John Elie LeBlanc v. State ( 2020 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-19-00152-CR
JOHN ELIE LEBLANC, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 188th District Court
Gregg County, Texas
Trial Court No. 45834-A
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Justice Stevens
MEMORANDUM OPINION
On July 3, 2019, John Elie LeBlanc’s deferred adjudication community supervision was
revoked, his guilt was adjudicated, and he was sentenced to five years’ imprisonment. On appeal,
LeBlanc complains that the clerk’s certified bill of costs erroneously reflects that the trial court
assessed him an attorney fee of $816.00 and that he was assessed a fine of $1,500.00 when no fine
was orally pronounced at his sentencing. We agree. Because the bill of costs was incorporated
into the judgment, we will modify the trial court’s judgment and the clerk’s bill of costs by
changing the attorney fee to $476.00 and the fine to $0.00.
I. Background
On February 17, 2017, LeBlanc pled guilty to two counts of aggravated assault. The trial
court received his plea and, pursuant to a plea agreement, deferred adjudication of his guilt;
assessed him a $1,500.00 fine, court costs of $249.00, and attorney fees of $476.00; and placed
him on community supervision for ten years. Two and one-half years later, the trial court revoked
LeBlanc’s community supervision, adjudicated his guilt, and sentenced him to five years’
imprisonment. When pronouncing LeBlanc’s sentence, the trial court did not orally impose a fine
as part of his sentence.
The first page of the trial court’s written judgment adjudicating guilt reflects a punishment
of five years and contains no entries under the headings “Fine” and “Court Costs.” At the bottom
of the second page, the judgment recites the following under the heading “Special Findings and
Orders:
THE COURT ORDERS ALL COURT-ORDERED PAYMENTS, IF ANY,
SUSPENDED WHILE DEFENDANT IS IN CUSTODIAL SUPERVISION, AND
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SUCH PAYMENT SHALL BE REINSTATED THIRTY DAYS AFTER THE
DATE OF DEFENDANT’S DISCHARGE FROM CUSTODIAL SUPERVISION.
Page 3 of the judgment contains a certified bill of costs reflecting total costs of $2,780.00,
including $816.00 for “Attorney Fee,” and $1,500.00 for “Fine.” The final page of the judgment
contains the signature of the trial judge. Thus, it appears that the trial court intended to incorporate
the bill of costs into its written judgment.
II. The Judgment and Bill of Costs Must Be Modified
In his first issue, LeBlanc complains that the bill of costs erroneously assessed him court-
appointed attorney fees. 1 A trial court may order the reimbursement of court-appointed attorney
fees only “[i]f the judge determines that a defendant has financial resources that enable the
defendant to offset in part or in whole the costs of the legal services provided . . . including any
expenses and costs.” TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (Supp.). “[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” of legal services provided.
Armstrong, 340 S.W.3d at 765–66 (quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App.
2010)).
The record in this case shows that LeBlanc was found to be indigent and that LeBlanc was
represented by court-appointed counsel throughout these proceedings. Once a defendant is found
to be indigent, he “is presumed to remain indigent for the remainder of the proceedings in the case
unless a material change in the defendant’s financial circumstances occurs.” TEX. CODE CRIM.
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Court-appointed attorney fees contained in a certified bill of costs are effective, whether orally pronounced and
whether incorporated in the written judgment. Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011).
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PROC. ANN. arts. 26.04(p) (Supp.); Walker v. State, 557 S.W.3d 678, 689 (Tex. App.—Texarkana
2018, pet. ref’d).
The record shows that LeBlanc was assessed $816.00 in court-appointed attorney fees.
However, this amount included $476.00 in court-appointed attorney fees in the order of deferred
adjudication. Complaints regarding the imposition of court costs in an order of deferred
adjudication are required to be asserted in a timely appeal of that order. See Perez v. State, 424
S.W.3d 81, 86 (Tex. Crim. App. 2014). This includes complaints about the assessment of court-
appointed attorney fees. Wiley v. State, 410 S.W.3d 313, 318 (Tex. Crim. App. 2013). If a
defendant has knowledge of the imposition of court-appointed attorney fees in a deferred
adjudication order and fails to make a timely appeal of that order, he forfeits any complaint about
court-appointed attorney fees assessed in the order. Riles v. State, 452 S.W.3d 333, 337 (Tex.
Crim. App. 2015); Wiley, 410 S.W.3d at 318, 321. Consequently, he may not assert the complaint
in an appeal from a judgment adjudicating his guilt. Riles, 452 S.W.3d at 337; Wiley, 410 S.W.3d
at 321.
The record in this case shows that LeBlanc signed, and his right thumb print was embossed
on, the order of deferred adjudication. In addition, the order establishing LeBlanc’s conditions of
community supervision, also acknowledged by LeBlanc with his signature, provided that he would
pay $476.00 in court-appointed attorney fees as a term of his community supervision. Under this
record, we conclude that LeBlanc was aware that he was required to pay the court-appointed
attorney fees. See Wiley, 410 S.W.3d at 320–21. Since he failed to timely appeal the deferred
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adjudication order, any complaint regarding the $476.00 in court-appointed attorney fees assessed
in that order has been forfeited. See Riles, 452 S.W.3d at 338; Wiley, 410 S.W.3d at 321.
Even so, the record contains no evidence (1) that LeBlanc’s financial circumstances have
changed since the order of deferred adjudication or (2) that he had the ability to pay the court-
appointed attorney fees. Consequently, the assessment of the additional $340.00 for court-
appointed attorney fees was error. We sustain LeBlanc’s first issue as to the additional $340.00 in
attorney fees.
In his second issue, LeBlanc complains that it was error to impose a fine of $1,500.00 in
the written judgment and certified bill of costs since the trial court did not orally pronounce the
fine at his sentencing. We agree.
In this case, the trial court imposed a $1,500.00 fine in its deferred adjudication order.
When the trial court adjudicated LeBlanc’s guilt, it did not orally pronounce a fine, yet, a fine was
included in the certified bill of costs that was incorporated into the written judgment. “[W]hen an
accused receives deferred adjudication, no sentence is imposed.” Taylor v. State, 131 S.W.3d 497,
502 (Tex. Crim. App. 2004). If his guilt is subsequently adjudicated, “the order adjudicating guilt
sets aside the order deferring adjudication, including the previously imposed fine.” Id. When
there is a conflict between the oral pronouncement of sentence in open court, which includes any
imposition of a fine, and the written judgment, the oral pronouncement controls. See id. (citing
Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003)). Since the trial court did not
orally pronounce a fine, the assessment of a fine in the judgment and bill of costs was error. We
sustain LeBlanc’s second issue.
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“Appellate courts ‘have the authority to reform judgments and affirm as modified in cases
where there is non reversible error.’” Walker, 557 S.W.3d at 690 (quoting Ferguson v. State, 435
S.W.3d 291, 294 (Tex. App.—Waco 2014, pet. struck) (“comprehensively discussing appellate
cases that have modified judgments”)). We modify the trial court’s judgment by changing the
assessment of attorney fees to $476.00 and changing the fine to $0.00. We also modify the certified
bill of costs by changing the amount for “Attorney Fee” to $476.00, by changing the amount for
“Fine” to $0.00, and by changing the amount for “Total Costs” to $940.00.
III. Disposition
For the reasons stated, we modify the trial court’s judgment by changing the assessment of
attorney fees to $476.00 and changing the fine to $0.00. We modify the certified bill of costs by
changing the amount for “Attorney Fee” to $476.00, by changing the amount for “Fine” to $0.00,
and by changing the amount for “Total Costs” to $940.00. As modified, we affirm the trial court’s
judgment.
Scott E. Stevens
Justice
Date Submitted: March 25, 2020
Date Decided: March 26, 2020
Do Not Publish
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