Michael Gabriel Morin v. the State of Texas ( 2023 )

Opinion filed July 20, 2023
In The
Eleventh Court of Appeals
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Nos. 11-23-00013-CR & 11-23-00014-CR
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MICHAEL GABRIEL MORIN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 132nd District Court
Scurry County, Texas
Trial Court Cause Nos. 10747 & 10786
MEMORANDUM OPINION
Appellant, Michael Gabriel Morin, pleaded guilty to the state jail felony
offense of unauthorized use of a motor vehicle (trial court cause no. 10747) and the
third-degree felony offense of bail jumping and failure to appear (trial court cause
no. 10786). See TEX. PENAL CODE ANN. §§ 31.07, 38.10 (West 2016). Pursuant to
a plea bargain agreement, the trial court assessed Appellant’s punishment on the
conviction for unauthorized use of a motor vehicle at imprisonment in the State Jail
Division of the Texas Department of Criminal Justice for a term of two years. The
trial court also ordered Appellant to pay restitution in the amount of $27,228.80 to
State Farm Insurance. In this regard, the written plea bargain agreement for the
offense of unauthorized use of a motor vehicle specified that Appellant would pay
restitution of $27,228.80 to State Farm Insurance. The trial court assessed
Appellant’s punishment on the conviction for bail jumping and failure to appear at
imprisonment in the Institutional Division of the Texas Department of Criminal
Justice for a term of five years and a fine of $1,500. However, the trial court
suspended Appellant’s sentences and placed him on community supervision for a
period of five years.
The trial court subsequently revoked Appellant’s community supervision. For
the offense of unauthorized use of a motor vehicle, the trial court sentenced
Appellant to confinement for a term of two years in the State Jail Division of the
Texas Department of Criminal Justice, ordered him to pay restitution to the Scurry
County Community Supervision and Corrections Department in the amount of
$28,654.58, and ordered him to pay reimbursement fees of $660. For the offense of
bail jumping and failure to appear, the trial court sentenced Appellant to confinement
for a term of five years in the Institutional Division of the Texas Department of
Criminal Justice, ordered him to pay restitution to the Scurry County Community
Supervision and Corrections Department in the amount of $4,130, and ordered him
to pay reimbursement fees of $1,288.03.
Appellant presents two issues on appeal. In his first issue, he asserts that the
trial court erred by ordering him to pay restitution to the Scurry County Community
Supervision and Corrections Department. In his second issue, Appellant asserts that
the trial court erred by requiring him to pay court-appointed attorney’s fees. The
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State has filed a brief in which it concedes that Appellant is correct on both
contentions. We modify and affirm.
Analysis
Appellant asserts in his first issue that the trial court erred by ordering him to
pay restitution in the amount of $28,654.58 in trial court cause no. 10747 to the
Scurry County Community Supervision and Corrections Department and restitution
in the amount of $4,130 in trial court cause no. 10786 to the Scurry County
Community Supervision and Corrections Department, because the Scurry County
Community Supervision and Corrections Department is not a “victim” of either
offense. Appellant is correct in making this contention.
“[Restitution] may be ordered only to a victim of an offense for which the
defendant is charged.” Hanna v. State, 426 S.W.3d 87, 91 (Tex. Crim. App. 2014);
Goodman v. State, No. 11-21-00109-CR, 2021 WL 5830719, at *2 (Tex. App.—
Eastland Dec. 9, 2021, no pet.) (per curiam) (mem. op., not designated for
publication); Sexton v. State, No. 11-18-00278-CR, 2019 WL 4316791, at *1 (Tex.
App.—Eastland Sept. 12, 2019, pet. ref’d) (per curiam) (mem. op., not designated
for publication). “A trial court is authorized to order a defendant convicted of an
offense to pay restitution to a victim of the offense or to a crime victim’s assistance
fund, not to an agency of the State of Texas such as a community supervision
department.” Goodman, 2021 WL 5830719, at *2 (emphasis added); see TEX. CODE
CRIM. PROC. ANN. art. 42.037(a), (i) (West 2018); Hanna, 426 S.W.3d at 91, 94;
Sexton, 2019 WL 4316791, at *1. Because the trial court had no authority to require
Appellant to pay restitution to the community supervision department, the trial court
erred when it did so. See Goodman, 2021 WL 5830719, at *2. We sustain
Appellant’s first issue.
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Appellant asserts in his second issue that the trial court erred by ordering
Appellant to pay court-appointed attorney’s fees in the amount of $600 in each case.
Appellant contends that it was error for the trial court to assess court-appointed
attorney’s fees because he was found indigent at the outset of his cases and the record
does not contain evidence of a material change in his financial circumstances.
Appellant is also correct in making this assertion.
An indigent defendant cannot be taxed the cost of services rendered by his
court-appointed attorney unless the trial court finds that the defendant has the
financial resources to repay those costs in whole or in part. Smith v. State, 631
S.W.3d 484, 501 (Tex. App.—Eastland 2021, no pet.) (citing Mayer v. State, 309
S.W.3d 552, 556 (Tex. Crim. App. 2010)); see CRIM. PROC. art. 26.05(g) (West
Supp. 2022); see also CRIM. PROC. art. 42A.301(b)(10) (repayment of attorney’s fees
as a condition of community supervision). The Texas Court of Criminal Appeals
has held that the trial court must find that the defendant had the ability to repay court-
appointed attorney’s fees prior to assessing such fees against an indigent defendant.
Cates v. State, 402 S.W.3d 250, 251–52 (Tex. Crim. App. 2013); see also Mayer,
309 S.W.3d at 556 (“[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.”). Further, a “defendant who is
determined by the [trial] court to be indigent 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.” Cates, 402 S.W.3d at 251 (quoting CRIM. PROC.
art. 26.04(p)).
Appellant filed an Affidavit of Indigence and Request for Appointment of
Attorney in both cases certifying that he did not have the necessary funds to hire an
attorney for his defense. The trial court determined that Appellant was indigent and
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appointed trial counsel to represent Appellant’s interest in all proceedings in the
cases. Subsequent to this appointment, the trial court did not receive evidence, nor
did it issue a finding, that Appellant had the ability to pay any portion of the
attorney’s fees that were incurred by his court-appointed attorney. Moreover,
nothing in the record indicates that (1) Appellant is no longer indigent or (2) the trial
court made a subsequent determination that Appellant’s financial circumstances had
materially changed or that he had the financial resources or ability to pay the court-
appointed attorney’s fees of $1,200 that were assessed against him. Because the trial
court improperly assessed and ordered that Appellant is financially responsible for
the payment of the attorney’s fees incurred by his court-appointed attorney, we must
modify the trial court’s judgments to remove the improperly assessed fees. See
Cates, 402 S.W.3d at 252; Smith, 631 S.W.3d at 501. We sustain Appellant’s second
issue.
This Court’s Ruling
We modify the judgment in trial court cause no. 10747 so as to delete the
restitution of $28,654.58 payable to the Scurry County Community Supervision and
Corrections Department, as well as the requirement for Appellant to pay court-
appointed attorney’s fees of $600. We also modify the district clerk’s bill of costs
in trial court cause no. 10747 to delete the court-appointed attorney’s fees of $600
that were ordered to be assessed against Appellant.
We modify the judgment in trial court cause no. 10786 so as to delete the
restitution of $4,130 payable to the Scurry County Community Supervision and
Corrections Department, as well as the requirement for Appellant to pay court-
appointed attorney’s fees of $600. We also modify the district clerk’s bill of costs
in trial court cause no. 10786 to delete the court-appointed attorney’s fees of $600
that were ordered to be assessed against Appellant.
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As modified, we affirm the judgments of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
July 20, 2023
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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