AFFIRM as Modified; Opinion Filed April 18, 2013.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-11-01626-CR
ERICA ANA GARZA, A/K/A ANA MARTINEZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause No. F11-56880-T
MEMORANDUM OPINION
Before Justices Lang-Miers, Murphy, and Fillmore Opinion by Justice Lang-Miers
Appellant Erica Ana Garza was charged with aggravated robbery with a deadly weapon.
Appellant entered an open plea of guilty and the trial court assessed punishment, enhanced by a
prior conviction for robbery, at fifteen years in prison. In two issues on appeal appellant argues
that the trial court erred when it ordered appellant to pay court-appointed attorney’s fees and that
appellant’s punishment was excessive. We resolve appellant’s first issue in her favor. We
resolve appellant’s second issue against her. We limit recitation of the facts because the
background of the case and the evidence admitted at trial are well known to the parties and not
germane to this appeal. We issue this memorandum opinion pursuant to Texas Rule of Appellate
Procedure 47.4 because the law to be applied in this case is well settled. FIRST ISSUE
In her first issue appellant argues that the trial court erred when it assessed attorney’s fees
in the amount of $250 as part of appellant’s court costs because the evidence is insufficient to
support the assessment of attorney’s fees. The State agrees with appellant.
Under article 26.05(g) of the Texas Code of Criminal Procedure, a trial court shall order a
convicted defendant to pay all or part of the defendant’s appointed attorney’s fees as court costs
only if the court finds that the defendant is able to pay those attorney’s fees. See TEX. CODE
CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2012). In this case the trial court assessed $250 in
appointed attorney’s fees as part of appellant’s court costs. 1 The record demonstrates, however,
that the trial court found appellant indigent twice—once for purposes of trial and once for
purposes of appeal. There is no evidence in the record to show a material change in appellant’s
financial status and there is no finding or determination that appellant is able to pay her
appointed attorney’s fees. When an appellate court concludes that there is insufficient evidence
to support the assessment of appointed attorney’s fees as court costs, the appropriate remedy is to
strike the amount of attorney’s fees from the judgment. See, e.g., Montgomery v. State,
No. 05-11-00236-CR, 2012 WL 3024222, at *2 (Tex. App.—Dallas July 25, 2012, no pet.)
(mem. op., not designated for publication). Because the evidence is insufficient to support the
trial court’s assessment of attorney’s fees as part of appellant’s court costs, we resolve
appellant’s first issue in her favor and modify the judgment to change the notation under the
heading “Court Costs” from “$494” to “$244.”
SECOND ISSUE
In her second issue appellant complains that her punishment was excessive. More
specifically, she argues that she was a “decent candidate for probation” and that her prison 1 The trial court assessed $494 in total court costs. One of the itemized court costs listed on the trial court’s fee docket is $250 for “APAT,” which the parties agree stands for “appointed attorney.”
–2– sentence does not meet the rehabilitation objective of the Texas Penal Code. See TEX. PENAL
CODE ANN. § 1.02(1)(B) (West 2011) (listing “rehabilitation of those convicted” as one
objective). To support her argument appellant notes that that she suffered from a drug addiction,
had “mental health issues,” and was sexually abused as a child. In response, the State argues that
appellant failed to preserve this issue for appellate review and, alternatively, the record does not
demonstrate that the sentence violates the objectives of the penal code.
To preserve alleged error relating to excessive punishment, a defendant must make a
timely request or motion in the trial court. See TEX. R. APP. P. 33.1(a)(1); Castaneda v. State,
135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.). In this case appellant did not complain
about her sentence either at the time it was imposed or in her motion for new trial.
Appellant urges us to address the merits of her punishment complaint for three alternative
reasons. First, appellant argues that her complaint was so apparent from the context of the case
that a specific objection was unnecessary to preserve the issue for appeal. See TEX. R. APP. P.
33.1(a)(1)(A) (requiring specific objection unless “the specific grounds were apparent from the
context”). To support her argument appellant cites Montgomery v. State, 99 S.W.3d 257 (Tex.
App.—Fort Worth 2003, pet. struck); Edwards v. State, 21 S.W.3d 625 (Tex. App.—Waco 2000,
no pet.); and Garza v. State, 841 S.W.2d 19 (Tex. App.—Dallas 1992, no pet.). None of those
cases, however, involve a complaint that punishment was excessive and violated the objectives
of the penal code. Those cases also do not explain how a complaint that punishment was
excessive, especially punishment within the statutory range for the offense, would be apparent
from the context of the case and not require an objection at trial. As a result, those cases are not
persuasive.
Second, appellant argues that “fundamental error in punishment” can be raised for the
first time on appeal, citing Hernandez v. State, 268 S.W.3d 176 (Tex. App.—Corpus Christi
–3– 2008, no pet.), and Jaenicke v. State, 109 S.W.3d 793 (Tex. App.—Houston [1st Dist.] 2003, pet.
ref’d). Hernandez and Jaenicke, however, involved allegations of trial court bias that manifested
itself during sentencing. Appellant does not argue that the trial court was biased against her. As
a result, Hernandez and Jaenicke are distinguishable.
Finally, appellant argues that her motion for new trial “serves as adequate preservation.”
We disagree. Appellant’s motion for new trial stated generally that “the verdict is contrary to the
law and the evidence.” A motion for new trial that generally complains that the verdict is
contrary to the law and the evidence does not preserve a complaint that punishment was
excessive. See Rivas v. State, No. 05-11-00390-CR, 2012 WL 677515, at *1 (Tex. App.—Dallas
Mar. 2, 2012, no pet.) (mem. op., not designated for publication) (defendant’s argument in his
motion for new trial that the verdict was contrary to the law and the evidence did not preserve for
appellate review his complaint that trial court abused its discretion by sentencing him to
imprisonment rather than community supervision). We conclude that appellant failed to preserve
her second issue for appellate review. See Castaneda, 135 S.W.3d at 723.
But even if appellant had preserved her complaint for appellate review, we would resolve
it against her. In addition to rehabilitation, the penal code’s two other stated objectives are
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AFFIRM as Modified; Opinion Filed April 18, 2013.
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-11-01626-CR
ERICA ANA GARZA, A/K/A ANA MARTINEZ, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause No. F11-56880-T
MEMORANDUM OPINION
Before Justices Lang-Miers, Murphy, and Fillmore Opinion by Justice Lang-Miers
Appellant Erica Ana Garza was charged with aggravated robbery with a deadly weapon.
Appellant entered an open plea of guilty and the trial court assessed punishment, enhanced by a
prior conviction for robbery, at fifteen years in prison. In two issues on appeal appellant argues
that the trial court erred when it ordered appellant to pay court-appointed attorney’s fees and that
appellant’s punishment was excessive. We resolve appellant’s first issue in her favor. We
resolve appellant’s second issue against her. We limit recitation of the facts because the
background of the case and the evidence admitted at trial are well known to the parties and not
germane to this appeal. We issue this memorandum opinion pursuant to Texas Rule of Appellate
Procedure 47.4 because the law to be applied in this case is well settled. FIRST ISSUE
In her first issue appellant argues that the trial court erred when it assessed attorney’s fees
in the amount of $250 as part of appellant’s court costs because the evidence is insufficient to
support the assessment of attorney’s fees. The State agrees with appellant.
Under article 26.05(g) of the Texas Code of Criminal Procedure, a trial court shall order a
convicted defendant to pay all or part of the defendant’s appointed attorney’s fees as court costs
only if the court finds that the defendant is able to pay those attorney’s fees. See TEX. CODE
CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2012). In this case the trial court assessed $250 in
appointed attorney’s fees as part of appellant’s court costs. 1 The record demonstrates, however,
that the trial court found appellant indigent twice—once for purposes of trial and once for
purposes of appeal. There is no evidence in the record to show a material change in appellant’s
financial status and there is no finding or determination that appellant is able to pay her
appointed attorney’s fees. When an appellate court concludes that there is insufficient evidence
to support the assessment of appointed attorney’s fees as court costs, the appropriate remedy is to
strike the amount of attorney’s fees from the judgment. See, e.g., Montgomery v. State,
No. 05-11-00236-CR, 2012 WL 3024222, at *2 (Tex. App.—Dallas July 25, 2012, no pet.)
(mem. op., not designated for publication). Because the evidence is insufficient to support the
trial court’s assessment of attorney’s fees as part of appellant’s court costs, we resolve
appellant’s first issue in her favor and modify the judgment to change the notation under the
heading “Court Costs” from “$494” to “$244.”
SECOND ISSUE
In her second issue appellant complains that her punishment was excessive. More
specifically, she argues that she was a “decent candidate for probation” and that her prison 1 The trial court assessed $494 in total court costs. One of the itemized court costs listed on the trial court’s fee docket is $250 for “APAT,” which the parties agree stands for “appointed attorney.”
–2– sentence does not meet the rehabilitation objective of the Texas Penal Code. See TEX. PENAL
CODE ANN. § 1.02(1)(B) (West 2011) (listing “rehabilitation of those convicted” as one
objective). To support her argument appellant notes that that she suffered from a drug addiction,
had “mental health issues,” and was sexually abused as a child. In response, the State argues that
appellant failed to preserve this issue for appellate review and, alternatively, the record does not
demonstrate that the sentence violates the objectives of the penal code.
To preserve alleged error relating to excessive punishment, a defendant must make a
timely request or motion in the trial court. See TEX. R. APP. P. 33.1(a)(1); Castaneda v. State,
135 S.W.3d 719, 723 (Tex. App.—Dallas 2003, no pet.). In this case appellant did not complain
about her sentence either at the time it was imposed or in her motion for new trial.
Appellant urges us to address the merits of her punishment complaint for three alternative
reasons. First, appellant argues that her complaint was so apparent from the context of the case
that a specific objection was unnecessary to preserve the issue for appeal. See TEX. R. APP. P.
33.1(a)(1)(A) (requiring specific objection unless “the specific grounds were apparent from the
context”). To support her argument appellant cites Montgomery v. State, 99 S.W.3d 257 (Tex.
App.—Fort Worth 2003, pet. struck); Edwards v. State, 21 S.W.3d 625 (Tex. App.—Waco 2000,
no pet.); and Garza v. State, 841 S.W.2d 19 (Tex. App.—Dallas 1992, no pet.). None of those
cases, however, involve a complaint that punishment was excessive and violated the objectives
of the penal code. Those cases also do not explain how a complaint that punishment was
excessive, especially punishment within the statutory range for the offense, would be apparent
from the context of the case and not require an objection at trial. As a result, those cases are not
persuasive.
Second, appellant argues that “fundamental error in punishment” can be raised for the
first time on appeal, citing Hernandez v. State, 268 S.W.3d 176 (Tex. App.—Corpus Christi
–3– 2008, no pet.), and Jaenicke v. State, 109 S.W.3d 793 (Tex. App.—Houston [1st Dist.] 2003, pet.
ref’d). Hernandez and Jaenicke, however, involved allegations of trial court bias that manifested
itself during sentencing. Appellant does not argue that the trial court was biased against her. As
a result, Hernandez and Jaenicke are distinguishable.
Finally, appellant argues that her motion for new trial “serves as adequate preservation.”
We disagree. Appellant’s motion for new trial stated generally that “the verdict is contrary to the
law and the evidence.” A motion for new trial that generally complains that the verdict is
contrary to the law and the evidence does not preserve a complaint that punishment was
excessive. See Rivas v. State, No. 05-11-00390-CR, 2012 WL 677515, at *1 (Tex. App.—Dallas
Mar. 2, 2012, no pet.) (mem. op., not designated for publication) (defendant’s argument in his
motion for new trial that the verdict was contrary to the law and the evidence did not preserve for
appellate review his complaint that trial court abused its discretion by sentencing him to
imprisonment rather than community supervision). We conclude that appellant failed to preserve
her second issue for appellate review. See Castaneda, 135 S.W.3d at 723.
But even if appellant had preserved her complaint for appellate review, we would resolve
it against her. In addition to rehabilitation, the penal code’s two other stated objectives are
deterrence and punishment as necessary to prevent recurrence of criminal behavior. See TEX.
PENAL CODE ANN. § 1.02(1)(A)–(C). In this case appellant pleaded guilty to beating the
54-year-old complainant with a tire iron while an accomplice stole the complainant’s cell phone.
Appellant also pleaded true to a prior conviction for robbery. Appellant’s 15-year sentence is at
the lower end of the statutory range for the offense, which is 5 to 99 years or life imprisonment.
See id. §§ 12.32(a), 12.42(b), 22.02(b) (West 2011 & Supp. 2012). Given the nature of the
offense and appellant’s criminal history, we could not conclude that appellant’s sentence violated
the objectives of the penal code. Moreover, as a general rule, punishment that is assessed within
–4– the statutory range for an offense is not excessive or unconstitutionally cruel or unusual. Kirk v.
State, 949 S.W.2d 769, 772 (Tex. App.—Dallas 1997, pet. ref’d). We resolve appellant’s second
issue against her.
CONCLUSION
We resolve appellant’s first issue in her favor and modify the judgment to change the
notation under the heading “Court Costs” from “$494” to “$244.” We resolve appellant’s
second issue against her.
/Elizabeth Lang-Miers/ ELIZABETH LANG-MIERS JUSTICE
Do Not Publish Tex. R. App. P. 47
111626F.U05
–5– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ERICA ANA GARZA, A/K/A ANA On Appeal from the 283rd Judicial District MARTINEZ, Appellant Court, Dallas County, Texas. Trial Court Cause No. F11-56880-T. No. 05-11-01626-CR V. Opinion delivered by Justice Lang-Miers, Justices Murphy and Fillmore participating. THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows: the notation under the heading “Court Costs” is changed from “$494” to “$244.” As REFORMED, the judgment is AFFIRMED.
Judgment entered this 18th day of April, 2013.
–6–