition of a direct appeal complaining about the insufficiency of the evidence in a post-revocation of community supervision assessment of attorney’s fees case, the Court of Criminal Appeals chose to remand the appellant’s sufficiency argument to this Court for further consideration. Armstrong,
Furthermore, agreeing to pay attorney’s fees as a condition of community supervision and having the actual ability to pay those fees are two entirely different concepts. See Marquez,
That being said, we find the record in this case contains no evidence that Appellant had the financial resources that would enable him to offset in part or in whole the costs of the legal services provided to him at any time, and we conclude that the judgment assessing court costs in accordance with the Bill of Costs dated on May 10, 2010, is not supported by sufficient evidence and is, therefore, improper. Therefore, we conclude that an assessment of attorney’s fees would be improper. See Mayer,
SheRiff’s Fees
By his fourth issue, Appellant contends the evidence was insufficient to support $171.94 of the $196.74 assessed as sheriffs fees. After Appellant filed his brief, ap
Without the necessity of pronouncement in open court, or inclusion in the written judgment, Weir v. State,
Based upon the record, we conclude the evidence was sufficient to support the assessment of the sheriff’s fees contained in the Bill of Costs. Accordingly, we overrule Appellant’s fourth issue.
Conclusion
The judgment of the trial court is modified to add the following provision at page 2 beneath the heading “Furthermore, the following special findings or orders apply”: “As used herein the term ‘court costs’ does not include court-appointed attorney’s fees.” As modified, the judgment is affirmed.
CAMPBELL, J., concurring and dissenting.
Notes
. See Tex. Penal Code Ann. § 22.02(a)(2) (West 2011).
. The attachment was not prepared until five days after the judgment was signed. Although we will address the attachment as a part of the trial court’s judgment, this opinion should not be read as approving the procedure of adding an attachment to an already signed document.
. In his dissent, Justice Campbell disagrees contending that the very substance of Appellant's complaint is the terms and conditions of probation. [Op. at 151],
. Tex. Gov’t Code Ann. § 102.021(3)(B) (West Supp.2011).
. Tex. Gov’t Code Ann. § 102.021(3)(C) (West Supp.2011).
. Tex. Gov’t Code Ann. § 102.021(3)(D) (West Supp.2011).
. Tex. Gov’t Code Ann. § 102.021(3)(E) (West Supp.2011).
. Tex. Gov’t Code Ann. § 102.021(3)(I) (West Supp.2011).
Concurrence Opinion
concurring and dissenting.
The majority’s opinion is correct in all respects but one. I join in the opinion’s discussion and action with regard to the $400 attorney’s fees assessed against appellant Paul David Wolfe after the January 2008 modification of his terms of community supervision and the $825 attorney’s fees assessed him after the April 2010 revocation of his community supervision, adjudication of guilt and sentencing. The majority properly modifies the trial court’s judgment to eliminate those fees, because the record contains no evidence appellant had the ability to offset the fees in whole or in part. Tex.Code Crim. Proc. Ann.
My difference with my colleagues concerns appellant’s ability to challenge, at this time, the $400 in attorney’s fees assessed against him in September 2007 on the occasion of his original plea hearing and placement on deferred-adjudication community supervision.
On his indictment in May 2007, appellant asserted his indigence and was appointed counsel. Pursuant to a plea bargain agreement, he plead guilty and received deferred-adjudication community supervision. A condition of the community supervision order required that appellant pay all court costs including the fee of his appointed counsel. The clerk’s record contains a bill of costs issued in September 2007 that lists court-appointed attorney’s fees of $400.
The majority is correct that Armstrong similarly involved a bill of costs containing attorney’s fees assessed on an original plea hearing, a later modification of the terms of community supervision and a later revocation, adjudication and sentencing. Armstrong v. State,
In Armstrong, the Court of Criminal Appeals concluded that on direct appeal of his criminal conviction Armstrong was entitled to review of his claim that insufficient evidence supported the required reimbursement of court-appointed attorney’s fees mandated by the clerk’s bill of costs issued pursuant to article 103.001 of the Code of Criminal Procedure.
In Reyes v. State,
The majority finds Speth does not control the issue, asserting appellant is not complaining about the terms and conditions of his community supervision. Wolfe v. State,
Under other generally-applied principles, if appellant wished to complain of attorney’s fees taxed against him through the 2007 order of deferred-adjudication community supervision, he was required to raise the issue in a timely-filed appeal of that order.
The majority finds Olivo inapposite because it involved a late notice of appeal and because, the majority says, appellant is not “attempting to appeal the September 2007 order placing him on deferred adjudication.” Wolfe,
The Court of Criminal Appeals’ Armstrong opinion contains a reference to Speth and Reyes, in a paragraph of the opinion describing the arguments made by the State.
I now regard that view as reflecting an overly-broad reading of Armstrong. I do not read Armstrong as negating the application of Speth, Manuel or Olivo in the analysis of challenges to assessment of attorney’s fees imposed as a condition of community supervision on direct appeal following revocation, even when that challenge is brought to fees assessed only in a certified bill of costs. See Leonard v. State, — S.W.3d -, -, No. PD-0551-10,
Accordingly, I would dismiss appellant’s challenge of attorney’s fees ordered repaid as a condition of community supervision in 2007. I would modify the judgment to limit the amount of court-appointed attorney’s fees taxed to appellant as a cost of court to $400, and otherwise affirm the judgment. To the extent the majority modifies the judgment by addressing the 2007 attorney’s fees, I respectfully dissent.
. In Armstrong, the Court of Criminal Appeals quoted the statement of Justice Pirtle that our court is being asked to review bills of costs with increasing frequency.
. The record contains appellant’s “waiver of appeal after sentence has been imposed in accordance with plea bargain agreement,” signed by appellant and his counsel at the time appellant's adjudication was deferred. Accordingly, the trial court's certification following the deferral of adjudication states appellant had no right of appeal and he waived the right of appeal. See Tex.R.App. P. 25.2(a)(2); Hargesheimer v. State,
. By its conclusion that no question of this court’s jurisdiction is raised by appellant’s appeal, the majority may be using the term "jurisdiction” in the sense of the court’s power to hear and determine a case. We lack jurisdiction under Olivo to hear untimely-filed appeals because our jurisdiction has not been legally invoked. See Olivo,
Lead Opinion
ORDER DENYING MOTION FOR EN BANC REHEARING
On this day came on to be heard the Motion for Rehearing En Banc filed the
It is so ordered.
Dissenting Opinion
Dissent from, Denial of Motion for Rehearing En Banc
I respectfully dissent from the decision to deny the motion for rehearing en banc of the panel opinion in Wolfe v. State, No. 07-10-0201-CR, 2012 Tex.App. Lexis 5368 (Tex.App.-Amarillo July 6, 2012, no pet. h.). The request was made sua sponte pursuant to Texas Rule of Appellate Procedure 41.2(c) due to my conclusion that the Court of Criminal Appeals’ decision in Armstrong v. State,
For the foregoing reason, I believe that reconsideration en banc was needed and respectfully dissent from the decision to deny same.