Amanda Jean Weast v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-14-00298-CR
________________________
AMANDA JEAN WEAST, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 110th District Court
Floyd County, Texas
Trial Court No. 4548; Honorable William P. Smith, Presiding
December 16, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant, Amanda Jean Weast, was indicted for, and convicted of, unauthorized
use of a motor vehicle.1 Pursuant to a plea bargain, she was sentenced to two years in
a state jail facility, suspended in favor of five years community supervision and a $500
fine. Seven months later, the State moved to revoke Appellant’s community supervision
1
TEX. PENAL CODE ANN. § 31.07(a) (West 2011). An offense under this section is a state jail
felony. Id. at (b).
for numerous violations of the conditions thereof. At a hearing on the State’s motion,
Appellant pleaded true to all allegations and the trial court revoked her community
supervision and assessed the original two year sentence. In presenting this appeal,
counsel has filed an Anders2 brief in support of a motion to withdraw. We grant
counsel’s motion, modify the judgment to delete the assessment of attorney’s fees for
representation on the revocation proceedings and, as modified, affirm.
In support of his motion to withdraw, counsel certifies he has conducted a
conscientious examination of the record, and in his opinion, the record reflects no
potentially plausible basis for reversal of Appellant’s conviction. Anders v. California,
386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Schulman, 252
S.W.3d 403, 406 (Tex. Crim. App. 2008). Counsel candidly discusses why, under the
controlling authorities, the record supports that conclusion. See High v. State, 573
S.W.2d 807, 813 (Tex. Crim. App. 1978). Counsel has demonstrated he has complied
with the requirements of Anders and In re Schulman by (1) providing a copy of the brief
to Appellant, (2) notifying her of her right to review the record and file a pro se response
if she desired to do so,3 and (3) informing her of her right to file a pro se petition for
discretionary review. In re Schulman, 252 S.W.3d at 408.4 By letter, this Court granted
2
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
3
This Court is aware of the decision in Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014).
4
Notwithstanding that Appellant was informed of her right to file a pro se petition for discretionary
review upon execution of the Trial Court’s Certification of Defendant’s Right of Appeal, counsel must
comply with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within
five days after this opinion is handed down, send Appellant a copy of the opinion and judgment together
with notification of her right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d
at 408 n.22 & 411 n.35. The duty to send the client a copy of the court of appeals’s decision is an
informational one, not a representational one. It is ministerial in nature, does not involve legal advice, and
exists after the court of appeals has granted counsel’s motion to withdraw. Id. at 411 n.33.
2
Appellant an opportunity to exercise her right to file a response to counsel’s brief,
should she be so inclined. Id. at 409 n.23. Appellant did not file a response but did file
a one-paragraph letter alleging ineffective assistance of trial counsel and a “very steep”
sentence. The State did not favor us with a brief.
At the revocation hearing, the trial court inquired whether Appellant was satisfied
with trial counsel’s performance. She answered affirmatively and entered her plea of
true to the State’s allegations in the motion to revoke. The State offered Appellant’s
signed Stipulation of Evidence into evidence and rested its case. Appellant testified and
admitted to committing a new offense and using methamphetamine. She requested
reinstatement of her community supervision and vowed to rehabilitate herself and
comply with the conditions.
By the Anders brief, counsel presents a thorough evaluation of the trial
proceedings for potential error. He then candidly concedes there is no reversible error.
STANDARD OF REVIEW
When reviewing an order revoking community supervision, the sole question
before this Court is whether the trial court abused its discretion. Rickels v. State, 202
S.W.3d 759, 763 (Tex. Crim. App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex.
Crim. App. 1984); Jackson v. State, 645 S.W.2d 303, 305 (Tex. Crim. App. 1983). In a
revocation proceeding, the State must prove by a preponderance of the evidence that
the probationer violated a condition of community supervision as alleged in the motion.
Cobb v. State, 851 S.W.2d 871, 874 (Tex. Crim. App. 1993). If the State fails to meet
its burden of proof, the trial court abuses its discretion in revoking community
3
supervision. Cardona, 665 S.W.2d at 494. In determining the sufficiency of the
evidence to sustain a revocation, we view the evidence in the light most favorable to the
trial court's ruling. Jones v. State, 589 S.W.2d 419, 421 (Tex. Crim. App. 1979).
Additionally, a plea of true standing alone is sufficient to support a trial court’s
revocation order. Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979).
COURT-APPOINTED ATTORNEY’S FEES
Counsel was appointed by the trial court in June 2013 to represent Appellant.
The clerk’s record contains two Bills of Cost. The first, generated in August 2013, when
Appellant was originally convicted, reflects an assessment of $400 in court-appointed
attorney’s fees. Counsel was again appointed in August 2014 to represent Appellant on
the revocation proceeding. The second bill generated in July 2014 after judgment was
entered revoking community supervision reflects an assessment of “Court Appointed
Attorney Fee - - $400.00" and “Court Appointed Attorney Fee (Motion to Revoke) - -
400.00.”
It is well established that in order to assess court-appointed attorney’s fees in a
judgment, a trial court must determine that the defendant has financial resources that
enable 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) (West Supp. 2014); Mayer v. State, 309
S.W.3d 552, 555-56 (Tex. Crim. App. 2010). See also TEX. CODE CRIM. PROC. ANN. art.
26.04(m) (West Supp. 2014). Not only must the trial court make a determination
regarding the defendant’s ability to pay, the record must reflect some factual basis to
support that determination. See Wolfe v. State, 377 S.W.3d 141, 144 (Tex. App.—
4
Amarillo 2012, no pet.). Additionally, a defendant who is found to be indigent is
presumed to remain indigent for the remainder of the proceedings unless a material
change in the defendant’s financial circumstances occurs. If a material change occurs,
the State may move for reconsideration of the defendant’s financial status. See TEX.
CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2014).
In Wiley v. State, 410 S.W.3d 313, 319 (Tex. Crim. App. 2013), the Court held
that an appellant procedurally defaults a claim that the record does not support an order
to reimburse the county for court-appointed attorney’s fees by failing to appeal that
particular issue at the time of the original imposition of community supervision. In this
appeal, because Appellant did not complain of the assessment of $400 in court-
appointed attorney’s fees when first placed on community supervision, that amount
stands. However, nothing in the record before us demonstrates financial ability by
Appellant to pay the $400 assessed for court-appointed attorney’s fees for the
revocation proceeding which she timely appealed. Consequently, that amount was
improperly assessed.
This Court has the power to modify the judgment of the court below to make the
record speak the truth when we have the necessary information to do so. See Ramirez
v. State, 336 S.W.3d 846, 852 (Tex. App.—Amarillo 2011, pet. ref'd) (citing Bigley v.
State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993)). See also Cobb v. State, 95
S.W.3d 664, 668 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Appellate courts have
the power to reform whatever the trial court could have corrected by a judgment nunc
pro tunc where the evidence necessary to correct the judgment appears in the record.
Ashberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd). The
5
power to reform a judgment is "not dependent upon the request of any party, nor does it
turn on the question of whether a party has or has not objected in the trial court." Id. at
529-30. Presently, the Judgment Revoking Community Supervision reflects unpaid
court costs of $868.00 “+ 40000 a/f.” Based on the record before us, we reform that
judgment by deleting the handwritten notation “40000 a/f” under the heading “Court
Costs.” The clerk is ordered to prepare an amended Bill of Cost reflecting total costs
assessed and payments made in connection with this proceeding.
We have independently examined the entire record to determine whether there
are any non-frivolous issues which might support the appeal. See Penson v. Ohio, 488
U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); In re Schulman, 252 S.W.3d at
409; Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We have found no
such issues. See Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). After
reviewing the record and counsel’s brief, we agree with counsel that there is no
plausible basis for reversal. See Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim.
App. 2005).
Accordingly, as modified, the trial court’s judgment is affirmed and counsel's
motion to withdraw is granted.
Patrick A. Pirtle
Justice
Do not publish.
6