Brandon Simmons v. State ( 2015 )

ACCEPTED
12-14-00159-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
1/7/2015 8:28:26 PM
CATHY LUSK
CLERK
ORAL ARGUMENT NOT REQUESTED
NO. 12-14-00159-CR FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
IN THE COURT OF APPEALS 1/7/2015 8:28:26 PM
12TH JUDICIAL DISTRICT CATHY S. LUSK
Clerk
TYLER, TEXAS
BRANDON SIMMONS,
APPELLANT
VS.
THE STATE OF TEXAS,
APPELLEE
ON APPEAL IN CAUSE NUMBER 114-0139-10
FROM THE 114th JUDICIAL DISTRICT COURT
OF SMITH COUNTY, TEXAS
HONORABLE CHRISTI KENNEDY, JUDGE PRESIDING
APPELLANT’S BRIEF
JAMES W. HUGGLER, JR.
100 E. FERGUSON, SUITE 805
TYLER, TEXAS 75702
903-593-2400
STATE BAR NUMBER 00795437
ATTORNEY FOR APPELLANT
IDENTITY OF PARTIES AND COUNSEL
APPELLANT:
Brandon Simmons
APPELLANT’S TRIAL COUNSEL
LaJuanda Lacy
2419 Cecil
Tyler, Texas 75702
903-592-8335
Brent Ratekin
422 South Spring
Tyler, Texas 75702
903-595-1516
Melvin Thompson
2108 South Wall
Tyler, Texas 75701
903-596-7856
APPELLANT’S APPELLATE COUNSEL
James Huggler
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
903-593-3830 (fax)
APPELLEE
The State of Texas
APPELLEE’S TRIAL COUNSEL
Whitney Boatright Tharpe
Chris Gatewood
Jacob Putman
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
ii
Tyler, Texas 75702
903-590-1720
903-590-1719 (fax)
APPELLEE’S APPELLATE COUNSEL
Michael West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
903-590-1720
903-590-1719 (fax)
iii
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ISSUE ONE: The trial court erred in imposing attorney fees
following a finding that Mr. Simmons was indigent and was
appointed counsel.
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ISSUE ONE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. Law on Attorney Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
B. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
C. Application to These Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
D. Remedy and Relief Requested.. . . . . . . . . . . . . . . . . . . . . . . . . 11
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
iv
TABLE OF AUTHORITIES
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West 2009).. . . . . . . . . . . . . 5
TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West 2009). . . . . . . . . . . . . . 5
TEX. CODE CRIM. PROC. ANN. art. 103.001 (West 2009). . . . . . . . . . . . . . 6
TEX. GOV’T CODE ANN. §§ 102.001-.142 (West 2009). . . . . . . . . . . . . . . . 6
TEX. GOV’T CODE ANN. § 102.021 (West 2009). . . . . . . . . . . . . . . . . . . . . 6
TEX. GOV’T CODE ANN. § 103.006 (West 2009). . . . . . . . . . . . . . . . . . . . . 7
TEX. HEALTH & SAFETY CODE ANN. §481.115 (a) and (c) (West 2009). 2, 3
TEX. PENAL CODE ANN. § 12.42(a)(3) (West 2009). . . . . . . . . . . . . . . . 2, 3
CASES
Armstrong v. State, 340 S.W.3d 759 (Tex. Crim. App. 2011). . . . . . . 6, 7
Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005).. . . . . . . . 8
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). . . . . 7, 8
Johnson v. State, 405 S.W.3d 350, 354 (Tex. App. – Tyler
2013, no pet). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8
Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010). . . . . . . 5, 8
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991). . . . 8
Owen v. State, 352 S.W.3d 542, 5148 (Tex. App. – Amarillo
2011, no pet). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7
Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009). . . . . . . . . . 6
Will. v. State, 332 S.W.3d 694, 699 (Tex. App. – Amarillo
2011, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
v
RULES
TEX. R. APP. PROC. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
TEX. R. APP. PROC. 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
vi
NO. 12-14-00159-CR
BRANDON SIMMONS § IN THE COURT OF APPEALS
APPELLANT §
§
VS. § 12TH JUDICIAL DISTRICT
§
THE STATE OF TEXAS, §
APPELLEE § TYLER, TEXAS
APPELLANT’S BRIEF
TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES
THEREOF:
Comes now Brandon Simmons, (“Appellant”), by and through his
attorney of record, James Huggler, and pursuant to the provisions of TEX.
R. APP. PROC. 38, et seq., respectfully submits this brief on appeal.
STATEMENT OF THE CASE
Appellant was indicted in Cause Number 114-0139-105 for the third
degree felony offense of possession of a controlled substance. I CR 31; see
1
References to the Clerk’s Record are designated “CR” with a roman numeral preceding
“CR” indicating the correct volume and an arabic numeral following “CR” specifying the correct
1
TEX. HEALTH & SAFETY CODE ANN. §481.115(a) and (c) (West 2009). The
punishment range was enhanced to that of a second degree felony with the
inclusion of a prior felony conviction. I CR 3; TEX. PENAL CODE ANN.
§12.42(a)(3) (West 2009). Mr. Simmons entered a plea of guilty pursuant
to an agreement and received probation. I RR 13; II RR 5, 9-102.
The State filed a motion to revoke his probation, Mr. Simmons
entered true pleas to the allegations. I CR 72-73, 83; VI RR 11. Following
evidence and argument of counsel, the court sentenced Mr. Simmons to
eight years confinement. I CR 84-85; VI RR 22. Notice of appeal was
timely filed in on June 18, 2014. I CR 87. This Brief is timely filed on or
before January 7, 2015 following proper extension granted by this Court.
page in the record.
2
References to the Reporter’s Record are designated “RR” with a roman numeral
preceding “RR” indicating the correct volume, and an arabic numeral following “RR” specifying
the correct page.
2
ISSUE PRESENTED
ISSUE ONE: THE TRIAL COURT ERRED IN IMPOSING ATTORNEY
FEES FOLLOWING A FINDING THAT MR. SIMMONS WAS
INDIGENT AND WAS APPOINTED COUNSEL.
STATEMENT OF THE FACTS
Appellant was indicted in Cause Number 114-0139-105 for the third
degree felony offense of possession of a controlled substance, specifically
methamphetamine in an amount between one and four grams. I CR 3; see
TEX. HEALTH & SAFETY CODE ANN. §481.115(a) and (c) (West 2009). The
punishment range was enhanced to that of a second degree felony with the
inclusion of a prior felony conviction. I CR 3; TEX. PENAL CODE ANN.
§12.42(a)(3) (West 2009). Mr. Simmons entered a plea of guilty pursuant
to an agreement and received probation. I RR 13; II RR 5, 9-10.
Mr. Simmons was placed in the Substance Abuse Felony
Punishment Facility and successfully completed probation. I CR 54-57,
59-61. Conditions of his probation were modified allowing work and
status hearings were held regarding an apparent invalid arrest and
driving with a suspended license.
3
The State filed a motion to revoke his probation alleging a use of
marijuana. I CR 72-73. Mr. Simmons entered true pleas to the
allegations. I CR 72-73, 83; VI RR 11. Following evidence and argument
of counsel, the court sentenced Mr. Simmons to eight years confinement.
I CR 84-85; VI RR 22. Further discussion of relevant facts is included
below.
SUMMARY OF ARGUMENT
The error for this Court to consider involves the improper
assessment of court costs. The trial court improperly ordered
reimbursement of attorney fees after Mr. Simmons was found to be
indigent and was appointed counsel. The attorney fees were included in
the judgment placing him on probation, and were collected. Because there
was never any allegation that Mr. Simmons failed to pay any required fees
or costs, Smith County collected $300 from Mr. Simmons to which legally
it was not entitled.
4
ARGUMENT
ISSUE TWO, RESTATED: THE TRIAL COURT ERRED IN IMPOSING
ATTORNEY FEES FOLLOWING A FINDING THAT MR. SIMMONS
WAS INDIGENT AND WAS APPOINTED COUNSEL.
A. Law on Attorney’s Fees
A trial court has the authority to assess attorney’s fees against a
criminal defendant who received court-appointed counsel. TEX. CODE
CRIM. PROC. ANN. art. 26.05(g)(West 2009). Once a defendant has been
determined to be indigent, he is presumed to remain indigent for the
remainder of the proceedings unless a material change in his financial
circumstances occurs. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West
2009). Before attorney’s fees may be imposed, the trial court must make
a determination supported by some factual basis in the record that the
defendant has financial resources to enable him to offset in whole or in
part the costs of the legal services provided. Johnson v. State, 405 S.W.3d
350, 354 (Tex. App. – Tyler 2013, no pet). If the record does not show any
material change in the defendant’s financial circumstances, the evidence
will be insufficient to support the imposition of attorney’s fees. TEX. CODE
CRIM. PROC. ANN. art. 26.04(p); Mayer v. State, 309 S.W.3d 552, 553, 557
5
(Tex. Crim. App. 2013).
Court costs are pre-determined, legislatively-mandated obligations
resulting from a conviction. See, e.g., TEX. GOV'T CODE ANN. §§
102.001-.142 (West 2009) (setting forth various court costs that a
convicted person "shall" pay). A sentencing court shall impose the
statutory court costs at the time a defendant is sentenced. Armstrong v.
State, 340 S.W.3d 759 (Tex. Crim. App. 2011); TEX. GOV’T CODE ANN.
§102.021 (West 2009). Court costs are not punitive in nature and do not
have to be included in an oral pronouncement of a sentence. Weir v.
State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009).
A cost is not payable by the person charged with the cost until a
written bill is produced or is ready to be produced, containing the items
of cost, signed by the officer who charged the cost or the officer who is
entitled to receive payment of the cost. TEX. CODE CRIM. PROC. ANN. art.
103.001 (West 2009). The clerk of the trial court is required to keep a fee
record, and a statement of an item therein is prima facie evidence of the
correctness of the statement. Owen v. State, 352 S.W.3d 542, 548 (Tex.
App.—Amarillo 2011, no pet.) (citing TEX.CODE CRIM. PROC. ANN. art.
103.009(a), (c)). Until a certified bill of costs has been made part of the
6
record, a defendant has no obligation to pay court costs. Owen, 352
S.W.3d at 547 (citing Armstrong, 340 S.W.3d at 765; Williams v. State,
332 S.W.3d 694, 699 (Tex. App. – Amarillo 2011, pet. denied). In this case,
the only bill of costs ever prepared to support any amount of court costs
was prepared on June 19, 2014, more than four years after the attorney
fee was assessed. I CR 98, 46-47.
If a criminal action is appealed, "an officer of the court shall certify
and sign a bill of costs stating the costs that have accrued and send the
bill of costs to the court to which the action or proceeding is transferred or
appealed." TEX. CODE CRIM. PROC. ANN. art. 103.006 (West 2009).
B. Standard of Review
The imposition of court costs upon a criminal defendant is a
“nonpunitive recoupment of the costs of judicial resources expended in
connection with the trial of the case.” Johnson v. State, 423 S.W.3d 385,
390 (Tex. Crim. App. 2014). When the imposition of court costs is
challenged on appeal, the court reviews the assessment of costs to
determine if there is a basis for the cost, not to determine if there is
7
sufficient evidence offered at trial to prove each cost. Johnson, 423 S.W.3d
at 390.
The standard for reviewing a legal sufficiency challenge is whether
any rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. at
315-16, 99 S. Ct. at 2786-787; see also Mayer v. State, 309 S.W.3d 552,
557 (Tex. Crim. App. 2010)(sufficiency review of evidence to support order
of repayment of attorney fees as costs).
A challenge to a withdrawal of funds notification is reviewed for an
abuse of discretion. Williams, 332 S.W.3d at 698. A trial court abuses
its discretion when it acts “without reference to any guiding rules and
principles. Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005);
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991). The
reviewing court may modify a withdrawal order on direct appeal if the
evidence is insufficient to support the assessment of court costs. Johnson
v. State, 405 S.W.3d at 355.
8
C. Application to These Facts
Mr. Simmons has been represented at all times following the initial
trial of the case by appointed counsel. The record contains three different
orders appointing counsel. I CR 77, 80. Each pauper’s oath application
contains a finding that Mr. Simmons was indigent. I CR 78-79; II CR 16-
17. Mr. Simmons was represented at various times in the course of this
case by each of the three trial attorneys contracted to provide indigent
defense in the 114th District Court. Finally, appellate counsel was
appointed for this appeal. I CR 80. A motion was filed with the trial court
seeking a free reporter’s record on appeal. I CR 91-93. This motion was
granted by the trial court without opposition from the State of Texas. I
CR 94.
The June 2, 2010 judgment and order placing Mr. Simmons on
probation included an assessment of $580.00 in court costs. I CR 46-47,
49, line 21. This amount exactly exceeds the bill of costs prepared more
than four years later by $300.00. I CR 98. The final judgment signed July
16, 2014 reflects a zero balance for court costs, as doers the bill of costs.
I CR 84 and 98.
9
Each item listed on the bill of costs appear to be properly assessed
costs. I CR 98. The properly assessed costs equal $280.00 in court costs.
However, Smith County collected $580. As this Court is aware from
dozens of other cases, some district courts have routinely assessed a $300
fee for costs of an attorney appointed after a finding that a defendant is
indigent.
There is no evidence to contest the finding that Mr. Simmons was
found indigent. Assessment of attorney’s fees following a finding of
indigence is improper. While the final judgment does not include the
attorney’s fee, judgment placing him on community supervision does, and
there was no allegation that Mr. Simmons ever failed to make required
financial payments. Why the bill of costs does not contain the fee which
was assessed four years previously is not known, but it is certainly
reasonable to conclude that this particular trial court has learned from the
number of cases modified on this issue not to assess the $300 fee for
attorney costs.
10
D. Remedy and Relief Requested
The fee seeking reimbursement for the appointed attorney was
improperly assessed by the court. The original judgment should be
modified to reflect the true amount of court costs as assessed in the bill of
costs and the $300 should be ordered to be returned to Mr. Simmons.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Counsel respectfully
prays that this Court modify the judgment of the trial court and order
Smith County to reimburse Mr. Simmons the improperly assessed $300
.
Respectfully submitted,
/s/ James Huggler
James W. Huggler, Jr.
State Bar Number 00795437
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
903-593-3830 fax
ATTORNEY FOR APPELLANT
11
CERTIFICATE OF SERVICE
A true and correct copy of the foregoing Brief of the Appellant has been
forwarded to counsel for the State by electronic filing on this the 7th day
of January, 2015.
/s/ James Huggler
James W. Huggler, Jr.
Attorney for the State:
Mr. Michael West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
CERTIFICATE OF COMPLIANCE
I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 2,484 words as counted by
Corel WordPerfect version x5.
/s/ James Huggler
James Huggler
12