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Billy Joe Waldroup v. State ( 2015 )


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  •                                                                                ACCEPTED
    06-15-00062-CR
    SIXTH COURT OF APPEALS
    TEXARKANA, TEXAS
    7/6/2015 12:29:27 PM
    DEBBIE AUTREY
    CLERK
    No. 06-15-00062-CR
    IN THE COURT OF APPEALS
    FILED IN
    6th COURT OF APPEALS
    FOR THE SIXTH APPELLATE DISTRICT TEXARKANA, TEXAS
    7/6/2015 12:29:27 PM
    __________________________________________________________________
    DEBBIE AUTREY
    Clerk
    BILLY JOE WALDROUP,
    APPELLANT
    V.
    THE STATE OF TEXAS,
    APPELLEE
    __________________________________________________________________
    APPELLANT’S BRIEF
    __________________________________________________________________
    On appeal from Cause No. 44403-B
    in the 124th District Court
    Gregg County, Texas
    __________________________________________________________________
    Robert Lee Cole, Jr.
    409 N. Fredonia Street, Suite 101
    Longview, TX 75601
    SBOT: 04547800
    903-236-6288 Phone
    903-236-5441 Fax
    rcolejd@gmail.com
    Attorney for Appellant
    Oral Argument is Not Requested
    IDENTITY OF PARTIES AND COUNSEL
    Billy Joe Waldroup, Appellant
    Gregg County Jail
    101 E. Methvin Street, Suite 635
    Longview, TX 75601
    Robert L. Cole, Jr.
    Appellant’s Counsel on Appeal
    409 N. Fredonia Street, Suite 101
    Longview, TX 75601
    Craig L. Bass
    Appellant’s Trial Counsel
    440 N. Fredonia Street
    Longview, TX 75601
    Chris Parker
    Trial Prosecutor
    Gregg County District Attorney’s Office
    101 E. Methvin Street, Suite 333
    Longview, TX 75601
    Zan Colson Brown
    Appellate Prosecutor
    Gregg County District Attorney’s Office
    101 E. Methvin Street, Suite 333
    Longview, TX 75601
    Honorable Alfonso Charles
    Presiding Trial Judge
    124th District Court
    101 E. Methvin Street, Suite 447
    Longview, TX 75601
    i
    TABLE OF CONTENTS
    Identity of Parties and Counsel…………………………………………………… i
    Table of Contents…………………………………………………………………. ii
    Index of Authorities….…………………………………………………………... iii
    Statement of the Case…………………………………………………………….. 1
    Statement Regarding Oral Argument…………………………………………….. 1
    Issue Presented…………………………………………………………………… 1
    The trial court erred when it ordered appellant, who was determined to be
    indigent, to pay court appointed attorney’s fees.
    Statement of Facts………………………………………………………………… 2
    Summary of the Argument………………………………………………………... 3
    Argument………………………………………………………………………….. 3
    Prayer……………………………………………………………………………… 5
    Certificate of Compliance…………………………………………………………. 6
    Certificate of Service……………………………………………………………… 6
    ii
    INDEX OF AUTHORITIES
    CASES                                                           PAGE
    Abron v. State, 
    997 S.W.2d 281
    (Tex.App.-Dallas 1998) …………….        5
    Armstrong v. State, 
    340 S.W.3d 759
    , 765-66 (Tex.Crim.App.2011) ….   4
    Bigley v. State, 
    865 S.W. 26
    , 27-28 (Tex.Crim.App. 1993) …………… 4
    Cates v. State, 
    402 S.W.3d 250
    (Tex.Crim.App. 2013) ………………… 
    4 Mart. v
    . State, 
    405 S.W. 35
    944, 946-47 (Tex.App.-Texarkana 2013,
    no pet.). ………………………………………………………………… 4
    CODES, RULES AND CONSTITUTIONAL PROVISISIONS
    Tex. Code Crim.Pro. 26.05g …………………………………………… 3
    Tex.R.App.P. 43.2 ……………………………………………………… 4,5
    iii
    STATEMENT OF THE CASE
    On 4 December 2014, Appellant was charged in Cause No. 44403-B with
    Assault Family Violence by Impeding Breath or Blood, Tex. Penal Code 22.01
    (b)(2)(B), alleged to have occurred on or about 11October 2014. (CR: p. 4).
    Appellant waived his right to a jury and entered a plea of guilty to the charge 23
    March 2015 without the benefit of a plea bargain agreement and the case was
    ordered to be reset for a sentencing hearing. (CR: pp. 11-16) and (RR: Vol 2, pp. 6-
    15). On 15 April 2015 the Trial Court found appellant guilty, and after hearing
    evidence, sentenced Appellant to ten years confinement and further ordered
    appellant to pay all fines and costs, and restitution (CR: pp. 33-34). No motion for
    new trial was filed in this cause. Appellant timely filed his notice of appeal on 20
    April 2015 (CR: p. 37). The Reporter’s record was filed 16 June 2015. Appellant’s
    brief is due on or before 16 July 2015.
    STATEMENT REGARDING ORAL ARGUMENT
    Appellant does not request oral argument.
    ISSUES PRESENTED
    Issue No. 1- The trial court erred when it ordered appellant, who was
    determined to be indigent, to pay court appointed attorney’s fees.
    1
    STATEMENT OF FACTS
    Billy Joe Waldroup, hereinafter referred to as “Waldroup” elected to enter a
    plea of guilty before the trial court on the charge of Assault Family Violence by
    Impeding Breath or Blood (RR: Vol. 2, pp. 6-7). The trial court admonished
    Waldroup as to the consequences of his plea including his waiver of a right to jury
    trial, the range of punishment, and the consequences of entering into an open plea.
    (RR: Vol. 2, pp 7-15).
    At sentencing, the trial court inquired as to whether the case was given to
    continue as an open plea and Waldroup confirmed. (RR: Vol. 3, p. 4). Appellee,
    hereinafter referred to as “The State” rested and Waldroup then presented his case
    with the testimony of Waldroup himself with both direct and cross-examination.
    (RR: Vol. 3, pp.5-28).
    Waldroup’s trial counsel requested the Court to place Waldroup on a period
    of probation (RR: Vol. 3, p.30). The State also gave closing statements (RR: Vol.
    3, 30-32). The State argued that “this could have been enhanced to a 2-to-20 based
    on his prior escape, he’s lucky to walk out of here with 10 years’ TDC, and I don’t
    see why that’s not what should happen to him.” (RR: Vol. 3, p. 32).
    The trial court then sentenced Waldroup 10 years confinement with costs
    assessed to include the repayment of court appointed attorney fees.
    2
    SUMMARY OF THE ARGUMENT
    In the only issue, Appellant complains that the Honorable Judge Alfonso
    Charles improperly assessed court costs in addition to the period of confinement
    despite having previously determined that the defendant was indigent and without
    a finding that Appellant had financial resources that would enable him to offset the
    cash of legal services provided in violation of Texas Code of Criminal Procedure
    Art. 26.05(g).
    ARGUMENT
    In 30 October 2014 the trial court determined that Appellant was indigent
    and appointed counsel to represent him in the trial of this case (CR: pp. 18-19).
    The trial court again appointed counsel to represent Appellant on this appeal (RR:
    Vol. 3, p. 37).
    Texas Code Criminal Procedure Article 26.05 (g) (West Supp. 2014) gives
    authority to a trial court to order the reimbursement of court appointed attorney
    fees only in such a case 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
    3
    provided, including any expenses and costs.”
    There was no mention anywhere during the verbal pronouncement of
    sentence that Appellant had any financial resources at his disposal that enabled him
    to pay his court-appointed attorney fees. (RR: Vol. 4, pp. 32-35). Further, the
    verbal record is silent as to the payment of fines, costs, and court appointed
    attorneys fees.
    The judgment, however, assesses attorney fees of $1062.50 and court costs
    of $314.00 and ordered appellant to “pay all fines, court costs, and restitution as
    indicated above.” (CR: pp. 33-34).
    The assessment for attorney’s fees is unlawful, “because the ability to pay
    are critical elements necessary for a court to order payment for legal services
    provided Armstrong v. State, 
    340 S.W.3d 759
    , 765-66 (Tex. Crim. App. 2011).
    The assessment of attorney’s fees is therefore erroneous and requires removal.
    Cates v. State, 
    402 S.W.3d 250
    (Tex. Crim. App. 2013); Martin v. State, 
    405 S.W.3d 944
    , 946-47 (Tex. App.-Texarkana 2013, no pet.)
    The Texas Rules of Appellate Procedure 43.2 provides many remedies for
    the Court of Appeals. Tex. R. App. P. 43.2(b) provides that the Court of Appeals
    may “modify the trial court’s judgment and affirm it modified. See also Bigley v.
    4
    State, 
    865 S.W.2d 26
    , 27-28 (Tex. Crim. App. 993) and also Abron v. State, 
    997 S.W.2d 281
    (Tex. App.-Dallas 1998). While Tex. R. App. 43.2(d) provides the
    power to “reverse the trial court’s judgment and remand the case for further
    proceedings.
    PRAYER
    Given that the trial court made no determination that Appellant had the
    ability to pay for his appointed counsel fees, appellant prays that this cause be
    reversed and remanded for new sentencing.
    In the alternative, if this Honorable Court elects not to reverse and remand,
    Appellant requests the judgment be modified to remove the amount assessed for
    attorney’s fees.
    Respectfully Submitted,
    /s/ Robert L. Cole, Jr.
    Robert L. Cole, Jr.
    SBOT: 04547800
    409 N. Fredonia, Suite 101
    Longview, TX 75601
    903-236-6288 Phone
    903-236-5441 Fax
    rcolejd@gmail.com
    5
    CERTIFICATE OF COMPLIANCE
    I hereby certify that this computer generated document contains 901 words
    as limited by Texas Rule of Appellate Procedure Rule 9.4.
    /s/ Robert L. Cole, Jr.
    ROBERT L. COLE, JR.
    Counsel for Appellant
    CERTIFICATE OF SERVICE
    I hereby certify that on this the 6th day of July 2015, a copy of the foregoing
    has been hand delivered to the Gregg County District Attorney’s Office, 101 E.
    Methvin Street, Suite 333, Longview, TX 75601 with attention to Zan Colson
    Brown, Attorney for Appellee.
    /s/ Robert L. Cole, Jr.
    ROBERT L. COLE, JR.
    Counsel for Appellant
    6
    

Document Info

Docket Number: 06-15-00062-CR

Filed Date: 7/6/2015

Precedential Status: Precedential

Modified Date: 9/29/2016