Case Information

*0 RECEIVED IN 12th COURT OF APPEALS TYLER, TEXAS 6/23/2015 9:15:37 AM CATHY S. LUSK Clerk *1 ACCEPTED 12-15-00011-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 6/23/2015 9:15:37 AM CATHY LUSK CLERK

No oral argument requested CASE NO. 12-15-00011-CR IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS _______________________________ KELTON DEREK WILSON, Appellant vs.

THE STATE OF TEXAS, Appellee _______________________________ On Appeal from the 3 rd Judicial District Court Henderson County, Texas (Trial Court Case Number: C-21,018) Honorable Judge Mark Calhoon, Judge Presiding BRIEF OF APPELLANT Linda A. Altier Altier Law Offices 1527 E. Fifth St.

Tyler, Texas 75701 Tel: 903-595-4232 Fax: 903-595-0031 e-mail: altierlaw@gmail.com State Bar of Texas No.: 00783541 Attorney for Appellant, Kelton Derek Wilson *2 IDENTITIES OF PARTIES AND COUNSEL State of Texas, Appellee

Plaintiff in Trial Court

Kelton Derek Wilson, Appellant

Defendant in Trial Court

TRIAL COURT COUNSEL

Mr. Mark Hall, Attorney for State

125 N. Prairieville St.

Athens, Texas 75751

Mr. Scott Williams, Attorney for Defendant

100 East Tyler Street,

Athens, Texas 75751

APPELLATE COUNSEL

Linda Altier, Attorney for Appellant

1527 E. Fifth St.

Tyler, Texas 75701

Mark Hall, Attorney for State

125 N. Prairieville St.

Athens, Texas 75751

i *3 TABLE OF CONTENTS Identity of Parties and Counsel ……………………………………………………..i

Index of Authorities ………………………………………………………………iii

Statement of the Case …………………………………………………………….. 2

Issues Presented ……………………………………………………………………3

POINT OF ERROR:

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE TRIAL

COURT’S ASSESSMENT OF ATTORNEY’S FEES AGAINST APPELLANT.

Statement of Facts ………..……………………………………………………….3

Point of Error One Restated. ………………………………………………………4

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

Argument and Authority …………………………………………………………..4

Certificate of Service………………………………………………………………7

Certificate of Compliance………………………………………………………… 8

ii *4 INDEX OF AUTHORITIES CASES: Page

Baker v. State , No. 12-13-00032-CR, Memorandum Opinion, unpublished

(Tex.App.-Tyler 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . ………………………6

Johnson v. State , 405 S.W.3d 350 (Tex.App.-Tyler 2013). .………………………5

Wolfe v. State , 377 S.W.3d 141 (Tex.App.-Amarillo 2012, no pet). …………….9

STATUTES AND RULES:

Texas Code of Criminal Procedure, Article 26.05 . . . .….……………………… 5

iii *5 CASE NO. 12-15-00011-CR IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS _______________________________ KELTON DEREK WILSON, Appellant vs.

THE STATE OF TEXAS, Appellee _______________________________ On Appeal from the 3 rd Judicial District Court Henderson County, Texas (Trial Court Case Number: C-21,018) Honorable Judge Mark Calhoon, Judge Presiding BRIEF OF APPELLANT

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

COMES NOW KELTON DEREK WILSON, hereinafter sometimes referred to as Appellant, and submits this his Brief on Appeal in the above entitled and

numbered Cause, pursuant to the provisions of the Texas Rules of Appellate

Procedure.

1 *6 STATEMENT OF THE CASE APPELLANT WAIVES ORAL ARGUMENT On December 5, 2013, a grand jury indicted Kelton Derek Wilson, hereinafter sometimes referred to as Appellant, for Aggravated Assault Against a

Public Servant, a First Degree Felony, (CR1:1). The record reflects that Mr. Scott

Williams was court appointed to represent indigent Defendant. Appellant waived

his right to a jury in this case and on August 22, 2014 Appellant entered his plea of

guilty to the Court (CR 1:4-5). The Court ordered a presentence investigation

report to be completed by October 13, 2014 for sentencing (CR 1:11-12). On

December 17, 2014 the Court Adjudicated Appellant guilty and sentenced him to

Twenty (20) years confinement in the Texas Department of Corrections

Institutional Division, (CR 1:107-108). Although Defendant was found to be

indigent, the Court ordered him to pay Attorney fees of $1,350.00, in the

Judgement of Conviction. (CR1:107-108). Appellant filed his Notice of Appeal

on December 29, 2014 (CR 1:109-110). On January 7, 2015, Mr. Steve Green

was appointed to represent indigent Defendant on appeal (CR 1:112). In Findings

of Facts and Conclusions of Law entered by the trial Court, Mr. Steve Green was

withdrawn based on conflict of interest and the Court appointed Ms. Linda A.

Altier to represent Appellant on appeal (Supplemental CR 1:2-3).

STATEMENT OF JURISDICTION Therefore, the Twelfth Court of Appeals holds jurisdiction. Note: For purposes of this Appeal Brief, all references to the Clerk’s Record

will be noted as “CR,” followed by the volume number and page number.

References to the Reporter’s Record will be noted as “RR,” followed by the

volume number, page number and line as necessary. Any emphasis added by this

writer will be noted as same immediately following the word or phrase emphasized

by italics. Where two or more points of error involve the same facts, they will be

combined and argued together as permitted by the Texas Rules of Appellate

Procedure.

ISSUES PRESENTED POINT OF ERROR:

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE TRIAL

COURT’S ASSESSMENT OF ATTORNEY’S FEES AGAINST APPELLANT.

STATEMENT OF FACTS On August 22, 2014, Appellant signed an agreed plea recommendation for an open plea to Aggravated Assault Against a Public Servant, wherein he waived

his right to a jury in this Cause (CR 1:4-5). The plea recommendation contained

an agreement to consider five indicted Causes (CR 1:6-8), and to run concurrently

with C-21,018 (CR 1:4). The record also reflects that Mr. Scott Williams was

Court appointed to represent the indigent Defendant. On October 13, 2014 the

trial Court ordered a presentence investigation report to be completed for

sentencing (CR 1:11-12). On December 17, 2014, following testimony the trial

Court Adjudicated Appellant guilty and sentenced him to Twenty (20) years

confinement in the Texas Department of Corrections Institutional Division, (CR

1:107-108). At that time, the trial Court also assessed attorney fees of $1,350.00 to

be paid by Defendant. Upon the withdrawal of Steve Green as Court appointed

appellant attorney, the trial Court found Defendant remained indigent and

appointed Ms. Linda A.Altier as attorney for appeal (Supplemental CR 1:2-3)

POINT OF ERROR (Restated):

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE TRIAL

COURT’S ASSESSMENT OF ATTORNEY’S FEES AGAINST APPELLANT.

SUMMARY OF THE ARGUMENT The trial Court had insufficient evidence of Appellant’s ability to repay Court appointed Attorney’s fees or of any material change in his financial

condition following determination of his indigency, for Appellant to be assessed

the fees in the Judgment of Conviction.

ARGUMENT AND AUTHORITY At the onset of his criminal case, the trial Court found Appellant indigent and without sufficient funds to hire an attorney. Therefore, an attorney was

appointed to represent him. Following his plea of guilty to the trial Court and the

trial Court hearing evidence, the trial Court found Appellant guilty and assessed

punishment at 20 years in the Texas Department of Criminal Justice Institutional

Division and a zero fine, but no testimony or evidence was had regarding

repayment of the attorney fees (RR 1:137). However, the trial Court did sign a

Judgment that included repayment of attorney fees of $1,350.00 (CR 1:107). A

trial Court does have authority to assess attorney’s fees against a Defendant who

receives the assistance of a Court appointed defense attorney if the trial Court finds

the Defendant has financial resources to pay part or all of the attorney fees

Tex.C.C.P. art. 26.05 (g). However, the trial Court did not elicit any testimony or

evidence from Appellant that he had finances to pay the attorney fees or that he

had a material change in his financial circumstances from when he was deemed

indigent. Further, the trial Court knew Appellant was indigent from the onset of

the case because the trial Court approved Appellant’s request for a Court appointed

attorney based on his lack of funds. The trial Court continued to find Appellant

indigent in his request for a Court appointed attorney for his appeal (Sup. CR 1:

2-3). In Johnson v. State , 405 S.W.3d 350 (Tex.App.-Tyler 2013) the Court,

considering Tex.C.C.P. art 26.05, held that once a criminal defendant is determined

to be indigent, he is presumed to continue to be indigent for the remainder of the

proceedings unless a material change occurs in his financial circumstances.

In Wolfe v. State, 377 S.W.3d 141 (Tex.App-Amarillo 2012, no pet) the Court held

that a trial Court must determine by some supported factual basis in the record if a

defendant has financial resources to offset in part or in whole the costs of the Court

appointed attorney fees before the trial Court can impose the attorney fees on the

defendant. In Barker v. State , No. 12-13-00032-CR, Memorandum Opinion (Tex.

App.-Tyler 2015) unpublished, an appeal from the 173 rd District Court, Henderson

County, Texas, the Appellant argued, as does this Appellant (Kelton Wilson), that

the evidence was legally insufficient to support the trial Court’s assessment of

attorney’s fees because there was no evidence in the record to support a finding

that Barker was not indigent. The Court of Appeals, in Barker, held there was no

basis in the record to support the imposition of attorney’s fees and sustained

Barker’s issue concerning attorney fees. For all the above reasons, this case

should be reversed and remanded to the trial Court for rehearing based on

insufficient evidence to support the trial Court’s assessment of attorney fees

against Appellant, in the Judgment.

PRAYER WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays this Honorable Court hold there is insufficient evidence to support the trial Court’s

assessment of attorney fees against Appellant and remand this case for rehearing.

Respectfully Submitted, ALTIER LAW OFFICES 1527 E. Fifth St. Tyler, Texas 75701 Tel: 903-595-4232 Fax: 903-595-0031 altierlaw@gmail.com By: /s/ Linda A. Altier TSBN: 00783541 Attorney for Appellant Kelton Wilson CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Appellant’s Brief was served on Mark Hall, Attorney for the State, and

R. Scott McKee, Henderson County District Attorney, 109 W. Corsicana St., Ste.

103, Athens, Texas, by e-mail to mwhall@co.henderson.tx.us, on June 23, 2015.

/s/ Linda A. Altier *12 CERTIFICATE OF COMPLIANCE In compliance with TRAP 9.4(i), the undersigned hereby certifies that the number of words contained in the above Brief of Appellant are 581; excluding

caption, identity of parties and counsel, statement regarding oral argument, table of

contents, index of authorities, statement of the case, statement of issues presented,

statement of jurisdiction, signature, proof of service, certification, and certificate of

compliance, which is less than the maximum allowed of 15,000 words.

/s/ Linda A. Altier