Freddie James Lewis v. State ( 2012 )

Opinion issued December 6, 2012
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00076-CR
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FREDDIE LEWIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 19th District Court
McLennan County, Texas
Trial Court Case No. 2008–1089–C1
MEMORANDUM OPINION
The jury found appellant Freddie Lewis guilty of aggravated robbery with a
deadly weapon.1 After appellant pleaded true to two felony enhancement
allegations, the jury assessed appellant’s punishment at 55 years in prison and a
$500 fine.
1
See TEX. PENAL CODE ANN. § 29.03(a)(2) (Vernon 2011).
Appellant presents two issues on appeal.2 Appellant contends that the trial
court erred by requiring him to pay the fees for the counsel, investigator, and
interpreter appointed by the trial court. Appellant also asserts that the trial court
erred in allowing the district attorney to prosecute the case because he had been
appointed to represent appellant earlier in the proceedings.
We affirm the judgment, as modified.
Background Summary
Appellant was indicted for the first-degree felony offense of aggravated
robbery with a deadly weapon. The State filed its notice of intent to seek enhanced
punishment based on appellant’s two prior felony convictions.
Throughout the proceedings, the trial court determined appellant to be
indigent and appointed counsel to represent him. In June 2009, and again in
November 2009, the trial court determined appellant was incompetent to stand
trial. Appellant was committed to a mental health facility for treatment. In June
2011, the trial court found that appellant had been “returned to competency” and
could stand trial.
The case was tried to a jury in December 2011. The jury found appellant
guilty of aggravated robbery with a deadly weapon. Appellant pleaded true to two
2
This appeal, originally filed in the Tenth Court of Appeals, Waco, Texas, was
transferred to the First Court of Appeals, Houston, Texas. See TEX. GOV’T CODE
ANN. § 73.001 (Vernon 2005).
2
felony enhancement allegations. The jury assessed his punishment at 55 years in
prison and a $500 fine. The trial court order appellant to pay court costs totaling
$3,300. Appellant now appeals the judgment, raising two issues.
Court Costs
In his first issue, appellant contends that “[t]he trial court erred in requiring
[appellant] to pay costs for court appointed counsel, investigator, and interpreter
fees” because the court had determined appellant to be indigent. The judgment of
conviction orders appellant to pay court costs totaling $3,030. The bill of costs
reflects that this figure includes $1,575.00 for court appointed attorney’s fees, $400
for a court appointed interpreter, and $750 for a court appointed investigator.
A trial court has authority to order the defendant to repay fees for legal
services provided, that is, court-appointed counsel and investigative costs, if the
court determines that a defendant has financial resources enabling 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) (Vernon Supp. 2011); Mayer v. State, 309 S.W.3d 552,
556 (Tex. Crim. App. 2010); see also Perez v. State, No. 07–10–0147–CR, 2011
WL 3112061, at *6 (Tex. App.—Amarillo July 26, 2011, pet. dismissed) (mem.
op.) (not designated for publication) (including investigative costs as costs of legal
services). Nonetheless, “[a] defendant who is determined by the court to be
indigent is presumed to remain indigent for the remainder of the proceedings in the
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case unless a material change in the defendant’s financial circumstances occurs.”
TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (Vernon Supp. 2011). “[T]he
defendant’s financial resources and ability to pay are explicit critical elements in
the trial court’s determination of the propriety of ordering reimbursement of costs
and fees.” Mayer, 309 S.W.3d at 556. Thus, the record must supply a factual basis
to support the determination that the defendant is capable of repaying the
attorney’s fees and investigative costs ordered to be paid. See id.
Here, the record does not show that the trial court reconsidered its
determination of indigency, the occurrence of a material change in appellant’s
financial circumstances, or his ability to offset the cost of legal services provided.
See TEX. CODE CRIM. PROC. ANN. arts. 26.04(p), 26.05(g). To the contrary, after
sentence was imposed, the trial court appointed appellate counsel based on
appellant’s indigence. We agree with appellant, and the State concedes, there is no
evidence to support the trial court’s order for appellant to repay the attorney’s fees
and investigative fees expended on his behalf in the underlying case.
The State also concedes that appellant should not be required to pay for the
cost of the interpreter appointed by the trial court. Code of Criminal Procedure
article 38.30 provides that an accused is entitled to the appointment of an
interpreter if he or a witness does not understand the English language. See TEX.
CODE CRIM. PROC. ANN. art. 38.30 (Vernon Supp. 2012). The statute also provides
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that the interpreter is entitled to be compensated for his or her services. See id.
Nothing in article 38.30, however, authorizes a trial court to assess the cost of that
interpreter against the defendant. See id. Moreover, neither the provisions of
Chapter 102 of the Code of Criminal Procedure (entitled “Costs Paid by
Defendants”) nor section 103.021 of the Texas Government Code (entitled
“Additional Fees and Costs in Criminal or Civil Cases”) authorize the assessment
of interpreter’s fees. See TEX. CODE CRIM. PROC. ANN. arts. 102.001–.072 (Vernon
2006 & Supp. 2012); TEX. GOV’T CODE ANN. § 103.021 (Vernon Supp. 2012).
Finding no statutory authority for the assessment, we conclude that the sum of
$400.00 in court-appointed interpreter’s fees should not have been assessed as
costs of court. See Perez v. State, 2011 WL 3112061, at *6.
Appellant does not challenge the other administrative fees, equaling $305,
comprising the remainder of the $3,030 total court costs assessed against him in
the judgment. Thus, the proper remedy is for this Court to subtract the sum of the
fees for the court-appointed attorney, investigator, and interpreter, equaling $2,725,
from the total court costs of $3,030 assessed in the judgment and modify the
judgment to reflect court costs of $305.00. See Mayer, 309 S.W.3d at 557; Cain v.
State, No. 10–11–00045–CR, 2011 WL 4837723, at *5 (Tex. App.—Waco Oct.12,
2011, no pet.) (mem. op., not designated for publication) (modifying judgment to
delete the finding ordering appellant to pay his court-appointed attorney’s and
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investigator’s fees); see also Bell v. State, No. 09–11–00462–CR, 2012 WL
252499, at *1 (Tex. App.—Beaumont Jan. 25, 2012, no pet.) (mem. op., not
designated for publication) (modifying indigent defendant’s judgment to subtract
attorney’s fees but retain administrative costs and fees); Ludlow v. State, No. 03–
11–00212–CR, 2012 WL 104469, at *1 (Tex. App.—Austin Jan. 11, 2012, no pet.)
(mem. op., not designated for publication) (same).
We sustain appellant’s first issue.
Conflict of Interest
In his second issue, appellant contends, “The trial court erred in allowing
McLennan County Criminal district Attorney, Abel Reyna, to prosecute this matter
because Abel Reyna had been appointed to represent [appellant] in this case.” The
State responds that appellant has forfeited this complaint because he did not raise it
in the trial court.
The record shows that Abel Reyna was appointed by the trial court to
represent appellant on April 7, 2009. A docket notation made on April 13, 2009,
indicates that Reyna had a conflict and that a new attorney needed to be appointed.
Also on April 13, 2009, the trial court signed an order appointing Walter Reaves,
Jr. to represent appellant. Reaves represented appellant from that date until after
trial. In his brief, appellant points out that, on January 1, 2011, “Abel Reyna began
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serving as the elected Criminal District Attorney of McClennan County and was
serving as such when the case was tried.”
On appeal, appellant cites article 2.01 of the Code of Criminal Procedure,
which provides that the elected district attorney “shall represent the State in all
criminal cases in the district courts of his district and in appeals therefrom, except
in cases where he has been, before his election, employed adversely.” See TEX.
CODE CRIM. PROC. ANN. art. 2.01 (Vernon 2005). Appellant also points out that
the Court of Criminal Appeals has explained that a prosecuting attorney is
statutorily disqualified when he has formerly represented the defendant in the same
criminal matter as that currently being prosecuted. Landers v. State, 256 S.W.3d
295, 304 (Tex. Crim. App. 2008). Such conduct presents an actual conflict of
interest and constitutes a due-process violation, even without a specific showing of
prejudice. Id.
On appeal, appellant frames his issue to assert that the trial court erred in
permitting the district attorney to prosecute him in the trial court. Appellant does
not, however, address the fact that no complaint was raised in the trial court
regarding the district attorney’s conflict of interest. The trial court had no duty or
authority to remove the district attorney without a request to do so. See id.
(indicating trial court can disqualify district attorney in a case on a showing by
defendant of due-process violation); see also Coleman v. State, 246 S.W.3d 76, 81
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(Tex. Crim. App. 2008) (“The responsibility for making the decision to recuse
himself is on the district attorney himself; the trial court cannot require his
recusal.”).
To preserve a complaint for appellate review, a party must present a timely
request, objection, or motion to the trial court stating the specific grounds for the
desired ruling if the specific grounds were not apparent from the context. See TEX.
R. APP. P. 33.1(a). All the party must do to avoid the forfeiture of a complaint on
appeal is “let the trial court know what he wants, why he thinks himself entitled to
it, and to do so clearly enough for the trial court to understand him at a time when
the trial court is in a proper position to do something about it.” Keeter v. State, 175
S.W.3d 756, 760 (Tex. Crim. App. 2005) (citing Lankston v. State, 827 S.W.2d
907, 909 (Tex. Crim. App. 1992)).
It is well established that almost every right, constitutional and statutory,
may be forfeited by failing to object. Fuller v. State, 253 S.W.3d 220, 232 (Tex.
Crim. App. 2008); Smith v. State, 721 S.W.2d 844, 855 (Tex. Crim. App. 1986).
Numerous constitutional rights, including those that implicate a defendant’s due-
process rights, may be forfeited for purposes of appellate review unless properly
preserved. See Anderson v. State, 301 S.W.3d 276, 279–80 (Tex. Crim. App.
2009) (rejecting “due process” exception to error preservation requirement);
Alexander v. State, 137 S.W.3d 127, 130–31 (Tex. App.—Houston [1st Dist.]
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2004, pet. ref’d) (holding failure to object to trial court regarding violations of
federal and state due process rights forfeited appellate review of those claims).
The United States Supreme Court has explained, “The most basic rights of
criminal defendants are similarly subject to waiver.” Peretz v. United States, 501
U.S. 923, 936, 111 S. Ct. 2661, 2669 (1991). As examples, the Court cited a
number of cases, including the following: United States v. Gagnon, 470 U.S. 522,
528–29, 105 S. Ct. 1482, 1485–86 (1985) (holding absence of objection constitutes
waiver of right to be present at all stages of criminal trial); Levine v. United States,
362 U.S. 610, 619, 80 S. Ct. 1038, 1044 (1960) (ruling that failure to object to
closing of courtroom is waiver of right to public trial); Segurola v. United States,
275 U.S. 106, 111, 48 S. Ct. 77, 79 (1927) (concluding failure to object constitutes
waiver of Fourth Amendment right against unlawful search and seizure); United
States v. Figueroa, 818 F.2d 1020, 1025 (1st Cir. 1987) (holding failure to object
results in forfeiture of claim of unlawful post-arrest delay); United States v.
Coleman, 707 F.2d 374, 376 (9th Cir. 1983) (failure to object constitutes waiver of
Fifth Amendment claim).
We have previously determined the issue of error preservation in an
analogous case. In Worthington v. State, the appellant complained on appeal that
he was deprived of due process of law because one of the prosecutors for the State
had previously served as the court-appointed attorney for his co-defendant. 714
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S.W.2d 461, 465 (Tex. App.—Houston [1st Dist.] 1986, pet. ref’d) overruled on
other grounds by Reed v. State, 744 S.W.2d 112 (Tex. Crim. App. 1988). We held
that the appellant had not preserved his due process complaint because he had
failed to obtain a ruling on his motion to recuse the prosecutor in the trial court.
Id.; see Jones v. State, No. 03–97–00592–CR, 1999 WL 236067, *1 (Tex. App.—
Austin Apr. 15, 1999, pet. ref’d) (not designated for publication) (holding appellant
waived conflict of interest complaint that prosecutor had represented him earlier in
same matter because appellant failed to raise complaint in the trial court).
We hold that, because he did not present the issue in the trial court, appellant
has not preserved his complaint that the trial court erred in permitting the district
attorney to prosecute him in the trial court. See TEX. R. APP. P. 33.1(a).
Accordingly, we overrule appellant’s second issue.
Conclusion
We affirm the judgment of the trial court, as modified.
Laura Carter Higley
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
Do not publish. TEX. R. APP. P. 47.2(b).
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