Carlos Dehenri Cook v. State ( 2015 )

ACCEPTED
12-15-00247-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
11/19/2015 11:02:42 AM
Pam Estes
CLERK
No. 12-15-00247-CR
FILED IN
12th COURT OF APPEALS
IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS
TYLER, TEXAS 11/19/2015 11:02:42 AM
PAM ESTES
Clerk
CARLOS DEHENRI COOK
Appellant,
v.
THE STATE OF TEXAS
Appellee
On Appeal from the Seventh District Court of Smith County, Texas
Trial Cause No. 007-1536-13
ORAL ARGUMENT NOT REQUESTED
Austin Reeve Jackson
Texas Bar No. 24046139
112 East Line, Suite 310
Tyler, TX 75702
Telephone: (903) 595-6070
Facsimile: (866) 387-0152
IDENTITY OF PARTIES AND COUNSEL
Attorney for Appellant
Appellate Counsel:
Austin Reeve Jackson
305 S. Broadway, Suite 700
Tyler, TX 75702
Trial Counsel:
O.W. Loyd
231 S. College Ave.
Tyler, TX 75702
John Jarvis
326 S. Fannin
Tyler, TX 75702
Attorney for the State on Appeal
Michael J. West
Assistant District Attorney, Smith County
4th Floor, Courthouse
100 North Broadway
Tyler, TX 75702
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ................................................................. ii
TABLE OF CONTENTS .............................................................................................. iii
INDEX OF AUTHORITIES ......................................................................................... iv
STATEMENT OF THE CASE .......................................................................................2
ISSUES PRESENTED ....................................................................................................2
STATEMENT OF FACTS ..............................................................................................2
SUMMARY OF THE ARGUMENT ..............................................................................3
ARGUMENT ..................................................................................................................4
I. THE TRIAL COURT ERRED IN ASSESSING ATTORNEY'S
FEES AGAINST AN INDIGENT DEFENDANT ........................................4
Applicable Law ..........................................................................................................4
Relevant Facts ............................................................................................................5
Conclusion ..................................................................................................................6
PRAYER FOR RELIEF ..................................................................................................7
CERTIFICATE OF SERVICE ........................................................................................7
CERTIFICATE OF COMPLIANCE ..............................................................................7
iii
INDEX OF AUTHORITIES
TEXAS COURT OF CRIMINAL APPEALS:
Mayer v. State,
309 S.W.3d 522 (Tex.Crim.App. 2010) ........................................................ 4
TEXAS COURTS OF APPEAL:
Barrera v. State,
291 S.W.3d 515 (Tex.App.—Amarillo 2009) ............................................... 5
Will. v. State,
332 S.W.3d 694 (Tex.App.—Amarillo 2011) ............................................... 4
STATUTES:
TEX. CODE CRIM. PROC. art. 26.04.................................................................... 4
TEX. CODE CRIM. PROC. art. 26.05.................................................................... 4
iv
No. 12-15-00247-CR
IN THE TWELFTH COURT OF APPEALS
TYLER, TEXAS
CARLOS DEHENRI COOK
Appellant,
v.
THE STATE OF TEXAS
Appellee
On Appeal from the Seventh District Court of Smith County, Texas
Trial Cause No. 007-1536-13
TO THE HONORABLE JUSTICES OF THE COURT:
Comes Now, Austin Reeve Jackson, attorney for Carlos Cook, and files this
brief pursuant to the TEXAS RULES OF APPELLATE PROCEDURE, and would show
the Court as follows:
STATEMENT OF THE CASE
Carlos Cook seeks to appeal his conviction and sentence for the felony
offense of Tampering with Evidence. (I CR 74). This judgment was rendered
against him in the Seventh District Court of Smith County in September of this
year. (Id.). After initially being placed on probation following his plea of “guilty”
to the offense, on 22 September, the trial court revoked Mr. Cook’s community
supervision and imposed punishment at five years’ confinement. (Id.). Notice of
appeal was then timely filed. (I CR 72).
ISSUES PRESENTED
I. THE TRIAL COURT ERRED IN ASSESSING
ATTORNEY’S FEES AGAINST AN INDIGENT
DEFENDANT.
STATEMENT OF FACTS
After having been indicted for the felony offense of tampering with
evidence, Appellant, Mr. Carolos Cook, entered a plea of “guilty” before the
Seventh District Court of Smith County and, pursuant to a plea agreement, was
sentenced to serve ten years’ confinement probated for four years. (I CR 1, 44).
Unfortunately, in September of this year Mr. Cook found himself facing an
application to revoke that community supervision. (I CR 48). To all the allegations
made against him, Mr. Cook entered pleas of “true.” (I CR 70). Based on his plea
the trial court found it to be true that Mr. Cook had violated the terms and
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conditions of his community supervision and the court then revoked the
community supervision and sentenced Mr. Cook to serve a term of five years
confinement. (I CR 74). Sentence was pronounced on 22 September and notice of
appeal then timely filed. (I CR 72, 74).
SUMMARY OF ARGUMENT
In the absence of some evidence that a defendant who has previously been
determined to be indigent has the resources to pay all or part of his attorney’s fees,
a trial court errs in imposing the same as a cost of court. Because in the instant
case there was no such evidence, and because Mr. Cook had been determined to be
indigent, the Court should reform the judgment by removing the charged attorney’s
fees.
Alternatively, where the record is not clear as to whether the attorney’s fees
assessed where included in full or part in the amount of court costs ordered, and, in
fact, where the record is silent as to how the amount of costs ordered was derived
from the list of costs in the bill of costs, the Court should remand the case for new
findings on that issue or the creation of a new bill of costs.
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ARGUMENT
I. THE TRIAL COURT ERRED IN ASSESSING
ATTORNEY’S FEES AGAINST AN INDIGENT
DEFENDANT.
Applicable Law
Article 26.05 of the Texas Code of Criminal Procedure provides that the
costs of appointed counsel may be imposed against a defendant if the court finds
that the defendant “has financial resources that enable him to offset in part or in
whole the costs of the legal services provided.” TEX. CODE CRIM. PROC. art.
26.05(g). However, where the record before the court fails to establish a
defendant’s financial ability to offset such costs, “a trial court errs if it orders the
reimbursement of court-appointed attorney’s fees.” Williams v. State, 332 S.W.3d
694, 699 (Tex.App.—Amarillo 2011, pet. denied) (citing Mayer v. State, 309
S.W.3d 522 (Tex.Crim.App. 2010). Further, once a defendant has been found to
be indigent, that finding continues unless evidence establishes a material change in
his financial status. Id. (citing TEX. CODE CRIM. PROC. art. 26.04(p); Mayer, 309
S.W.3d at 557). Where attorney’s fees have erroneously been imposed the proper
remedy is to reform the judgment by deleting the same. Mayer, 309 S.W.3d at
557.
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Relevant Facts
After being indicted for the underlying offense Mr. Cook was determined to
be indigent and granted court appointed counsel. (I CR 14). The same finding was
made when Mr. Jones returned to court on the revocation proceeding. (I CR 56).
Finally, that finding of indigence continued for purposes of appeal. (I CR 79).
When imposing punishment the trial court ordered payment of costs of
court. (I CR 74). A Bill of Costs supporting those costs was prepared and reflects
that $300 of the court costs is for attorney fees. (I CR 83). However, the record
does not contain any information that would indicate that the original finding of
indigence had changed or that Mr. Cook had the ability to pay any or all of the
costs for his appointed counsel. (I CR gen.; IV RR gen.) Because no such
evidence exists the trial court erred in imposing attorney’s fees against Mr. Cook.
Barrera v. Sate, 291 S.W.3d 515, 518 (Tex.App.—Amarillo 2009, no pet.).
Alternatively, because the record is not clear as to how the amount ordered
as costs was calculated, it is prayed that the Court remand the case for clarification
as to the basis, if any, for the costs ordered. Specifically, The court costs ordered
paid in the court’s written judgment and withholding order was for an amount of
$289.00. (I CR 74, 75). Although this amount is less than the $300 ordered in
attorney’s fees, the record is unclear as to whether that $289 amount includes any
part of the attorney’s fees or how that amount was otherwise calculated. (Id.). In
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order to ensure that the costs ordered do not include any legally impermissible
costs, and to ensure that Smith County will not wrongfully seek to collect
attorney’s fees against Mr. Cook in the future, the Court should remand the case
for further clarification or order the trial court to submit a new bill of costs
showing the source or sources that form the basis for the $289 ordered.
Conclusion
Given that the record establishes that Mr. Cook was indigent at the time of
trial, and because the record does not establish any support for the conclusion that
that status changed, the Court should reform the trial court’s judgment as to the
assessment of attorney’s fees by deleting the $300 in attorney’s fees ordered or,
alternatively, remand the case for supplemental findings or a supplemental bill of
costs detailing those fees on which the trial court relied in calculating the amount
ordered.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, it is respectfully prayed that
the Court reform the written judgment to omit attorney’s fees.
Respectfully submitted,
/s/ Austin Reeve Jackson
Texas Bar No. 24046139
305 S. Broadway, Suite 700
Tyler, TX 75702
Telephone: (903) 595-6070
Facsimile: (866) 387-0152
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CERTIFICATE OF SERVICE
I certify that a true and correct copy of this brief was delivered to counsel for
the State by efile / facsimile concurrently with its filing in the Court.
/s/Austin Reeve Jackson
CERTIFICATE OF COMPLIANCE
I certify that this document complies with the requirements of Rule 9.4 and
consists of 1,184 words.
/s/ Austin Reeve Jackson
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