Joshua Daniel Ardry v. State ( 2015 )

NO. 12-14-00143-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JOSHUA DANIEL ARDRY, § APPEAL FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Joshua Daniel Ardry appeals his conviction for injury to a child. The trial court sentenced
him to forty years of imprisonment. On appeal, Appellant contends the trial court erred in
imposing attorney’s fees against him. We affirm.
BACKGROUND
Appellant pleaded guilty to the offense of injury to a child pursuant to a plea bargain
agreement. He was placed on deferred adjudication community supervision for ten years. In the
order of deferred adjudication, the trial court assessed a total of $669.00 for court costs without
specifying individual costs. Payment of all court costs, including appointed counsel’s fee, was a
condition of his community supervision. The State later moved to proceed to final adjudication
alleging several violations, none of which was the failure to pay attorney’s fees. Appellant
pleaded true to most of the allegations in the State’s motion. The trial court granted the motion,
revoked Appellant’s community supervision, and sentenced him to forty years of imprisonment.
The court’s initial order adjudicating guilt and the final adjudication of guilt both indicate that the
court did not assess any costs against Appellant. Additionally, the order to withdraw funds
attached to the judgment adjudicating guilt indicates that no costs were assessed against
Appellant.
ATTORNEY’S FEES
In his sole issue, Appellant asserts that the trial court erred in imposing attorney’s fees
after he had been found indigent. He argues that the absence of an allegation by the State that he
did not pay $300.00 for attorney’s fees leads to the conclusion that “Smith County collected $300
from [him] to which legally it was not entitled.” Appellant contends he could not have appealed
from the order to pay attorney’s fees because the bill of costs was not prepared until after he was
placed under supervision and the costs had been paid.
Unless a material change in a criminal defendant’s financial resources is established by
competent legal evidence, once that defendant has been found to be indigent, he is presumed to
remain indigent for the remainder of the proceedings. TEX. CODE CRIM. PROC. ANN. art. 26.04(p)
(West Supp. 2014). Without record evidence demonstrating a defendant’s financial resources to
offset the costs of legal services, a trial court errs if it orders reimbursement of court appointed
attorney’s fees. Williams v. State, 332 S.W.3d 694, 699 (Tex. App.–Amarillo 2011, pet. denied).
However, Appellant must raise this claim in a direct appeal from the initial judgment imposing
community supervision or he forfeits the claim. Riles v. State, 452 S.W.3d 333, 337 (Tex. Crim.
App. 2015).
The record shows that a total of $669.00 for court costs was assessed in the 2011 order of
deferred adjudication. One of the conditions of community supervision was to pay all court costs,
including appointed counsel’s fee, with the first such payment due the month following his
placement on community supervision. Appellant did not appeal from the judgment placing him
on community supervision. Contrary to his assertion, he had enough information to have known
to challenge the order to pay the fee. He did not need to wait for a bill of costs to complain of the
assessment of fees on appeal. Id. Therefore, Appellant has forfeited his complaint that the trial
court erred in assessing attorney’s fees against him in 2011. Id. We overrule Appellant’s sole
issue.
DISPOSITION
Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
BRIAN HOYLE
Justice
Opinion delivered July 8, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
2
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JULY 8, 2015
NO. 12-14-00143-CR
JOSHUA DANIEL ARDRY,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0955-11)
THIS CAUSE came to be heard on the appellate record and the briefs filed
herein; and the same being considered, it is the opinion of this Court that there was no error in
the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that the decision be certified to the court below
for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.