Angel Ryder Mercado v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: November 8, 2021
• Docket: 07-20-00274-CR
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-20-00274-CR

ANGEL RYDER MERCADO, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 251st District Court Randall County, Texas Trial Court No. 29814-C, Honorable Richard Dambold, Presiding

November 8, 2021 MEMORANDUM OPINION Before QUINN, C.J., and PIRTLE and PARKER, JJ.

Appellant, Angel Ryder Mercado, appeals his conviction for the offense of evading

arrest by use of a motor vehicle1 and sentence of six years’ incarceration in the

Institutional Division of the Texas Department of Criminal Justice. Appellant timely filed

his notice of appeal. Appellant’s appointed counsel on appeal has filed an Anders2 brief

1 See TEX. PENAL CODE ANN. § 38.04(b)(2)(A). 2 See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). in support of a motion to withdraw. We grant counsel’s motion and, as modified, affirm

the judgment.

In support of his motion to withdraw, counsel has certified that he has conducted

a conscientious examination of the record and, in his opinion, the record reflects no

reversible error upon which an appeal can be predicated. Id. at 744; In re Schulman, 252

S.W.3d 403, 406 (Tex. Crim. App. 2008). In compliance with High v. State, 573 S.W.2d

807, 813 (Tex. Crim. App. [Panel Op.] 1978), counsel has discussed why, under the

controlling authorities, the record presents no reversible error. In a letter to appellant,

counsel notified him of his motion to withdraw; provided him with a copy of the motion,

Anders brief, and appellate record; and informed him of his right to file a pro se response.

See Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014) (specifying appointed

counsel’s obligations on the filing of a motion to withdraw supported by an Anders brief).

By letter, this Court also advised appellant of his right to file a pro se response to counsel’s

Anders brief. Appellant has not filed a response. The State has not filed a brief.

By his Anders brief, counsel discusses areas in the record where reversible error

may have occurred but concludes that the appeal is frivolous. We have independently

examined the record to determine whether there are any non-frivolous issues that were

preserved in the trial court which might support an 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;

Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Following our review of

the appellate record and counsel’s brief, we conclude there are no grounds for appellate

review that would result in reversal of appellant’s conviction or sentence.

2 However, in conducting our review, we discovered a mistake that necessitates

correction. The trial court assessed the repayment of $4,355 in appointed attorney’s fees

against appellant. A trial court has the authority to order the reimbursement of court-

appointed attorney’s fees only if “the judge determines that a defendant has financial

resources that enable the defendant to offset in part or in whole the costs of the legal

services provided to the defendant . . ., including any expenses and costs.” TEX. CODE

CRIM. PROC. ANN. art. 26.05(g); see Mayer v. State, 309 S.W.3d 552, 555-56 (Tex. Crim.

App. 2010). Once a criminal defendant has been found to be indigent, he is presumed to

remain indigent for the remainder of the proceedings unless a material change in the

defendant’s financial resources occurs. TEX. CODE CRIM. PROC. ANN. art. 26.04(p). For

attorney’s fees to be assessed, the record must reflect some factual basis to support the

trial court’s determination. Flores v. State, No. 07-17-00142-CR, 2018 Tex. App. LEXIS

6518, at *3 (Tex. App.—Amarillo Aug. 16, 2018, no pet.) (mem. op.) (citing Barrera v.

State, 291 S.W.3d 515, 518 (Tex. App.—Amarillo 2009, no pet.) (per curiam)).

In the present case, appellant was found to be indigent on December 16, 2019,

and the trial court appointed counsel to represent him. The judgment ordering appellant

to repay $4,355 was entered December 7, 2020. Nothing in the record indicates that

appellant’s financial circumstances ever changed. In fact, appellant filed a “pauper’s oath

on appeal” requesting appointment of appellate counsel because appellant remained

indigent. The trial court granted this request and appointed appellate counsel. In the

absence of evidence that appellant has the present ability to pay court-appointed

attorney’s fees, the trial court’s order violates article 26.05 of the Code of Criminal

Procedure. See Cates v. State, 402 S.W.3d 250, 251-52 (Tex. Crim. App. 2013)

3 (discussing that both article 26.05(g) and Mayer, 309 S.W.3d at 556, require the trial court

to determine a defendant has a present ability to reimburse for the cost of court-appointed

attorney’s fees before those fees can be assessed). Because there is no record evidence

establishing that appellant had a present ability to pay the cost of his court-appointed

attorney’s fees, we modify the judgment to delete the order that appellant pay $4,355 in

attorney’s fees. Flores, 2018 Tex. App. LEXIS 6518, at *4 (citing Bruce v. State, No. 07-

12-00347-CR, 2013 Tex. App. LEXIS 31, at *6 (Tex. App.—Amarillo Jan. 3, 2013, no pet.)

(mem. op., not designated for publication)).

We modify the judgment to delete the assessment of $4,355 in attorney’s fees.

We affirm the trial court’s judgment as modified and grant counsel’s motion to withdraw.3

See TEX. R. APP. P. 43.2(b).

Judy C. Parker Justice

Do not publish.

3 Counsel shall, within five days after the opinion is handed down, send appellant a copy of the

opinion and judgment, along with notification of appellant’s right to file a pro se petition for discretionary review. See TEX. R. APP. P. 48.4. This duty 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. In re Schulman, 252 S.W.3d at 411 n.33.