ACCEPTED 06-17-00165-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 12/5/2017 9:31 AM DEBBIE AUTREY CLERK
FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 12/5/2017 9:31:20 AM DEBBIE AUTREY Clerk IDENTITY OF PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. 38.2(a)(l)(A), the list of parties and
counsel is not required to supplement or correct the appellant's list.
2 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 2
TABLE OF CONTENTS 3
INDEX OF AUTHORITIES 5
STATEMENT OF THE CASE 7
STATEMENT REGARDING ORAL ARGUMENT 8
ISSUES/POINTS OF ERROR IN REPLY 9
INTRODUCTION 10
STATEMENT OF FACTS 11
SUMMARYOFTHEARGUMENT 14
ARGUMENT AND AUTHORITIES 15
ISSUE/POINT OF ERROR IN REPLY NO. 1: THERE WAS A SUFFICIENT "BASIS" FOR THE INCLUSION OF $5,767.00 IN COURT COSTS IN THE TRIAL COURT'S FINAL JUDGMENT OF CONVICTION.
ISSUE/POINT OF ERROR IN REPLY NO. 2: THE APPELLANT WAS FOUND INDIGENT; BECAUSE THE RECORD DID NOT THEREAFTER DEMONSTRATE THAT THE TRIAL COURT FOUND A MATERIAL CHANGE IN MORGAN'S FINANCIAL CIRCUMSTANCES, ATTORNEY'S FEES OF $2,300.00 SHOULD NOT BE ASSESSED AGAINST HIM; HOWEVER, COSTS/EXPENSES FOR AN ARTICLE 46B PSYCHOLOGIST WERE EXPRESSLY PROVIDED BY LAW AND SHOULD BE ASSESSED AGAINST THE APPELLANT (MORGAN) AS LEGISLATIVELY- MANDATED COURT COSTS.
3 PRAYER 23
CERTIFICATE OF COMPLIANCE 24
CERTIFICATE OF SERVICE 24
4 INDEX OF AUTHORITIES
U.S. SUPREME COURT CASES: PAGE:
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979). 15
TEXAS CASES:
Allen v. State, 426 S.W.3d 253 (Tex. App.-Texarkana 2013, no pet.). 19, 21-22
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). 17
Cardenas v. State, 403 S.W.3d 377 (Tex. App.-Houston [1st Dist.] 2013), aff'd, 423 S.W.3d 396 (Tex. Crim. App. 2014). 15-16
Cates v. State, 402 S.W.3d 250 (Tex. Crim. App. 2013). 18
Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). 17
Coronel v. State, 416 S.W.3d 550 (Tex. App.-Dallas 2013, pet. ref' d). 20
Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014). 15, 17
Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010). 15, 18
Martin v. State, 405 S.W.3d 944 (Tex. App.-Texarkana 2013, no pet.). 18-19,21-22
Owen v. State, 352 S.W.3d 542 (Tex. App.-Amarillo 2011, no pet.). 16-19, 22
5 Williams v. State, 332 S.W.3d 694 (Tex. App.-Amarillo 2011, pet. denied). 19,22
TEXAS CODES:
Tex. Code Crim. Proc. Ann. art. 26.04(p) (West Supp. 2016). 18
Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2016). 18
Tex. Code Crim. Proc. Ann. art. 46B.027 (West Supp. 2016). 20-22
Tex. Code Crim. Proc. Ann. art. 103 .002 (West 2006). 19, 22
Tex. Code Crim. Proc. Ann. art. 103.009(a) (West 2006). 16
Tex. Code Crim. Proc. Ann. art. 103.009(c) (West 2006). 16-17
Tex. Penal Code Ann. § 22.02(a)(b) (West 2011). 7, 11
TEXAS RULES OF EVIDENCE:
Tex. R. Evid. 902(1). 16
TEXASRULESOFAPPELLATEPROCEDURE:
Tex. R. App. P. 9.4(i)(3) 24
Tex. R. App. P. 9.5 24
Tex. R. App. P. 38.2 10
Tex. R. App. P. 38.l(e) 8
Tex. R. App. P. 38.2(a)(l) 2
6 STATEMENT OF THE CASE
A grand jury in Red River County returned an indictment that charged
Dywane Jermain Morgan (Morgan) with the second-degree felony offense of
aggravated assault with a deadly weapon. See Tex. Penal Code Ann. §
22.02(a)(b) (West 2011). Subsequently, the trial court placed Morgan on
deferred community supervision for a period of ten (1 0) years and required
him to pay a fine of $500.00, court costs and other fees. See CR, pgs. 7-8.
Subsequently, the State filed several motions to proceed with an
adjudication. See CR, pgs. 22-24; RR, pgs. 4-5 .
After a hearing, the trial judge found "[p]aragraphs 1, 2, 3, 4, 5, 8, 9
and 10 as all being true[,]" (RR, pg. 58) and paragraphs 6 and 7 to be "not
true." See RR, pg. 58. The trial judge then sentenced Morgan to twenty (20)
years confinement in the Institutional Division of the Texas Department of
Criminal Justice (TDCJ-ID). See RR, pg. 61.
By timely filing a notice of appeal (CR, pg. 70), Morgan perfected this
appeal from the trial court's Judgment Adjudicating Guilt. See CR, pgs. 64-
65. By this appeal, Morgan brought two (2) issues/points of error.
7 STATEMENT REGARDING ORAL ARGUMENT
The State of Texas will waive oral argument. See Tex. R. App. P.
38.l(e), 38.2(a)(l).
8 ISSUES/POINTS OF ERROR IN REPLY
ISSUE/POINT OF ERROR IN REPLY NO. 1: THERE WAS A SUFFICIENT "BASIS" FOR THE INCLUSION OF $5,767.00 IN COURT COSTS IN THE TRIAL COURT'S FINAL JUDGMENT OF CONVICTION.
ISSUE/POINT OF ERROR IN REPLY NO. 2: THE APPELLANT WAS FOUND INDIGENT; BECAUSE THE RECORD DID NOT THEREAFTER DEMONSTRATE THAT THE TRIAL COURT FOUND A MATERIAL CHANGE IN MORGAN'S FINANCIAL CIRCUMSTANCES, ATTORNEY'S FEES OF $2,300.00 SHOULD NOT BE ASSESSED AGAINST HIM; HOWEVER, COSTS/EXPENSES FOR AN ARTICLE 46B PSYCHOLOGIST WERE EXPRESSLY PROVIDED BY LAW AND SHOULD BE ASSESSED AGAINST THE APPELLANT (MORGAN) AS LEGISLATIVELY-MANDATED COURT COSTS.
9 CAUSE NO. 06-17-00165-CR
IN THE
COURT OF APPEALS
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA
DYWANE JERMAIN MORGAN, Appellant
v. THE STATE OF TEXAS, Appellee
ON APPEAL FROM THE SIXTH JUDICIAL DISTRICT COURT; RED RIVER COUNTY, TEXAS; TRIAL COURT CAUSE NO. CR02253; HONORABLE R. WESLEY TIDWELL, JUDGE
APPELLEE'S BRIEF
TO HONORABLE SIXTH COURT OF APPEALS:
COMES NOW, the State of Texas, by and through the County and
District Attorney's Office of Red River County, files its Appellee's Brief
under Rule 38.2 of the Texas Rules of Appellate Procedure.
Unless otherwise indicated, Dywane Jermain Morgan will be referred
to as "Morgan" or "the appellant" and the State of Texas as "the State" or
"appellee."
10 STATEMENT OF FACTS
Factual Background.
On September 25, 2014, a grand jury in Red River County returned an
original indictment that charged Morgan with the second-degree felony
offense of aggravated assault with a deadly weapon. See CR, pgs. 5-6; RR,
pg. 4. See also Tex. Penal Code Ann. § 22.02(a)(b) (West 2011).
On January 12, 2015 (RR, pg. 13), the trial court signed an order of
deferred adjudication that placed Morgan on deferred community
supervision for a period of ten (1 0) years and required him to pay a fine of
$500.00, court costs and other fees. See CR, pgs. 7-8. On that day of
January 12t\ Miranda Dean, who was in the trial court and employed by the
adult probation department, provided Morgan with a copy of the conditions
of probation. See RR, pg. 22.
In December of 2015, the State filed a motion to proceed with
adjudication. See CR, pgs. 11-13. Subsequently, the State filed amended
motions to proceed with an adjudication, including a motion in March of
2016. See CR, pgs. 22-24; RR, pgs. 4-5.
Hearing on the State's Amended Motion to Adjudicate.
On July 27, 2017, the trial court proceeded with a hearing on the
State's motion to proceed with an adjudication. See RR, pgs. 4-5. When
11 arraigned on that motion, the trial judge entered pleas of "not true" to the
paragraphs. See RR, pgs. 6-12.
After presenting two (2) witnesses (Miranda Dean and Trooper
Brandon Dennison) during the hearing, the State rested. See RR, pg. 44.
After separate recesses, Morgan testified during the July 27th hearing and
acknowledged, "I was on probation." See RR, pg. 47.
At the conclusion of the hearing, the trial judge found "[p]aragraphs 1,
2, 3, 4, 5, 8, 9 and 10 as all being true." See RR, pg. 58. However, the trial
judge found paragraphs 6 and 7 to be "not true." See RR, pg. 58. The trial
judge sentenced Morgan to twenty (20) years confinement in the
Institutional Division of the Texas Department of Criminal Justice (TDCJ-
ID). See RR, pg. 61.
On July 27th, the trial court signed its Judgment Adjudicating Guilt.
See CR, pgs. 64-65 . On August 10, 2017, Morgan filed his notice of appeal.
See CR, pg. 70. On September 11th, the trial court signed its certification of
the defendant's right of appeal. See CR, pg. 75.
Proceedings in this Court of Appeals.
On or about August 23, 2017, Morgan filed his notice of appeal in this
Court. On or about September 21 sr, the District Clerk of Red River filed the
Clerk's Record. The official court reporter filed the Reporter's Record on or
12 about October 2, 2017.
With the appellate record filed, Morgan filed a motion to extend time
to file the appellant's brief on or about October 201h, which this Court
granted. As the appellant, Morgan filed his brief on November 3, 2017. The
State will be filing its brief before the deadline of December 4, 2017.
13 SUMMARY OF THE ARGUMENT
By this appeal, the appellant (Morgan) did not challenge the discretion
of the trial court in revoking his community supervision, nor did he
challenge the assessment of punishment at confinement for twenty (20)
years in the Institutional Division of the Texas Department of Criminal
Justice. Rather, his two (2) issues/points of error challenged the sufficiency
of the evidence supporting ( 1) the court costs in the total amount of
$5,767.00 and (2) the assessment of the amount for "COURT APPOINTED
ATTORNEY" in the bill of costs. See CR, pg. 68.
In summary, (1) the appellant's first issue/point of error should be
overruled because there was a sufficient "basis" for court costs of $5,767.00
in the trial court's Judgment Adjudicating Guilt (CR, pg. 64); and (2)
Morgan was found indigent, and his financial status did not change-so, the
amount of $2,300.00 in attorney's fees could not be assessed against him.
However, the costs of $2,925.00 for an article 46B psychologist were (a)
expressly provided by law and (b) legislatively-mandated by statute under
articles 103.002 and 46B.027 of the Texas Code of Criminal Procedure,
respectively. Accordingly, the Judgment Adjudicating Guilt should be
modified to delete the amount of $2,300.00 in attorney's fees only, and
affirmed in all other respects.
14 ARGUMENT AND AUTHORITIES
ISSUE/POINT OF ERROR IN REPLY NO. 1: THERE WAS A SUFFICIENT "BASIS" FOR THE INCLUSION OF $5,767.00 IN COURT COSTS IN THE TRIAL COURT'S FINAL JUDGMENT OF CONVICTION.
With his first issue/point of error, Morgan challenged the sufficiency
ofthe evidence to support the inclusion of$5,767.00 in costs of court in the
trial court's judgment. See Appellant's Brief, pgs. 3, 8, 12-17. However, the
appellant's first issue/point of error, as briefed, applied an erroneous
standard of review. See Appellant's Brief, pg. 13 (citing Jackson v. Virginia,
443 U.S. 307,319,99 S. Ct. 2781,61 L.Ed.2d 560 (1979)).
A. Standard of Appellate Review: Non-Applicability of Traditional, Evidentiary-Sufficiency Principles.
This Court must review the assessment of court costs on appeal to
determine if there is a basis for the cost, not to determine if there was
sufficient evidence offered at trial to prove each cost, and traditional Jackson
evidentiary-sufficiency principles do not apply. See Johnson v. State, 423
S.W.3d 385, 390 (Tex. Crim. App. 2014). Further, this Court must review
the sufficiency of the evidence supporting the award of costs in the light
most favorable to the trial court's judgment. See Mayer v. State, 309 S.W.3d
552, 557 (2010) ("Sufficiency of the evidence is measured by viewing all of
the record evidence in the light most favorable to the verdict."); Cardenas v.
15 State, 403 S.W.3d 377, 385 (Tex. App.-Houston [1st Dist.] 2013), aff'd, 423
S.W.3d 396 (Tex. Crim. App. 2014).
Article 103 .009(c) of the Texas Code of Criminal Procedure provided
that "[a] statement of an item of cost in a fee record is prima facie evidence
of the correctness of the statement." See Tex. Code Crim. Pro c. Ann. art.
103.009(c) (West 2006). Under article 103.009, a clerk of a court is required
to keep a fee record, and a statement of an item therein is prima facie
evidence ofthe correctness of the statement. See Owen v. State, 352 S.W.3d
542, 547 (Tex. App.- Amarillo 2011 , no pet.) (citing Tex. Code Crim. Proc.
Ann. art. 103.009(a) and (c)).
B. Application of Law to the Present Case.
Here, the Clerk's Record included a bill of costs, which had a total of
$6,267 .00. See CR, pg. 68. The Judgment Adjudicating Guilt had two (2)
columns: (1) a column for the fine of $500.00 and (2) a column for the court
costs of $5,767.00. See CR, pg. 64. When subtracting the fine of $500.00
from $6,267 .00, as evidenced by the bill of costs-a public document under
seal, see Tex. R. Evid. 902(1)-the trial court's final judgment accurately
reflected the court costs in the total amount of$5,767.00. See CR, pg. 68.
As proved by the bill of costs, along with the statutory sub-section
that provided prima facie evidence of the correctness of the statement, see
16 Tex. Code Crim. Proc. Ann. art. 103.009(c) (West 2006); Owen, 352 S.W.3d
at 547, there was a sufficient "basis" for court costs of $5,767.00 in the trial
court's final judgment. Because there was a sufficient evidentiary basis for
court costs of $5,767.00, the appellant's (Morgan's) first issue/point of error,
as briefed, should be overruled. See Johnson, 423 S.W.3d at 390.
Otherwise, the appellant's (Morgan's) first issue/point of error would
require this Court to impermissibly determine if there was sufficient
evidence to prove each cost. See id; Appellant's Brief, pgs. 14-16. Stated
differently, the appellant's (Morgan's) first issue/point of error would require
this Court to erroneously engage in a factual-sufficiency analysis as to the
evidence to prove each cost. See Brooks v. State, 323 S.W.3d 893, 905 (Tex.
Crim. App. 201 0) ("Retaining any kind of factual-sufficiency standard in
criminal cases would, therefore, still make it necessary for this Court to
overrule Clewis 1 and abandon its requirement .. .").
1 Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996). 17 ISSUE/POINT OF ERROR IN REPLY NO. 2: THE APPELLANT WAS FOUND INDIGENT; BECAUSE THE RECORD DID NOT THEREAFTER DEMONSTRATE THAT THE TRIAL COURT FOUND A MATERIAL CHANGE IN MORGAN'S FINANCIAL CIRCUMSTANCES, ATTORNEY'S FEES OF $2,300.00 SHOULD NOT BE ASSESSED AGAINST HIM; HOWEVER, COSTS/EXPENSES FOR AN ARTICLE 46B PSYCHOLOGIST WERE EXPRESSLY PROVIDED BY LAW AND SHOULD BE ASSESSED AGAINST THE APPELLANT (MORGAN) AS LEGISLATIVELY-MANDATED COURT COSTS.
A. Standard of Appellate Review: Indigency and Assessment of Court Costs.
A trial court has authority to order a defendant to pay the attorney's
fees of appointed counsel if it determines that the defendant has the
resources "to offset in part or in whole the costs of legal services
provided[.]" See Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp.
2016); Martin v. State, 405 S.W.3d 944, 946 (Tex. App.-Texarkana 2013,
no pet.). A "defendant who is determined by the 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."
See Cates v. State, 402 S.W.3d 250,251 (Tex. Crim. App. 2013) (citing Tex.
Code Crim. Proc. Ann. art. 26.04(p)). See also Mayer, 309 S.W.3d at 557;
Martin, 405 S.W.3d at 946-47.
A defendant's ability to pay 1s not relevant with respect to
legislatively-mandated court costs. See Martin, 405 S.W.3d at 947; Owen,
18 352 S.W.3d at 546; Williams v. State, 332 S.W.3d 694, 700 (Tex. App.-
Amarillo 2011, pet. denied)). "[A] trial court can order an indigent
defendant to pay legislatively mandated court costs provided payment is not
demanded before the trial court proceedings have concluded." See Martin,
405 S.W.3d at 947 (citing Allen v. State, 426 S.W.3d 253 , 259 (Tex. App.-
Texarkana 2013, no pet.)).
B. Application of the Standard of Review to the Bill of Costs in the Present Case.
1. Court-Appointed Attorney's Fees Should Not Be Assessed.
With his second issue/point of error, Morgan alleged that there was
insufficient evidence of his ability to pay assessed costs of court, including
attorney's fees. See Appellant's Brief, pgs. 3, 8 18-22. Here, Morgan was
found indigent. See CR, pgs. 19-20. Because the record did not thereafter
demonstrate that the trial court found a material change in the defendant's
financial circumstances, as in Martin, attorney's fees should not be assessed
against him. See Martin, 405 S.W.3d at 947. Therefore, the State will
concede error as to the attorney's fees in the amount of $2,300.00 only. !d.
2. The Costs/Expenses for Bryan E. Smith, PSY. D. (Smith) Were Expressly Provided by Law, Which Should Have Been Assessed Against Morgan as Legislatively-Mandated Court Costs.
Article 103.002 provides that "[a]n officer may not impose a cost for a
service not performed or for a service for which a cost is not expressly 19 provided by law." See Tex. Code Crim. Proc. Ann. art. 103 .002 (West 2006).
"Costs are defined and mandated by statute; a bill of costs is a governmental
record which documents those costs that have been assessed based on
various factors including the crime for which the defendant is convicted, the
procedural history of the defendant's case, and costs incurred in trying and
convicting the defendant." See Coronel v. State, 416 S.W.3d 550, 556 (Tex.
App.-Dallas 2013 , pet. ref' d).
As pertinent here, the costs/expenses for Smith, which were included
in the bill of costs by the District Clerk of Red River County, were "for a
service for which a cost [was] expressly provided by law" under article
103.002 of the Texas Code of Criminal Procedure, and were mandated by
statute under article 46B.027 of the Texas Code of Criminal Procedure. See
Tex. Code Crim. Proc. Ann. art. 46B.027 (West Supp. 2016).
On or about April 7, 2016, Morgan's trial counsel filed a sworn
"Motion Suggesting Incompetency and Request for Examination" (CR, pgs.
25-27), and that motion was specifically filed under the authority of article
46B.003 ofthe Texas Code of Criminal Procedure. See CR, pg. 25 . On the
same day of April 7th, the trial court signed an Order for Examination
Regarding Incompetency. See CR, pgs. 28-29. By that order, the trial court
directed Smith to examine Morgan to determine if he was incompetent to
20 stand trial in this cause, as provided by Article 46B of the Texas Code of
Criminal Procedure. See CR, pg. 28.
As evidenced by the expert report (CR, pgs. 30-35)-that was filed of
record on May 16, 20 16-Smith, a licensed psychologist under article
46B.022 of the Texas Code of Criminal Procedure, examined Morgan on
April 28, 2016. See CR, pg. 30. In this report, Smith opined that Morgan
was not competent to stand trial at that time. See CR, pg. 34. On the same
day of May 16th, Smith submitted a billing statement, which the trial judge
signed. See CR, pg. 36.
Subsequently, Smith submitted, and the trial judge approved by his
signature, a billing statement on June 5, 2017 (CR, pg. 51) followed by one
on June 27, 2017. See CR, pg. 59. As submitted and approved by the trial
judge, these three (3) billing statements- which, when added, totaled
$2,925 .00-represented costs/expenses that the Legislature specifically
approved under article 46B.027 of the Texas Code of Criminal Procedure.
See Tex. Code Crim. Proc. Ann. art. 46B.027 (West Supp. 2016). Stated
differently, Smith's costs/expenses were legislatively mandated under article
46B .027 of the Texas Code of Criminal Procedure. See id.
Once the trial court's revocation-proceedings were concluded, see
Martin, 405 S.W.3d at 947 and Allen, 426 S.W.3d at 259, the District Clerk
21 of Red River County included the total amount of $2,925.00 in the column
for "Court Appointed Attorney," as evidenced by the bill of costs. See CR,
pg. 68. Because Smith's costs/expenses (1) were "for a service for which a
cost [was] expressly provided by law" under article 103.002 of the Code of
Criminal Procedure, and (2) were mandated by statute under article 46B.027
of the Code of Criminal Procedure, the costs/expenses were properly
assessed against Morgan because his ability to pay was not relevant with
respect to legislatively-mandated court costs. See Martin, 405 S.W.3d at
947; Owen, 352 S.W.3d at 546; Williams, 332 S.W.3d at 700.
By its Judgment Adjudicating Guilt, the trial court could order
Morgan to pay legislatively-mandated court costs because the bill of costs
was not prepared until August 1, 2017 (CR, pg. 68) and, thus, payment was
not demanded before the trial court's revocation proceedings had concluded.
See Martin, 405 S.W.3d at 947; Allen, 426 S.W.3d at 259. Therefore, the
appellant's second issue/point of error should be sustained in part (as to
$2,300.00 in attorney's fees) and overruled in part (as to $2,925 .00 in
legislatively-mandated court costs under article 46B.027 of the Texas Code
of Criminal Procedure).
22 PRAYER
WHEREFORE, PREMISES CONSIDERED, the State of Texas prays
that upon final submission of the above-styled and numbered cause without
oral argument, this Court affirm the trial court's final, Judgment
Adjudicating Guilt; modify court costs, if necessary; and for such other and
further relief, both at law and in equity, to which it may be justly and legally
entitled.
Respectfully submitted,
Val J. Varley, County & District Attorney Red River County Courthouse 400 N. Walnut Clarksville, TX 75426 (903) 427-2009 (903) 427-5316 (fax)
By: /sNal Varley Val J. Varley, County & District Attorney State Bar No. 20496580 valvarley@valornet.com
ATTORNEYS FOR THE STATE OF TEXAS
23 CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,
the "Appellee's (State's) Brief" was a computer-generated document and
contained 3679 words--not including the Appendix, if any. The undersigned
attorney certified that he relied on the word count of the computer program,
which was used to prepare this document.
/s/ Val Varley Val J. Varley, County & District Attorney valvarley@valomet.com
CERTIFICATE OF SERVICE
This is to certify that in accordance with Tex. R. App. P. 9.5, a true
copy of the Appellee's Brief has been served on the 5TH day of December,
2017 upon the following:
Troy Hornsby Miller, James, Miller & Hornsby, L.L.P 1725 Galleria Oaks Drive Texarkana, TX 75503 troy.Hornsby@gmail.com
/s/ Val Varley Val J. Varley, County & District Attorney valvarley@valomet.com