Bobby Joe Roberts v. State , 2013 Tex. App. LEXIS 1221 ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00500-CV
Bobby Joe Roberts § From the 355th District Court
§ of Hood County (7263)
v.
§ February 7, 2013
The State of Texas § Opinion by Justice McCoy
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was error in the trial court’s order. The trial court’s withdrawal order is
modified to delete the requirement that Bobby Joe Roberts pay court-appointed
attorney’s fees. It is ordered that the order of the trial court is affirmed as
modified.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Justice Bob McCoy
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00500-CV
BOBBY JOE ROBERTS APPELLANT
V.
THE STATE OF TEXAS APPELLEE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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OPINION
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In one issue, pro se Appellant Bobby Joe Roberts appeals the trial court’s
order requiring him to pay attorney’s fees for his court-appointed trial attorney.
We modify the trial court’s order to withdraw funds and affirm it as modified.1
1
See Tex. R. App. P. 43.2(b).
2
On October 14, 1996, Roberts pleaded guilty to intoxication manslaughter,
was sentenced to fifty years’ confinement, and was ordered to pay $126.50 in
court costs and $250.00 in attorney’s fees. The record indicates that Roberts
was represented by appointed counsel at trial. After the trial court ordered the
funds withdrawn from Roberts’s inmate trust account, Roberts filed a motion to
modify the trial court’s withdrawal order. In his motion, Roberts argued that there
had been no material change in his financial resources since the court found him
indigent and asked the trial court to delete the attorney’s fees from the order. 2
The trial court denied Roberts’s motion, and this appeal followed.
Both parties have informed us that the Texas Department of Criminal
Justice (TDCJ) has released Roberts on parole.
In his sole issue, Roberts complains that the trial court abused its
discretion by ordering him to pay court-appointed attorney’s fees despite finding
him indigent. The State agrees with Roberts, but as a threshold issue, it argues
that Roberts’s release may render his complaint moot because the trial court
ordered a withdrawal of funds from Roberts’s inmate account but Roberts is no
longer incarcerated.
“An issue may become moot when a party seeks a ruling on some matter
that, when rendered, would not have any practical legal effect on a then-existing
2
Roberts acknowledged that section 501.014(e) of the government code
required him to pay the court costs regardless of his ability to pay. See Tex.
Gov’t Code Ann. § 501.014(e) (West 2012).
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controversy.” Meeker v. Tarrant Cnty. Coll. Dist., 317 S.W.3d 754, 759 (Tex.
App.—Fort Worth 2010, pet. denied). We must set aside the judgment and
dismiss the case when an appeal is moot. Id.Although no longer incarcerated, Roberts remains in TDCJ custody while
on parole. See Tex. Gov’t Code Ann. §§ 508.001(6), 508.143(a) (West 2012).
Furthermore, section 501.014(e) of the government code, which permits
withdrawal of funds from an inmate’s trust account to pay court costs, does not
prohibit collecting court costs during a defendant’s subsequent prison stay. Id.
§ 501.014(e); In re Hart, 351 S.W.3d 71, 76 (Tex. App.—Texarkana 2011, no
pet.).
Given that Roberts remains in TDCJ custody while on parole and that the
trial court’s order would still be effective to collect court costs from Roberts’s
inmate trust account should he return to prison, we hold that the issue is not
moot; therefore, we have jurisdiction to decide the issue. See Meeker, 317
S.W.3d at 759.
We review a trial court’s decision to deny a motion to modify a withdrawal
order for an abuse of discretion. Malone v. State, Nos. 02-10-00383-CV, 02–10–
00384–CV, 02–10–00385–CV, 02–10–00386–CV, 02–10–00387–CV, 02–10–
00388–CV, 02–10–00389–CV, 02–10–00390–CV, 2012 WL 579472, at *1 (Tex.
App.—Fort Worth Feb. 23, 2012, pet. denied) (mem. op. on reh’g). A trial court
abuses its discretion if it acts without reference to any guiding rules or principles,
that is, if the act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609,
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614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). A trial
court also abuses its discretion by ruling without supporting evidence. Ford
Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). But an abuse of
discretion does not occur when the trial court bases its decision on conflicting
evidence and some evidence of substantive and probative character supports its
decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009); Butnaru
v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).
Before a trial court can require a defendant to repay court-appointed
attorney’s fees, it must first determine whether the defendant has the financial
resources and the ability to pay. Tex. Code Crim. Proc. Ann. art. 26.05(g) (West
Supp. 2012); Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). “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. 2012). When the trial court requires an
indigent defendant to pay court-appointed attorney’s fees in violation of article
26.05(g), the appellate court should modify the withdrawal order by removing the
attorney’s fees. See Mayer, 309 S.W.3d at 557.
Nothing in the record indicates that Roberts’s financial resources changed
during the pendency of the trial court’s proceedings. Thus, we hold that the trial
court abused its discretion by requiring Roberts to pay court-appointed attorney’s
fees. See id. at 556.
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Accordingly, we modify the trial court’s withdrawal order to delete the
requirement that Roberts pay court-appointed attorney’s fees and affirm the order
as modified. Tex. R. App. P. 43.2(b).
BOB MCCOY
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.
DELIVERED: February 7, 2013
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