Vargas, Victor v. State

Affirm in part, affirm as modified in part and Opinion Filed July 12, 2013
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00334-CR
No. 05-12-00335-CR
No. 05-12-00336-CR
VICTOR VARGAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause Nos. 401-82363-2011, 401-82671-09 & 401-80263-10
MEMORANDUM OPINION
Before Justices O’Neill, Francis, and Fillmore
Opinion by Justice Francis
Victor Vargas appeals the trial court’s order that he pay court-appointed attorney fees in
two probation revocations and in the order placing him on deferred adjudication for aggravated
robbery. We affirm the trial court’s judgment in the two revocations and modify the judgment in
the aggravated robbery case to delete the requirement to pay court-appointed attorney fees.
Appellant was arrested in December 2009 and charged with two burglary of a habitation
offenses. He was appointed counsel, accepted a plea agreement, and on February 5, 2010, the
trial court assessed punishment at eight years confinement, probated for five years, and a $500
fine in each case. The trial court ordered appellant to pay court costs of $340 and $290
respectively and to pay Collin County for his “court-appointed attorney.” The conditions of
probation provide that appellant will reimburse Collin County as directed by the probation
department for “compensation paid to appointed counsel.” Additionally, appellant signed a
document from the probation department entitled “Payment Agreement” listing both burglary
cause numbers. Appellant agreed to a monthly payment of $50 toward his fees owing in both
cases, specifically court costs of $630, attorney fees of $950, and fines totaling $1,000. The
agreement stated the failure to make the monthly payment would be a violation of the court order
and could be cause for a warrant to issue. Under the plea agreements, appellant waived any right
to file a motion for new trial or right of appeal.
In March 2011, the State filed motions to revoke, alleging appellant violated three
conditions of his community supervision. After hiring retained counsel to represent him,
appellant pleaded true to the State’s allegations, and the trial court extended his probation by two
years in each case.
In August 2011, appellant was charged with aggravated robbery and attorney Ed King
was appointed to represent him in September. The State again filed motions to revoke probation
in the burglary cases and attorney Sindhu Alexander was appointed in those cases. Three months
later, the trial court granted motions to substitute counsel and retained counsel Bruce Anton took
over in all three cases. In January 2012, retained counsel filed a motion to continue, noting he
had enlisted the services of an expert drug evaluation counselor and the expert needed time to
evaluate appellant and confer with counsel.
On February 15, 2012, appellant pleaded true to the State’s motions to revoke and was
sentenced to eight years in prison in each burglary case. The judgments revoking probation
reflect appellant was ordered to pay “all fines, costs” and “court-appointed attorney” fees. The
“Financial Information” section in the clerk’s record shows appellant was ordered to pay for both
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cases, costs of $630, attorney fees of $950, and fines of $1,000. The attorney fee amount dates
from the original pleas placing appellant on probation in each case.
During the same hearing, in the aggravated robbery case, appellant entered an open plea
of guilty and was placed on deferred adjudication probation for ten years. The trial court ordered
appellant to pay court costs of $269.12 and that “the cost to Collin County for the payment of
this defendant’s court-appointed attorney, if any, is taxed against [appellant] as court cost.” A
Payment Agreement shows appellant agreed to make a monthly payment of $20 on his fees, and
specifically states “Court Costs TBD” and “Attorney Fee -0-.” A supplemental clerk’s record
filed after submission of these appeals shows appellant was assessed costs totaling $929.12 of
which $660 are listed as appointed attorney’s fees. The clerk’s record reflects that court-
appointed attorney Ed King submitted a pay sheet to the court for representation of appellant for
the three months after appellant’s arrest for aggravated robbery until Bruce Anton was retained
to represent him.
On appeal, appellant claims insufficient evidence supports the trial court’s order that he
pay for court-appointed counsel in each case. Appellant contends that, because he was initially
found indigent in these cases, he was deemed indigent throughout the proceedings and should
not be ordered to pay court-appointed counsel costs.
With respect to the two burglary of habitation convictions, appellant was ordered to pay
$950 in attorney fees at the original proceeding at which he was placed on community
supervision. There is nothing in the record to indicate any additional attorney fees were imposed
as part of the revocation proceeding.
The law is well established that a defendant placed on community supervision may raise
issues related to the conviction, such as evidentiary sufficiency, only in appeals taken when
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community supervision is originally imposed. Manuel v. State, 994 S.W.2d 658, 661 (Tex.
Crim. App. 1999). That is, such issues may not be raised in appeals filed after community
supervision is revoked. Id.
Thus, in his burglary cases, appellant could challenge the assessment of court-appointed
attorney’s fees only at the time those costs were imposed. Because he did not bring these
complaints until he was revoked, we conclude they are untimely. We overrule his sole issue in
cause numbers 05-12-00335-CR and 05-12-00336-CR.
In the aggravated robbery case, in response to appellant’s complaint, the State contends
the evidence supports the assessment of the court-appointed attorney’s fees. Specifically, the
State argues that, although appellant was initially found indigent, he (1) retained counsel
following the State’s March 2011 motions to revoke in the two burglary cases, (2) was found
“ineligible for court-appointed counsel at one point in August 2011,” and (3) retained counsel in
December 2011. The State claims this is evidence of a material change in financial
circumstances after a determination of indigency and, therefore, supports the trial court’s
decision to assess court-appointed attorney’s fees. We disagree.
A defendant is indigent if he is not financially able to employ counsel. TEX. CODE CRIM.
PROC. ANN. art. 1.051(b) (West Supp. 2012). The determination of whether a defendant is
indigent is made “on a case-by-case basis as of the time the issue is raised and not as of some
prior or future time.” Whitehead v. State, 130 S.W.3d 866, 874 (Tex. Crim. App. 2004). Factors
to be considered include “the defendant’s income, source of income, assets, property owned,
outstanding obligations, necessary expenses, the number and ages of dependents, and spousal
income that is available to the defendant.” McFatridge v. State, 309 S.W.3d 1, 6 (Tex. Crim.
App. 2010).
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A defendant who is determined by a 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.” TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2012).
If a material change in financial circumstances occurs after the determination of indigency is
made, the defendant, the defendant’s counsel, or the attorney representing the State may move
for reconsideration of the determination. Id. If the trial court determines that the defendant has
financial resources which enable him to offset, in part or in whole, the costs of the legal services
provided, including any expenses and costs, the court shall order the defendant to pay during the
pendency of the charges or, if convicted, as court costs the amount that it finds the defendant is
able to pay. TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2012). Thus, the
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 v. State, 309
S.W.3d 552, 556 (Tex. Crim. App. 2010); Hill v. State, No. 12-11-00292-CR, 2012 WL
2834168, at *2 (Tex. App.—Tyler July 11, 2012, no pet.) (mem. op.) (evidence presented at
hearing that incarcerated defendant received monthly disability check of $777 supported order to
pay all or part of $610 for court-appointed attorney costs incurred during revocation hearing at
which defendant received sentence of twenty years in prison).
The State first argues the fact that appellant hired counsel in March 2011 is some
evidence he was not indigent in his aggravated robbery case. Appellant was arrested for
aggravated robbery on August 16, 2011. Because indigency determinations are made at the time
the issue is raised, we conclude appellant’s hiring retained counsel to represent him in March
2011, five months before he committed aggravated robbery, is no evidence of what his indigency
status was in August 2011.
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Next, the State argues appellant was found ineligible for court-appointed counsel in
August 2011. The record contains an “Indigency Flow Sheet,” dated August 18, 2011, which
states “NOT ELIGIBLE.” In the upper left corner of the flow sheet, however, is a hand-written
note stating “9-1-11 Re-reviewed. Def. remains in custody – eligible.” It bears the initials of the
person who made the notation, and that same day, appellant was appointed counsel. Because the
document that indicates appellant was found ineligible also shows his status was re-evaluated
and he was subsequently found eligible, we conclude this is not sufficient to support the State’s
contention.
Finally, the State claims the fact appellant hired retained counsel in December 2011 is
evidence of a material change in financial circumstances, sufficient to support the assessment of
court-appointed attorney’s fees. At the time of trial, appellant was twenty years old and had been
married for two years. His mother testified she raised and supported appellant and his two
siblings by cleaning houses after she and appellant’s father were divorced. Jose Borras testified
appellant married Borras’s sister (who had recently joined the Marines), and they lived with her
parents. According to Borras, his family helped appellant “cooperate with his conditions” of
probation by getting him to meetings, community service, and check-ins. Borras also testified
that he, his family, and appellant’s mother had been pooling money together to pay for
appellant’s legal fees and community service fees. Thus, contrary to the State’s assertions, the
record does not show appellant had a material change in financial circumstances; rather, the
record shows he had immediate and extended family members who assisted him by retaining and
paying for legal counsel. The evidence presented by witnesses who testified at the hearing as
well as the documents contained in the record do not support a finding of a material change in
financial circumstances.
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Under these circumstances, we conclude there is no evidence to support that portion of
the trial court’s judgment ordering appellant to pay his court-appointed attorney’s fees. We
sustain appellant’s sole issue in cause number 05-12-00334-CR.
We affirm the trial court’s judgments in cause numbers 05-12-00335-CR and 05-12-
00336-CR. We modify the trial court’s judgment in cause number 05-12-00334-CR to delete the
language ordering the cost of appellant’s court-appointed attorney taxed against him as court
cost. We affirm the trial court’s judgment as modified in cause number 05-12-00334-CR.
Do Not Publish
TEX. R. APP. P. 47
120334F.U05
/Molly Francis/
MOLLY FRANCIS
JUSTICE
7
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
VICTOR VARGAS, Appellant On Appeal from the 401st Judicial District
Court, Collin County, Texas
No. 05-12-00334-CR V. Trial Court Cause No. 401-82363-2011.
Opinion delivered by Justice Francis,
THE STATE OF TEXAS, Appellee Justices O'Neill and Fillmore participating.
Based on the Court’s opinion of this date, we MODIFY the trial court’s judgment by
DELETING the language:
It is further ORDERED that the cost to Collin County for the payment of
this defendant’s court-appointed attorney, if any, is taxed against this defendant as
court cost.
We AFFIRM the trial court’s judgment as MODIFIED.
Judgment entered July 12, 2013
/Molly Francis/
MOLLY FRANCIS
JUSTICE
8
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
VICTOR VARGAS, Appellant On Appeal from the 401st Judicial District
Court, Collin County, Texas
No. 05-12-00335-CR V. Trial Court Cause No. 401-82671-09.
Opinion delivered by Justice Francis,
THE STATE OF TEXAS, Appellee Justices O'Neill and Fillmore participating.
Based on the Court’s opinion of this date, we AFFIRM the trial court’s judgment.
Judgment entered July 12, 2013
/Molly Francis/
MOLLY FRANCIS
JUSTICE
9
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
VICTOR VARGAS, Appellant On Appeal from the 401st Judicial District
Court, Collin County, Texas
No. 05-12-00336-CR V. Trial Court Cause No. 401-80263-10.
Opinion delivered by Justice Francis,
THE STATE OF TEXAS, Appellee Justices O'Neill and Fillmore participating.
Based on the Court’s opinion of this date, we AFFIRM the trial court’s judgment.
Judgment entered July 12, 2013
/Molly Francis/
MOLLY FRANCIS
JUSTICE
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