Gareth Jabar Richards v. State , 2013 Tex. App. LEXIS 14302 ( 2013 )

IN THE
TENTH COURT OF APPEALS
No. 10-12-00252-CR
GARETH JABAR RICHARDS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2011-935-C2
OPINION
In one issue, appellant, Gareth Jabar Richards, argues that the trial court abused
its discretion by requiring him to pay court-appointed attorney’s fees assessed in a
deferred-adjudication order. We affirm.
I. BACKGROUND
On April 6, 2011, appellant was charged by indictment with a state-jail felony—
unlawful possession of a controlled substance, marihuana, in an amount greater than
four ounces but less than five pounds. See TEX. HEALTH & SAFETY CODE ANN. §
481.121(a), (b)(3) (West 2010). Appellant subsequently filed a request for a court-
appointed attorney. The trial court concluded that appellant was indigent and
appointed him counsel.
Thereafter, appellant entered into a plea agreement with the State. In exchange
for pleading guilty to the charged offense, the State recommended that appellant be
placed on community supervision and pay a $1,000 fine. The trial court accepted the
plea agreement, deferred an adjudication of guilt, and placed appellant on community
supervision for four years with a $1,000 fine.1 Furthermore, after receiving
admonishments from the trial court, appellant executed an express written waiver of
appeal with regard to the deferred-adjudication order. In addition, the trial court
signed a certification of appellant’s right of appeal, wherein the trial court indicated that
appellant had waived his right of appeal. Consequently, appellant did not pursue an
appeal at that time. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 23(b) (West Supp.
2012) (“The right of the defendant to appeal for a review of the conviction and
punishment, as provided by law, shall be accorded the defendant at the time he is
placed on community supervision.”).
However, in the deferred-adjudication order, the trial court assessed $856 in
court costs. The bill of costs attached to the order indicates that the court costs included
$400 in court-appointed attorney’s fees. Condition 16 of the deferred-adjudication
order required appellant to pay these court costs at a rate of $25 per month.
1Appellant was also ordered “to pay restitution to the Texas DPS Lab in the amount of $140.00;
and 12.45 unfiled prohibited substance in correction[a]l facility.”
Richards v. State Page 2
On May 29, 2012, the State filed a motion to adjudicate guilt, alleging fourteen
violations. Once again, the trial court determined appellant to be indigent and
appointed him counsel. At the hearing on the State’s motion to adjudicate guilt,
appellant pleaded “true” to eleven of the violations alleged in the State’s motion. At the
conclusion of the hearing, the trial court: (1) concluded that appellant had violated the
terms and conditions of his community supervision; (2) found appellant guilty of the
underlying offense; and (3) assessed punishment at twenty-four months’ confinement
in the State-Jail Division of the Texas Department of Criminal Justice with a $1,000 fine.
The trial court also assessed court costs of $1,361, which included the $400 in court-
appointed attorney’s fees previously assessed in the deferred-adjudication order and an
additional $500 in court-appointed attorney’s fees for the adjudication proceeding. The
trial court certified appellant’s right of appeal, and appellant subsequently filed his
notice of appeal on July 6, 2012.
One month later, on August 6, 2012, appellant filed a motion for judgment nunc
pro tunc in the trial court, complaining about the assessment of court-appointed
attorney’s fees. The trial court ostensibly granted appellant’s motion by signing a
judgment nunc pro tunc, which reflected an elimination of the $500 in court-appointed
attorney’s fees assessed for the adjudication hearing. However, the amended bill of
costs still reflected the $400 in court-appointed attorney’s fees assessed in the deferred-
adjudication order. It is the assessment of $400 in court-appointed attorney’s fees from
which appellant now appeals.
Richards v. State Page 3
II. ANALYSIS
In his sole issue on appeal, appellant contends that the evidence is insufficient to
prove that his financial circumstances changed during the pendency of the proceedings.
Accordingly, the trial court abused its discretion by requiring him to pay his court-
appointed attorney’s fees in the deferred-adjudication order. The Texas Court of
Criminal Appeals recently resolved this precise issue in Wiley v. State, No. PD-1728-12,
2013 Tex. Crim. App. LEXIS 1464 (Tex. Crim. App. Sept. 25, 2013).
In Wiley, the court concluded that a defendant procedurally defaults on his claim
that the record does not support the trial court’s assessment of court-appointed
attorney’s fees during the initial guilty-plea proceedings when he fails to bring a direct
appeal from the initial judgment. See id. at **21-23. Specifically, the Wiley court noted
the following:
The reimbursement of attorney fees was not imposed upon the appellant
only as a condition of community supervision. On authority of Article
26.05(g) of the Code of Criminal Procedure, the judgment independently
imposed an obligation to repay attorney fees—“as court costs.” That one
of the conditions of community supervision also made the fulfillment of
that obligation necessary if the appellant wanted to maintain his status as
probationer does not mean that he was not otherwise obliged to do it in
satisfaction of the judgment. In this respect, the requirement to pay court
costs was not comparable to that sort of conditions of community
supervision that the appellant invokes, such as reporting regularly to a
probation officer, submitting to drug testing, or satisfying community
service requirements.
....
The requirement that the appellant pay court costs did not exist
solely as a function of the probationary contract between the appellant
and the trial court. Because the obligation to pay attorney fees was
already imposed by the judgment as a court cost, a reviewing court may
Richards v. State Page 4
treat it for purposes of appeal as it would treat any other judgment
obligation for purposes of an evidentiary sufficiency claim; that is, a
reviewing court may inquire whether the record rationally supports that
obligation even in the absence of an objection in the trial court. In short,
Mayer, not Speth, controls.
....
But this also necessarily means that the appellant could readily
have raised this sufficiency claim in a direct appeal from the initial
judgment imposing community supervision. Failing to do so, we hold,
constituted a procedural default under Manuel. The record in this case
shows that the appellant was well aware of the existence and the amount
of the attorney fees that were imposed for his court appointed
representation during the plea proceedings. The bill of costs was dated
the same day as the judgment imposing community supervision and was,
by the terms of the judgment itself—as indicated in bold capital letters—
attached. By his signature, the appellant expressly acknowledged having
read and understood the conditions of community supervision. Under
these circumstances, the presumption of regularity applies, and we must
conclude that the appellant was aware of the requirement that he pay
court costs, including the cost of court appointed attorney fees, even as of
the time he signed the judgment. He would therefore have known to
challenge the sufficiency of the evidence to support this requirement as of
the time of any direct appeal from that judgment.
Instead of doing so, he waived his right to appeal, though not
required to do so by the terms of any negotiation with the State.
Whatever else could be said about such a waiver of appeal, it was
certainly executed knowingly with respect to any possible claim that the
record did not support the assessment of attorney fees. That he chose to
forego that appeal must work as a forfeiture of the claim, and he may not,
consistent with our case law, attempt to resuscitate it in a later appeal
from the revocation of his community supervision.
Id. at **19-23 (internal citations & footnotes omitted) (emphasis in original).
The fact scenario in the instant case is virtually identical to that in Wiley. Here,
the deferred-adjudication order, signed on September 13, 2011, assessed court costs at
$856. Condition 16 of the deferred-adjudication order directs appellant to “SEE THE
Richards v. State Page 5
ATTACHED BILL OF COSTS” (emphasis in original). The bill of costs, which was
dated the same day as the judgment imposing community supervision and assessing
the court costs, reflected that appellant is obligated to pay as court costs $400 in court-
appointed attorney’s fees. Appellant chose not to appeal the deferred-adjudication
order. Instead, on the same day as the judgment was signed and the bill of costs was
produced, appellant executed an express written waiver of appeal with respect to the
deferred-adjudication order, though he was not required to do so by the terms of any
negotiation with the State. Only after his community supervision was revoked did
appellant choose to appeal the trial court’s assessment of court-appointed attorney’s
fees in the deferred-adjudication order.
Like Wiley, “[u]nder these circumstances, the presumption of regularity applies,
and we must conclude that the appellant was aware of the requirement that he pay
court costs, including the cost of court appointed attorney fees, even as of the time he
signed the judgment.” Id. at *22 (citing Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim.
App. 1984) (“[T]his Court will indulge every presumption in favor of the regularity of
documents in the trial court. This means that the recitations in the records of the trial
court, such as a formal judgment, are binding in the absence of direct proof of their
falsity.”)). Accordingly, appellant should have known “to challenge the sufficiency of
the evidence to support this requirement as of the time of any direct appeal from that
judgment.” Id. Appellant chose not to do so; instead, he waived his right to appeal the
deferred-adjudication order. Accordingly, like Wiley, we conclude that appellant
procedurally defaulted his claim about the assessment of court-appointed attorney’s
Richards v. State Page 6
fees in the deferred-adjudication order and may not “attempt to resuscitate it in a later
appeal from the revocation of his community supervision.” Id. at **22-23 (citing Manuel
v. State, 994 S.W.2d 658, 661 (Tex. Crim. App. 1999)). We therefore overrule appellant’s
sole issue on appeal.
III. CONCLUSION
Having overruled appellant’s sole issue on appeal, we affirm the judgment of the
trial court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed November 21, 2013
Publish
[CR25]
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