Aaron Pouch v. the State of Texas ( 2024 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
Nos. 04-22-00420-CR, 04-22-0421-CR
Aaron POUCH,
Appellant
v.
The STATE of Texas,
Appellee
From the 198th Judicial District Court, Kerr County, Texas
Trial Court Nos. B19843-1, B19622-1
Honorable M. Rex Emerson, Judge Presiding
PER CURIAM
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
Delivered and Filed: April 10, 2024
ABATED AND REMANDED; MOTIONS TO WITHDRAW GRANTED
In these appeals, court-appointed counsel filed Anders briefs and motions to withdraw.
Because there is an arguable ground of appeal in each case, we grant counsel’s motions to
withdraw, and we abate these appeals.
We withdraw our September 6, 2023 submission dates; the appeals will be reset for
submission at a later date.
We remand the causes for the trial court to appoint new appellate counsel.
04-22-00420-CR, 04-22-00421-CR
BACKGROUND
A. Indictments, Pleas, Deferrals
In 2019, Appellant Aaron Stacy Pouch was indicted for possession of methamphetamine
(1-4 grams) with intent to deliver, and possession of methamphetamine (4-200 grams) with intent
to deliver. Each indictment alleged two prior convictions enhancements. In 2021, he pled guilty
to the indictments and true to the enhancements. The trial court deferred adjudication and
sentenced him to ten years of community supervision.
B. Judgments Adjudicating Guilt
Later, the State alleged that Pouch had violated multiple conditions of his community
supervision, and it moved to adjudicate the charges. Pouch pled true to the State’s allegations.
The trial court adjudicated Pouch’s guilt on both felony charges. For each, it assessed punishment
at confinement in the Texas Department of Criminal Justice—Institutional Division for a period
of fifty years, with the sentences to run concurrently.
C. Costs, Fees Imposed
The trial court’s judgment in B19843 orders Pouch to pay court costs ($60) and
reimbursement fees ($4,105 + $200). The trial court’s judgment in B19622 orders Pouch to pay
court costs ($60) and reimbursement fees ($4,785 + $400). Each judgment recites that the trial
court inquired into Pouch’s ability to pay the fine and costs, and each found that Pouch “cannot
immediately pay all or part of the . . . costs.” When he is released, Pouch must report to the District
Clerk’s office “to pay or to make arrangements to pay any fines, court costs, reimbursement fees,
and restitution due.”
D. Appeals
Pouch appealed his convictions. Court-appointed counsel Kurtis S. Rudkin filed Anders
briefs in both cases. See Anders v. California, 386 U.S. 738, 744 (1967); Kelly v. State, 436 S.W.3d
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04-22-00420-CR, 04-22-00421-CR
313, 319–20 (Tex. Crim. App. 2014). In each brief, counsel asserts that he reviewed the entire
record and concluded there were “no meritorious issues [that] warrant[] reversal of the complained
of judgment and sentence.” See Kelly, 436 S.W.3d at 319; Nichols v. State, 954 S.W.2d 83, 85
(Tex. App.—San Antonio 1997, no pet.). Counsel also filed motions to withdraw.
Pouch filed a pro se brief, the State filed a response, and Pouch filed a reply.
INDEPENDENT REVIEW
“Under Anders, after receiving a brief claiming that there are no arguable grounds for
appeal, the reviewing court must review the record to make an independent determination.”
Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991) (emphasis removed); accord
Anders, 386 U.S. at 744.
Having conducted an independent review of the record, we conclude there is an arguable
ground of appeal in each case. See Stafford, 813 S.W.2d at 511; Nichols, 954 S.W.2d at 85.
A. Article 42.15 Requirement for Inquiry on the Record
The records do not show that the trial court complied with the statutory requirement to
conduct an inquiry on the record regarding the defendant’s ability to pay court costs.
Notwithstanding any other provision of this article, during or immediately after
imposing a sentence in a case in which the defendant entered a plea in open court
as provided by Article 27.13, 27.14(a), or 27.16(a), a court shall inquire on the
record whether the defendant has sufficient resources or income to immediately
pay all or part of the fine and costs.
TEX. CODE CRIM. PROC. ANN. art. 42.15(a-1) (emphasis added) (effective Sept. 1, 2021); Cruz v.
State, No. 14-21-00454-CR, 2023 WL 3236888, at *4 (Tex. App.—Houston [14th Dist.] May 4,
2023, pet. granted) (recognizing the trial court’s duty “to act sua sponte and hold an ability-to-pay
inquiry when a fine or costs are imposed on a defendant in the judgment” ).
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B. Optional Statutory Waiver
“A defendant may waive the requirement for the inquiry described by Subsection (a-1) to
be on the record.” TEX. CODE CRIM. PROC. ANN. art. 42.15(a-2). The records are silent on whether
Pouch waived the requirement for the inquiry to be on the record. See id.C. Error Preservation
The records do not show that Pouch asserted that he was unable to pay the court costs or
fees. Cf. Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014) (recognizing that “a claim
challenging the bases for the imposition of court costs [may be raised] for the first time on appeal”).
Compare Cruz, 2023 WL 3236888, at *4 (concluding “that a defendant’s right to an ability-to-pay
inquiry is ‘fundamental to the proper functioning of our adjudicatory system’ [and holding that an]
appellant was not required to preserve this complaint for appeal through objection” (quoting
Proenza v. State, 541 S.W.3d 786, 799 (Tex. Crim. App. 2017))), with Rodgers v. State, No. 06-
23-00101-CR, 2023 WL 6379018, at *2 (Tex. App.—Texarkana Oct. 2, 2023, no pet.) (concluding
that a failure to timely “object to the trial court’s imposition of fines and court costs ‘at the earliest
possible opportunity’ [did not] preserve [appellant’s] complaint for [appellate] review” (quoting
Davison v. State, 602 S.W.3d 625, 648 (Tex. App.—Texarkana 2020, pet. ref’d))).
D. Article 43.035(a)’s Applicability
The records are also silent on whether the trial court conducted inquiries on the record after
it rendered its June 24, 2022 judgments. See TEX. CODE CRIM. PROC. ANN. art. 43.035(a)
(requiring the trial court, on the defendant’s request, to “hold a hearing to determine whether that
portion of the judgment imposes an undue hardship on the defendant”); id. art. 43.035(e) (vesting
the trial court with continuing “jurisdiction for the purpose of making a determination under this
article”); Sloan v. State, 676 S.W.3d 240, 242 n.2 (Tex. App.—Tyler 2023, no pet.) (citing TEX.
CODE CRIM. PROC. ANN. art. 43.035(a), (e)) (noting a defendant’s right to request a hearing and
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the trial court’s jurisdiction to hold it); see also Clifton v. State, No. 01-22-00641-CR, 2023 WL
5437181, at *25 n.33 (Tex. App.—Houston [1st Dist.] Aug. 24, 2023, pet. filed) (mem. op.)
(“Because we are remanding the case to the trial court to reassess the amount of court costs, the
trial court will have an opportunity to inquire on the record into [the defendant’s] ability to pay
costs and make any modifications to the judgment it deems necessary.”).
E. Arguable Ground of Appeal
We have not previously decided the question which the records currently before us present:
Is it reversible error if the record does not show that the trial court conducted an inquiry on the
record regarding the defendant’s ability to pay court costs? See TEX. CODE CRIM. PROC. ANN. art.
42.15(a-1); TEX. R. APP. P. 44.2; Cruz, 2023 WL 3236888, at *4.
We have not found any mandatory authority on this question from the Court of Criminal
Appeals, and there is not yet a clear, well-established consensus among our sister courts. E.g.,
Sanders v. State, No. 05-22-01376-CR, 2024 WL 725529, at *9 (Tex. App.—Dallas Feb. 22, 2024,
no pet. h.) (mem. op.); Gates v. State, No. 02-23-00004-CR, 2024 WL 482436, at *4 (Tex. App.—
Fort Worth Feb. 8, 2024, no pet. h.) (mem. op.); Cruz, 2023 WL 3236888, at *5 (criticizing the
analysis in Hernandez-Faced v. State, 661 S.W.3d 630, 638 (Tex. App.—Houston [14th Dist.]
2023, pet. ref’d)); Rodgers, 2023 WL 6379018, at *2.
Accordingly, at this time in our judicial district, this is an arguable ground of appeal. See
Almeida v. State, No. 04-22-00669-CR, 2024 WL 172588, at *2 (Tex. App.—San Antonio Jan.
17, 2024, no pet. h.) (per curiam).
F. Scope of Opinion
This opinion identifies an arguable ground of appeal. See Nichols, 954 S.W.2d at 86. In
it, we have cited statutes, rules, and opinions which may be applicable to the question before us.
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The cited authorities are not an exhaustive list: other statutes, rules, or opinions may apply.
Further, by citing opinions, we are neither adopting nor rejecting their reasoning.
On remand, the new appellate counsel must brief the issue we have identified. See id. Our
identification of an arguable ground of appeal is not a predetermination that these records present
reversible error; it is an opportunity for Appellant to brief the identified issue “as well as any
additional grounds that the attorney discovers,” and for the State to respond. See id.
ANDERS PROCEDURE
In his Anders briefs, court-appointed counsel advised this court that he had reviewed the
records but concluded that there were no arguable points of error. Because our independent review
has determined there is an arguable ground of appeal in each case, we grant Kurtis S. Rudkin’s
motions to withdraw. See Nichols, 954 S.W.2d at 86. We withdraw our September 6, 2023
submission dates. After the briefs are filed, we will reset these cases for submission.
We abate these appeals and remand the causes to the trial court. We order the trial court
to appoint a different attorney to represent Appellant on appeal and notify this court of the
appointment within fifteen days of our order. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex.
Crim. App. 2005); Stafford, 813 S.W.2d at 511.
If Appellant wishes to prosecute this appeal, new appellate counsel must file a brief that
addresses the issue we have identified and any other arguable grounds for appeal. See Bledsoe,
178 S.W.3d at 827; Stafford, 813 S.W.2d at 511.
PER CURIAM
Do not publish
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