Justin Wade Ragan v. State ( 2014 )


Menu:
  •                                       In The
    Court of Appeals
    Seventh District of Texas at Amarillo
    ________________________
    No. 07-13-00131-CR
    ________________________
    JUSTIN WADE RAGAN, APPELLANT
    V.
    THE STATE OF TEXAS, APPELLEE
    On Appeal from the 355th District Court
    Hood County, Texas
    Trial Court No. CR12258; Honorable Ralph H. Walton, Jr., Presiding
    September 11, 2014
    MEMORANDUM OPINION
    Before CAMPBELL and HANCOCK and PIRTLE, JJ.
    In August 2012, Appellant, Justin Wade Ragan, was indicted for capital murder.1
    The State chose not to seek the death penalty, and following a three-day jury trial,
    Appellant was found guilty and sentenced to life without parole.2 In presenting this
    1
    TEX. PENAL CODE ANN. § 19.03 (West Supp. 2014).
    2
    TEX. PENAL CODE ANN. § 12.31(a)(2) (West Supp. 2014).
    appeal, counsel has filed an Anders3 brief in support of a motion to withdraw. We grant
    counsel’s motion, modify the judgment in part and, as modified, affirm the judgment.
    BACKGROUND
    This prosecution arises out of a homicide by gunshot that occurred during the
    course of a robbery in a bar located in Grandbury, Texas, on January 17, 2012.
    Appellant was linked to the homicide by physical evidence.                    Additionally, Appellant
    confessed to the shooting. Twice, to two separate civilian witnesses, who testified at
    trial, and also to law enforcement officials in a recorded statement that was admitted
    during trial and played for the jury. Although Appellant did not testify, his defensive
    theory was that the shooting occurred as the result of an accidental discharge of the
    firearm. At the conclusion of the evidence, the trial court presented its charge to the
    jury. The Charge of the Court included capital murder as charged in the indictment, as
    well as the lesser included offense of murder. The jury returned a verdict of guilty as to
    the offense of capital murder and this appeal followed.
    MOTION TO WITHDRAW
    In support of his motion to withdraw, counsel addresses potential issues
    concerning a motion to suppress Appellant’s inculpatory statements, jury selection,
    evidentiary objections and sufficiency of the evidence, before he candidly certifies he
    has diligently reviewed the record, and, in his opinion, the record reflects no reversible
    error upon which an appeal can be predicated. Anders v. California, 
    386 U.S. 738
    , 744-
    3
    Anders v. California, 
    386 U.S. 738
    , 
    87 S. Ct. 1396
    , 
    18 L. Ed. 2d 493
    (1967).
    2
    45, 
    87 S. Ct. 1396
    , 
    18 L. Ed. 2d 493
    (1987); Monroe v. State, 
    671 S.W.2d 583
    , 585 (Tex.
    App.—San Antonio 1984, no pet.). Thus, he concludes the appeal is frivolous.
    Counsel candidly discusses why, under the controlling authorities, there is no
    error in the court’s judgment. See High v. State, 
    573 S.W.2d 807
    , 813 (Tex. Crim. App.
    1978). He also shows he sent a copy of his brief to Appellant and informed Appellant
    that, in his view, the appeal is without merit.      Counsel demonstrates he notified
    Appellant of his right to review the record and file a pro se response if he desired to do
    so. Furthermore, the Clerk of this Court also advised Appellant by letter of his right to
    file a response to counsel’s brief. Appellant did not file a response. The State elected
    not to file a brief.
    We have independently examined the entire record to determine whether there
    are any non-frivolous grounds which might support the appeal. See Penson v. Ohio,
    
    488 U.S. 75
    , 80, 
    109 S. Ct. 346
    , 
    102 L. Ed. 2d 300
    (1988); Stafford v. State, 
    813 S.W.2d 503
    , 511 (Tex. Crim. App. 1991). We have found no such grounds. After reviewing the
    record and counsel’s brief, we agree with counsel that the appeal is frivolous. See
    Bledsoe v. State, 
    178 S.W.3d 824
    , 827-28 (Tex. Crim. App. 2005).
    ATTORNEY’S FEES
    In our review of the record, we noticed the judgment assessed $16,966.41 in
    “Court Costs” against Appellant. The Bill of Costs provided by the District Court Clerk
    indicates that $519.00 was for actual court costs and $16,447.41 was for court-
    appointed attorney’s fees.    There is no evidence of record indicating there was a
    change in Appellant’s status as an indigent since being indicted. To the contrary, for
    3
    purposes of this appeal, the trial court found Appellant indigent and appellate counsel
    was appointed to represent him.
    Once a criminal defendant has been found to be indigent, he is presumed to
    remain indigent for the remainder of the proceedings until a material change in a
    defendant’s financial resources occurs. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p)
    (West Supp. 2014). Further, in order to assess attorney’s fees in a judgment, a trial
    court must first determine the defendant has the financial resources that enable him to
    offset in part or in whole the costs of legal services provided. See 
    id. at art.
    26.05(g)
    (West Supp. 2014). See also Mayer v. State, 
    309 S.W.3d 552
    , 555-56 (Tex. Crim. App.
    2010).    Additionally, the record must reflect some factual basis to support the trial
    court’s determination. See Barrera v. State, 
    291 S.W.3d 515
    , 518 (Tex. App.—Amarillo
    2009, no pet.); Perez v. State, 
    280 S.W.3d 886
    , 887 (Tex. App.—Amarillo 2009, no
    pet.). This did not occur here. Instead, Appellant’s indigent status continued to his
    appeal.
    No objection is required to challenge the sufficiency of the evidence regarding a
    defendant’s ability to pay court-appointed attorney’s fees, 
    Mayer, 309 S.W.3d at 556
    ,
    and the proper remedy is to delete the court-appointed attorney’s fees from the Bill of
    Costs and any ensuing order permitting withdrawals from Appellant’s inmate account.
    Cates v. State, 
    402 S.W.3d 250
    , 251-52 (Tex. Crim. App. 2013).           Accordingly, the
    judgment is modified to reflect $519.00 in court costs, and the District Clerk is ordered
    to prepare an amended Bill of Costs.
    4
    Counsel’s motion to withdraw is granted and the trial court’s judgment is affirmed
    as modified.4
    Patrick A. Pirtle
    Justice
    Do not publish.
    4
    In granting counsel’s motion to withdraw, we remind him of his “educational” duty to inform
    Appellant of this Court’s decision and of his right to file a pro se petition for discretionary review in the
    Criminal Court of Appeals, Ex parte Owens, 
    206 S.W.3d 670
    , 673-74 (Tex. Crim. App. 2006).
    5
    

Document Info

Docket Number: 07-13-00131-CR

Filed Date: 9/11/2014

Precedential Status: Precedential

Modified Date: 10/16/2015