Riles, Tawona Sharmin

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1757-13
TAWONA SHARMIN RILES, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SEVENTH COURT OF APPEALS
POTTER COUNTY
J OHNSON, J., filed a dissenting opinion.
DISSENTING OPINION
Article 42.12, sec. 11(b) of the Texas Code of Criminal Procedure states, “A judge may not
order a defendant to make any payments as a term or condition of community supervision, except
for fines, court costs, restitution to the victim, and other conditions related personally to the
rehabilitation of the defendant or otherwise expressly authorized by law. The court shall consider
the ability of the defendant to make payments in ordering the defendant to make payments under this
article.”
Appellant clearly had appointed counsel, and was, therefore, indigent. Our case law provides
that, once declared indigent, a defendant remains so until a change in financial circumstances is
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shown. TEX . CODE CRIM . PROC. art. 26.04(p); Wiley v. State, 410 S.W.3d 313, 317 (Tex. Crim. App.
2013). Article 26.05(g) states, “If the court determines that a defendant has financial resources that
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.” Attorney fees are
not fines, restitution, or related personally to the rehabilitation of the defendant. Nor are they court
costs unless and until the trial court, not the probation officer or the county collection department,
determines that the defendant has an ability to pay, in whole or in part, the billed attorney fees: the
defendant’s financial circumstances have to have changed such that the defendant is no longer
indigent. I find nothing in this record to demonstrate that the trial court made an inquiry as to
appellant’s ability to pay. I therefore must conclude that the trial court had no authority to assess
attorney fees because it did not consider appellant’s ability to pay. Without authority to act, the
court’s order was void. A void order may be challenged at any time. See Nix v. State, 65 S.W.3d
664, 667-68 (Tex. Crim. App. 2001) (“A void judgment is a ‘nullity’ and can be attacked at any
time.”).
I also agree with Justice Pirtle that the majority of the court of appeals reads Wiley v. State,
410 S.W.3d 313 (Tex. Crim. App. 2013), too broadly. He set out the timing of the events at issue.
Order of deferred adjudication signed on March 3, 2010, purports to have an attached bill of
costs.
Attorney fee voucher signed March 4, 2010.
Bill of costs was issued on March 19, 2010, two weeks after the order was signed.
Motion to revoke filed on August 25, 2011.
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Appellant adjudicated on August 22, 2012.
Judgment is signed on August 23, 2012, order purports to have a bill of costs attached.
Bill of costs issued on August 24, 2012.
Justice Pirtle then presented his reasons for concluding that appellant did not forfeit her claim.
In Wiley the Court of Criminal Appeals clarified a split between the
intermediate courts of appeal concerning whether an appellant can raise a sufficiency
of the evidence claim concerning the reimbursement of court-appointed attorney’s
fees imposed during an original plea proceeding resulting in straight probation in a
later appeal from the revocation of that community supervision. There, the Court
held that a defendant is procedurally defaulted under Manuel v. State, 994 S.W.2d
658, 661-62 (Tex. Crim. App. 1999), from asserting error that “could readily have
been raised . . . in a direct appeal from the initial judgment imposing community
supervision.” Wiley, 410 S.W.3d at 320 (emphasis added). In reaching its
conclusion, the Court of Criminal Appeals emphasized that the “record in this case
shows the appellant was well aware of the existence and amount of attorney fees that
were imposed for his court appointed representation during the [original] plea
proceedings.” Id. In Wiley the judgment itself contained a handwritten notation on
the face of the document stating the exact dollar amount of attorney’s fees being
ordered. The opinion of the Court also emphasized the fact that the Bill of Costs was
dated the same day as the original judgment and was attached to that judgment,
giving rise to the presumption that the appellant was fully aware of the full extent of
the court’s order when he signed the judgment. Id.
While the majority here reaches the conclusion that the pertinent facts of this
case were substantially akin to those in Wiley, that simply is not the case. Wiley
involved the revocation of an order of “straight probation,” where, in the original
proceeding, a judgment was entered in addition to an order stating the terms and
conditions of community supervision; whereas this case involves the revocation of
an order deferring an adjudication of guilt where no judgment “independently
imposed an obligation to repay attorney fees–‘as court costs.’” Id. at 320. Wiley
involved a judgment, signed by the defendant, expressly stating the exact dollar
amount of attorney’s fees subsequently being contested; whereas here, the Order of
Deferred Adjudication references an attachment (not even in existence, much less
actually attached when executed) concerning an undetermined amount of attorney’s
fees (to be subsequently awarded), which were to be paid in accordance with a
payment arrangement (to be subsequently made) with a representative of the county
“Collections Department.”
The majority also posits that Manuel brings this case into the context of a
procedural default because, like here, the revocation of an order of deferred
adjudication was involved in that case. In Manuel the Court of Criminal Appeals
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held that an appellant was procedurally barred from contesting the sufficiency of the
evidence relating to the issue of guilt in any proceeding other than “appeals taken
when community supervision is originally imposed . . ..” Manuel, 994 S.W.2d at
661. Because Manuel could have questioned the sufficiency of the evidence
substantiating his guilt immediately after being placed on community supervision,
he was procedurally barred from raising that issue when his deferred adjudication
was revoked. Id. But Manuel is factually distinguishable from this case. In Manuel
the appellant sought to contest a finding essential to the original order of deferred
adjudication–a finding of guilt. Whereas here, the Appellant is contesting a factual
determination–the ability to repay $1,000 in court-appointed attorney’s fees–that was
not even made at the time she was placed on deferred adjudication. At best, all the
trial court determined in this case was that the Appellant had the ability to make
some monthly payment (as yet undetermined) that would be made in accordance with
a payment agreement that would be negotiated in the future with the county
collections department. [FN4 Contrary to the majority, I believe Manuel limits the
extent of forfeiture only to those issues which an appellant had notice of at the time
of the original plea. Here, the Appellant did not have notice of the full extent of
attorney’s fees ordered because the amount of those fees was, as yet, undetermined.
Furthermore, having the ability to make a monthly payment is not the same thing as
having the ability to pay the lump sum amount, a finding essential to the imposition
of attorney’s fees under article 26.05 of the Texas Code of Criminal Procedure.
Therefore, it cannot be said that Appellant had notice of that essential finding.]
Accordingly, the procedural default considerations in Manuel and Wiley
simply are not present in this case and it is neither reasonable nor practical to assume
that a defendant being placed on deferred adjudication would contest by means of an
appeal a condition of community supervision he or she reasonably expected to meet.
[FN5 Here, the Order of Deferred Adjudication did not contemplate the payment of
court costs and attorney’s fees in a lump sum amount. The condition of supervision
only required the Appellant to make monthly payments in accordance with a payment
arrangement to be made after taking into consideration the Appellant’s future income
earning ability.] There being no independent judgment to contest, the facts here are
clearly distinguishable from Wiley where a judgment imposed a clear and specific
present obligation to pay a specific amount of attorney’s fees. Furthermore, there
being no essential factual determination made at the time of the original plea
concerning the Appellant’s ability to pay the lump sum attorney’s fees ordered, this
case is distinguishable from Manuel.
Riles v. State, 417 S.W.3d 606, 611-12 (Tex. App.–Amarillo, 2013) (Pirtle, J., dissenting).
I dissent.
Filed: February 4, 2015
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