Victor Perez v. State ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-12-00451-CR
________________________
VICTOR PEREZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 108th District Court
Potter County, Texas
Trial Court No. 59,609-E; Honorable Douglas R. Woodburn, Presiding
May 23, 2014
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Following the revocation of a prior order deferring an adjudication of guilt,
Appellant, Victor Perez, was found guilty of the first-degree felony offense of aggravated
robbery1 and sentenced to fifteen years confinement. By three issues, he challenges
(1) the final judgment adjudicating his guilt as being erroneous because it describes the
deadly weapon used as a “firearm,” when the indictment alleged the use or exhibition of
a BB gun, (2) the sufficiency of the evidence to sustain attorney’s fees, and (3) the
sufficiency of the evidence to support the assessment of a “Time Payment Fee.” By its
1
TEX. PENAL CODE ANN. § 29.03 (West 2011).
brief, the State agrees with Appellant as to issue one but disagrees as to issues two and
three. We reform the judgment, and as reformed, affirm.
BACKGROUND
On April 16, 2009, Appellant was indicted for the offense of aggravated robbery,
allegedly committed by the use or exhibition of a deadly weapon, namely a BB gun,
while in the course of committing robbery. On May 17, 2011, pursuant to an open plea
without an agreed recommendation on punishment, adjudication was deferred, and he
was placed on community supervision for ten years and assessed a $2,500 fine. Less
than a year later, the State moved to proceed with an adjudication of guilt, alleging
Appellant had committed the new offense of driving while intoxicated. At a hearing on
the State’s motion held October 3, 2012, Appellant entered a plea of true. After hearing
testimony, the trial court found Appellant had violated the terms and conditions of his
community supervision and revoked his deferred adjudication. The trial court then
proceeded to enter a judgment adjudicating Appellant guilty of the deferred offense and
assessed a fifteen-year sentence.
ISSUE ONE
Appellant asserts, and the State agrees, that the Judgment Adjudicating Guilt
incorrectly reflects “YES, A FIREARM” in the summary portion of the judgment under
the heading Findings on Deadly Weapon. The Judgment also inaccurately recites on
page 2 under the heading Furthermore, the following special findings or orders apply:
“The Court finds that the deadly weapon was a firearm.” This Court has the power to
modify the judgment of the court below to make the record speak the truth when we
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have the necessary information to do so. See Ramirez v. State, 336 S.W.3d 846, 852
(Tex. App.—Amarillo 2011, pet. ref'd) (citing Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.
Crim. App. 1993)). See also Cobb v. State, 95 S.W.3d 664, 668 (Tex. App.—Houston
[1st Dist.] 2002, no pet.). Appellate courts have the power to reform whatever the trial
court could have corrected by a judgment nunc pro tunc where the evidence necessary
to correct the judgment appears in the record. Ashberry v. State, 813 S.W.2d 526, 529
(Tex. App.—Dallas 1991, pet. ref'd). Based on the record before us, issue one is
sustained, and we reform the judgment to properly recite in the summary portion “Yes,
Not A Firearm,” and on page 2 to recite “The Court finds that the deadly weapon was
not a firearm.”
ISSUE TWO
By his second issue, Appellant maintains the evidence is insufficient to sustain
the assessment of attorney’s fees in the amount of $100. The Bill of Cost generated
October 5, 2012, two days after Appellant was sentenced, reflects “Attorney Fee(s) -
Original Plea Agreement. CCP 26.05 100.00.” At the time this case was originally
briefed, the Texas Court of Criminal Appeals had not issued its opinion in Wiley v. State,
410 S.W.3d 313 (Tex. Crim. App. 2013), nor had this Court issued its opinion in Riles v.
State, 417 S.W.3d 616 (Tex. App. 2013, pet. granted April 2, 2014). In Wiley, 410
S.W.3d at 320-21, the Court of Criminal Appeals, relying on its decision in Manuel v.
State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999), held the appellant had
procedurally defaulted his claim that the record did not support an order to reimburse
the county for court-appointed attorney’s fees by failing to appeal that particular issue at
the time he was placed on community supervision. In Riley, this Court reached a similar
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conclusion. See also Perez v. State, 424 S.W.3d 81, 85-86 (Tex. Crim. App. 2014)
(holding that failure to appeal from the imposition of deferred adjudication waived any
subsequent challenge to the imposition of court costs assessed in the original
proceeding). Therefore, on the face of the Bill of Costs, Appellant would be
procedurally barred from contesting those fees.
Appellant, however, maintains that the Bill of Costs contains a clerical error and
that the $100 at issue reflects attorney fees actually incurred in connection with the
revocation proceeding.2 Appellant notes that the record contains a Bill of Costs, dated
May 17, 2011, the date of the original proceeding placing Appellant on deferred
adjudication, which provides “Attorney Fees (Court Appointed) [Blank].”
In response, the State questions whether the trial court actually ordered
repayment of court-appointed attorney’s fees because on October 10, 2012, the court
signed an Order to Withdraw Funds reflecting the amount of $70 as the amount of court
costs assessed.3 Assuming the Bill of Costs was in error, the State further contends the
trial court’s order is nevertheless justified because Appellant was represented by
retained counsel throughout most of the underlying proceeding, including the final
revocation hearing. Based on the record, we agree with Appellant that the Bill of Costs
incorrectly reflects that the attorney’s fees were assessed in conjunction with the
original proceeding, and we find those fees were in fact assessed in connection with the
2
In that regard, we note the record does contain an Attorney Fee Voucher signed April 30, 2012,
awarding Mike Watkins the sum of $100. The voucher describes the services rendered in the case as:
“Open file, review DA case file, attempt to locate client - review of new offense.” The State’s Motion to
Proceed With Adjudication of Guilt was filed February 23, 2012, and Watkins was appointed March 21,
2012.
3
In his reply brief in support of his third issue, Appellant refutes that the trial court excluded the
sum of $100 attorney’s fees in the Order to Withdraw Funds.
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revocation proceeding. Accordingly, we find Wiley and Riles to be inapposite, and we
conclude the $100 line item for court-appointed attorney’s fees is properly before this
Court to determine whether Appellant is required to repay them.
It is well established that in order to assess court-appointed attorney’s fees in a
judgment, a trial court must determine that the defendant has financial resources that
enable him to offset in part or in whole the costs of the legal services provided. See
TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2013); Mayer v. State, 309
S.W.3d 552, 555-56 (Tex. Crim. App. 2010). See also TEX. CODE CRIM. PROC. ANN. art.
26.04(m) (West Supp. 2013). Not only must the trial court make a determination
regarding the defendant’s ability to pay, the record must reflect some factual basis to
support that determination. See Wolfe v. State, 377 S.W.3d 141, 144 (Tex. App.—
Amarillo 2012, no pet.). Additionally, a defendant who is found to be indigent is
presumed to remain indigent for the remainder of the proceedings unless a material
change in the defendant’s financial circumstances occurs. If a material change occurs,
the State may move for reconsideration of the defendant’s financial status. See TEX.
CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2013).
Here, the State’s argument that Appellant is liable for court-appointed attorney’s
fees because he was ultimately represented by retained counsel in the original
proceeding does not satisfy the requirement of establishing a “material change in the
defendant’s financial circumstances” in the revocation proceeding. The record before
us does not reflect a factual basis to support a determination that Appellant himself paid
for his retained counsel or had the present financial resources to offset the cost of his
legal representation. To the contrary, the presumption that Appellant is indigent is
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supported by the trial court’s order granting him a free appellate record based on his
most recent financial information form. Additionally, the State did not move to
reconsider Appellant’s financial status. Under these circumstances, we decline to hold
that a defendant’s use of retained counsel preempts his indigent status. Issue two is
sustained.
ISSUE THREE
By his third issue, Appellant contends the evidence is insufficient to support a
“Time Payment Fee” of $25. We disagree.
In his brief, Appellant describes this issue as an issue of “first impression.”
However, since he filed his brief, at least one appellate court has written on the merits of
the time payment fee. See Davis v. State, No. 04-13-00413-CR, 2013 Tex. App. LEXIS
13659, at *2 (Tex. App.—San Antonio Nov. 6, 2013, no pet.) (mem. op., not designated
for publication).
Section 133.103(a) of the Texas Local Government Code (West Supp. 2013)
mandates that a person convicted of a felony shall pay a $25 fee if that person pays any
part of a fine, court costs or restitution on or after the 31st day after the date on which
judgment was entered. In the underlying case, judgment was entered on October 3,
2012, and the 31st day fell on Saturday, November 3, 2012. The Bill of Costs dated
October 5, 2012, shows a total balance of $420 in costs and fees. Once the sum of
$100 for improperly assessed court-appointed attorney’s fees is deducted, the correct
total would be $320. The Bill of Costs also shows a payment of $250, therefore there
remains a balance of $70.
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Appellant argues that because 31 days had not passed since the judgment was
entered, and he could have paid the balance within that 31 day period, the record does
not support assessment of the $25 time payment fee. In his reply brief, he asserts the
Order to Withdraw Funds signed a week after judgment “entails deleting the premature
Time Payment Fee and refunding the appellant $55 . . . .” Appellant’s argument
presupposes he would have paid the entire balance within the time allotted by section
133.103(a)(2). The record clearly does not support his argument. Accordingly, we
conclude the $25 time payment fee was properly assessed. See Davis, 2013 Tex. App.
LEXIS 13659, at *2. Furthermore, because the time payment fee is a legislatively
mandated court cost, it is not subject to an evidentiary sufficiency challenge. Johnson
v. State, 423 S.W.3d 385, 389-390 (Tex. Crim. App. 2014). Issue three is overruled.
CONCLUSION
We reform the Judgment Adjudicating Guilt to show under Findings on Deadly
Weapon “Yes, Not A Firearm.” We also reform page 2 of the judgment to recite under
the heading Furthermore, the following special findings or orders apply: “The Court
finds that the deadly weapon was not a firearm.” The Bill of Costs generated on
October 5, 2012, is reformed to delete the amount of $100 for court-appointed
attorney’s fees. Because the Order to Withdraw Funds signed on October 10th reflects
the correct balance of $70, it need not be corrected. As reformed, the trial court’s
Judgment Adjudicating Guilt is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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