Larry Dieken v. State , 2014 Tex. App. LEXIS 4103 ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-12-00866-CR
Larry DIEKEN,
Appellant
v.
The STATE of Texas,
Appellee
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 11-1564-CR
Honorable Gary L. Steel, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Catherine Stone, Chief Justice
Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: April 16, 2014
AFFIRMED
Appellant Larry Dieken pled guilty to aggravated assault with a deadly weapon, and the
jury assessed punishment at life imprisonment and a fine. The trial court imposed the sentence,
appointed appellate counsel, and ordered Dieken to pay attorney’s fees for his court-appointed trial
counsel. Dieken appealed. His court-appointed appellate counsel filed an Anders brief, and
Dieken filed a pro se brief. We agree with Appellant’s court-appointed counsel there are no
arguable issues on appeal pertaining to Dieken’s conviction, but we separately address the trial
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court’s order for Dieken to reimburse the county for his court-appointed attorney’s fees. We affirm
the trial court’s judgment.
BACKGROUND
Appellant Larry Dieken was indicted for first degree aggravated assault with a deadly
weapon causing serious bodily injury to a household member. Dieken pled guilty before the jury,
and the jury assessed punishment at confinement in the Texas Department of Criminal Justice—
Institutional Division for a term of life and a fine of $10,000.00. The trial court orally ordered the
punishment assessed by the jury and further ordered Dieken to pay all fines and court costs.
Subsequently, the trial court signed two orders on the same day: (1) a written judgment of
conviction assessing costs including $524.50 for attorney’s fees; and (2) an order appointing
appellate counsel to represent Dieken on appeal. Appellate counsel filed an Anders brief asserting
the record contains no arguable errors to attack the conviction, see Anders v. California, 386 U.S.
738, 744 (1967), but challenging the trial court’s order requiring Dieken to pay the attorney’s fees
for his court-appointed trial counsel. Before we address the attorney’s fees question, we consider
whether Dieken has any arguable issues on the merits of his conviction.
NO ARGUABLE ISSUES ON CONVICTION
Dieken’s court-appointed appellate attorney filed a brief containing a professional
evaluation of the record in accordance with Anders procedures; counsel also filed a motion to
withdraw. See id. In counsel’s brief, counsel raises no arguable appellate issues on the conviction
or sentence, and necessarily concludes this appeal is wholly frivolous. Counsel’s brief meets the
Anders requirements. See id.; High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.]
1978); Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). As required, counsel
provided Dieken with a copy of the brief and counsel’s motion to withdraw, and informed Dieken
of his right to review the record and file a pro se brief. See Nichols v. State, 954 S.W.2d 83, 85–
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86 (Tex. App.—San Antonio 1997, no pet.); see also Bruns v. State, 924 S.W.2d 176, 177 n.1
(Tex. App.—San Antonio 1996, no pet.).
In his pro se brief, Dieken complains about the jury selection process, ineffective assistance
of counsel, alleged defects in the clerk’s and reporter’s records, and other issues.
After reviewing the record, counsel’s brief, and Dieken’s pro se brief, we conclude there
is no reversible error and, except for the question of attorney’s fees, the appeal is wholly frivolous.
See Anders, 386 U.S. at 744; Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005)
(citing Anders and allowing appellate courts to not address every issue raised if, after reviewing
the record, the court finds no reversible error). Therefore, we turn to the question of attorney’s
fees.
ATTORNEY’S FEES
Dieken challenges the assessment of $524.50 in attorney’s fees as part of the costs imposed
in the judgment. He asserts the trial court twice found him indigent for purposes of trial, he was
presumed to remain indigent, the trial court again found him indigent for purposes of this appeal,
and there is no evidence to show he was able to pay the court-appointed trial attorney’s fees.
A. Applicable Law
“A defendant who is determined by the court to be indigent is presumed to remain indigent
for the remainder of the proceedings in the case unless a material change in the defendant’s
financial circumstances occurs.” TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2014);
accord Wiley v. State, 410 S.W.3d 313, 317 (Tex. Crim. App. 2013); Mayer v. State, 309 S.W.3d
552, 557 (Tex. Crim. App. 2010); Fulmer v. State, 401 S.W.3d 305, 318 (Tex. App.—San Antonio,
pet. ref’d), cert. denied, 134 S. Ct. 436 (2013). On the other hand,
[i]f the court determines that a defendant has financial resources that enable him to
offset in part or in whole the costs of the legal services provided, . . . the court shall
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order the defendant to pay . . . as court costs the amount that it finds the defendant
is able to pay.
TEX. CODE CRIM. PROC. ANN. art. 26.05(g); accord Mayer, 309 S.W.3d at 556. “[T]he defendant’s
financial resources and ability to pay are explicit critical elements in the trial court’s determination
of the propriety of ordering reimbursement of costs and fees.” Mayer, 309 S.W.3d at 556.
If the trial court imposes court-appointed attorney’s fees as part of court costs, an appellant
may challenge the imposition for the first time on appeal by raising a sufficiency of the evidence
issue. Id.; Fulmer, 401 S.W.3d at 318. We review the record to determine whether the trial court
could have reasonably determined the appellant’s financial circumstances experienced a material
change and the appellant was able to pay the court-appointed attorney’s fees. See TEX. CODE
CRIM. PROC. ANN. art. 26.04(p); McFatridge v. State, 309 S.W.3d 1, 6 (Tex. Crim. App. 2010).
We view the evidence in the light most favorable to the judgment. Mayer, 309 S.W.3d at 557.
B. Analysis
For the first time on appeal, Dieken contends there is insufficient evidence of his ability to
pay attorney’s fees. See id. at 556; Fulmer, 401 S.W.3d at 318. Before we review the evidence,
we first consider the definition of indigence.
1. Definition of Indigence
A criminal defendant who asserts he is “without means to employ counsel of my own
choosing,” may petition the court to appoint counsel to represent him at the county’s expense.
TEX. CODE CRIM. PROC. ANN. art. 26.04(o) (providing oath of indigence language); id. art. 26.05(f)
(requiring counties to pay indigents’ costs and attorney’s fees). On the defendant’s request and
affidavit, the court determines whether the defendant has the means to hire counsel—or in
abbreviated form, whether the defendant is “indigent.” Id. art. 26.04(m). Courts’ determinations
that a defendant is indigent or not indigent may suggest that indigence is a binary condition. See,
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e.g., Wiley, 410 S.W.3d at 317 (referring to defendants who were “declared indigent” or “found
indigent”); Mayer, 309 S.W.3d at 557 (same). Several statutory provisions also use seemingly
“either-or” language. See, e.g., TEX. CODE CRIM. PROC. ANN. art. 26.04(l), (m), (o) (referring to
“whether a defendant is indigent”); id. art. 26.04(p) (referring to “a determination of indigency or
nonindigency”).
But the statute controlling reimbursement of court-appointed attorney’s fees expressly
contemplates a middle ground—a defendant who is able to pay for a portion of his legal services: 1
If the court determines that a defendant has financial resources that enable him to
offset in part or in whole the costs of the legal services provided, including any
expenses and costs, the court shall order the defendant to pay during the pendency
of the charges or, if convicted, as court costs the amount that it finds the defendant
is able to pay.
TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (emphasis added); see Wiley, 410 S.W.3d at 317 (citing
the statutory provision). Article 26.05(g) authorizes a court to determine that a defendant is able
to pay a portion of the costs of his legal services but is unable to pay the balance. TEX. CODE
CRIM. PROC. ANN. art. 26.05(g). The statute clarifies the definition to show indigence is not merely
a binary condition—either too poor to afford any counsel at any time (indigent), or rich enough to
retain counsel at all stages of the case (not indigent). Id. Instead, indigence—a measure of whether
a defendant is able to pay for legal services—is a spectrum that includes financial circumstances
where the defendant is able to pay for part, but not all, of the legal services provided. See TEX.
CODE CRIM. PROC. ANN. art. 26.05(g); cf. McFatridge, 309 S.W.3d at 6 (distinguishing indigence
for purposes of a free record and indigence for appointing counsel: “A defendant can be found
indigent for one purpose without being found indigent for the other.”).
1
“[C]osts of legal services provided” include attorney’s fees for court-appointed counsel. TEX. CODE CRIM. PROC.
ANN. art. 26.05(a), (e), (g).
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2. Material Change, Ability to Pay
The defendant’s ability to pay may also change over time, and the court may reconsider
any earlier indigence determination. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Whitehead
v. State, 130 S.W.3d 866, 876 (Tex. Crim. App. 2004) (“The question of indigence is subject to
reconsideration if the defendant’s financial status changes and, at least in the case of appointed
counsel, the defendant can be required to reimburse the cost of legal services if it is later
determined that he is able to do so.” (footnote omitted)); cf. Sturdivant v. State, No. 01-12-00089-
CR, 2013 WL 1972179, at *21 (Tex. App.—Houston [1st Dist.] May 14, 2013), judgment vacated
on other grounds, 411 S.W.3d 487 (Tex. Crim. App. 2013) (finding a material change in
appellant’s financial circumstances and ordering her to pay for the legal services provided in full).
For example, if a defendant is indicted, is found able to pay for retained counsel (“not indigent”),
but suffers a serious financial setback, the defendant may move the court to reconsider its earlier
determination. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Whitehead, 130 S.W.3d at 876.
On the other hand, if a defendant is initially found “indigent,” but receives a financial windfall
before the judgment is signed, the statute expressly contemplates that the State may move for
reconsideration. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Whitehead, 130 S.W.3d at 876;
cf. Sturdivant, 2013 WL 1972179, at *21. If the trial court grants the motion and determines the
defendant is financially able to reimburse the county for all or part of the legal services it provided,
the trial court is obligated to order the defendant to do so. TEX. CODE CRIM. PROC. ANN. art.
26.05(g); see Wiley, 410 S.W.3d at 317; Whitehead, 130 S.W.3d at 876. We turn now to the
evidence.
3. Relevant Evidence
On May 31, 2011, the trial court determined that Dieken was “too poor to employ counsel
for his defense in this cause” and appointed counsel to represent him. From that date, Dieken was
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“presumed to remain indigent . . . unless a material change in [Dieken’s] financial circumstances
occur[red].” See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Wiley, 410 S.W.3d at 317; Mayer,
309 S.W.3d at 557. In a bond reduction hearing on September 27, 2011, Dieken testified that when
he was working full-time, his take-home pay was about $9,300 per month, but he has not worked
since his arrest because he has been continuously incarcerated. On November 9, 2011, the trial
court again found Dieken was “too poor to employ counsel,” granted the first appointed counsel’s
motion to withdraw, and appointed a replacement attorney.
During an April 18, 2012 hearing on Dieken’s motion to reduce bail, Dieken testified about
his financial circumstances. He testified he had a 401(k) retirement account valued at about $2,000
that he was trying to liquidate, and he might receive funds from an insurance claim. He asked the
court to dismiss his second court-appointed attorney because he was going to “get my own lawyer.”
On May 8, 2012, George Carroll filed a notice of appearance; the notice stated “Larry
Dieken[] retained George Carroll.” In the May 22, 2012 hearing on Dieken’s motion for
continuance, retained counsel advised the court that Dieken hired him, and a third party would pay
on Dieken’s behalf for a forensic psychiatrist to examine Dieken. The trial court granted retained
counsel’s motion to substitute, but did not make an oral or written finding that (1) Dieken’s
financial circumstances experienced a material change or (2) Dieken had the ability to pay his
court-appointed trial counsel’s fees. After the trial concluded, the court’s written judgment
imposed court costs including $524.50 in attorney’s fees for Dieken’s court-appointed trial
counsel.
4. Sufficient Evidence
To impose the attorney’s fees on Dieken, the trial court had to find, either expressly or
implicitly, that a material change occurred and Dieken had the ability to pay $524.50 for his court-
appointed attorney’s fees. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g); Wiley, 410 S.W.3d at
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317; Mayer, 309 S.W.3d at 556. It did not make an express written or oral finding, 2 and we must
determine whether the evidence reasonably supports such an implicit finding. See Mayer, 309
S.W.3d at 557 (sufficiency review); cf. McFatridge, 309 S.W.3d at 5–6, 9 (reiterating the appellate
review process for an indigence determination and requiring “the trial court’s determinations [to
be] reasonably supported by the evidence”).
The trial court heard testimony and received documents that reasonably supported its
determination. See McFatridge, 309 S.W.3d at 9. Dieken testified he had a 401(k) account he
was trying to liquidate, and he might receive funds from an insurance claim. Dieken’s retained
counsel presented a motion to substitute which expressly stated that Dieken retained counsel, and
counsel stated on the record in open court that Dieken hired him. Retained counsel also advised
the court that a third party had agreed to pay—on Dieken’s behalf—the expert psychiatrist’s fee.
We conclude the trial court’s implicit determinations that (1) a material change occurred
sometime after it found Dieken indigent and before Dieken retained counsel, and (2) Dieken was
able to pay the $524.50 in court-appointed attorney’s fees are reasonably supported by the
evidence. See Mayer, 309 S.W.3d at 556 (required findings); McFatridge, 309 S.W.3d at 9
(reasonable support in evidence). Further, the trial court’s order appointing appellate counsel,
signed the same day as the judgment, is not inconsistent with the ordered attorney’s fees; the trial
court could have found Dieken was able to pay $524.50 in trial attorney’s fees but unable to pay
attorney’s fees to appeal. See McFatridge, 309 S.W.3d at 6.
Viewing the evidence in the light most favorable to the judgment, see Mayer, 309 S.W.3d
at 557, we conclude the trial court did not err in ordering Dieken to pay $524.50 in attorney’s fees.
We overrule Dieken’s complaint about the imposition of court-appointed attorney’s fees.
2
The statute does not require an express finding, but a clear, written finding or an unequivocal oral pronouncement
on the record in open court is preferred. Cf. TEX. CODE CRIM. PROC. ANN. art. 26.05(g).
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CONCLUSION
Having reviewed the record and the briefs, we conclude there are no arguable issues on
appeal pertaining to Dieken’s conviction. To support its judgment, the trial court necessarily—
albeit implicitly—found Dieken’s financial circumstances experienced a material change and he
was able to pay $524.50 for court-appointed attorney’s fees. Viewing the evidence in the light
most favorable to the judgment, we conclude the evidence reasonably supports the trial court’s
order imposing $524.50 in attorney’s fees. See Mayer, 309 S.W.3d at 557. We affirm the trial
court’s judgment and grant appellate counsel’s motion to withdraw. 3 See Nichols, 954 S.W.2d at
85–86; Bruns, 924 S.W.2d at 177 n.1.
Patricia O. Alvarez, Justice
PUBLISH
3
No substitute counsel will be appointed; if Appellant desires to take further action in this case, he must either retain
counsel or act through self-representation. If Appellant seeks additional review by this court, Appellant may file a
motion for rehearing or motion for en banc reconsideration. See TEX. R. APP. P. 49.1, 49.7. If Appellant seeks further
review by the Texas Court of Criminal Appeals, he must file a petition for discretionary review. Any petition for
discretionary review must be filed within thirty days from (1) the date of this opinion or (2) the date the last timely
motion for rehearing or en banc reconsideration is overruled by this court. See TEX. R. APP. P. 68.2. Any petition for
discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals. See id. R. 68.3(a). The
mailing address for the court is as follows:
Court of Criminal Appeals
P.O. Box 12308
Austin, Texas 78711-2308
Any petition for discretionary review must comply with the requirements of Rule 68.4 of the Texas Rules of Appellate
Procedure. See id. R. 68.4.
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