Jimmy Joseph Newell v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 19, 2023
• Docket: 09-22-00415-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-22-00415-CR ________________

JIMMY JOSEPH NEWELL, Appellant

V.

THE STATE OF TEXAS, Appellee ________________________________________________________________________

On Appeal from the 163rd District Court Orange County, Texas Trial Cause No. B220122-R ________________________________________________________________________

MEMORANDUM OPINION

In an open plea, Jimmy Joseph Newell pled guilty to the offense of evading

arrest or detention. The trial court found him guilty and assessed punishment at

eighteen months of confinement. The judgment included an assessment for court

costs and reimbursement fees, which Newell challenges in one issue on appeal. As

discussed below, we affirm the trial court’s judgment as modified.

1 PERTINENT BACKGROUND

Newell completed an affidavit of indigency, and the trial court appointed trial

counsel and appellate counsel to represent him. The trial court did not mention court

costs or reimbursement fees for attorney’s services in his oral pronouncement. The

written judgment assessed court costs of $290.00 and reimbursement fees of

$965.00, which included $900.00 in fees for court-appointed counsel. The itemized

Bill of Costs showed $290.00 under the heading “Court Costs” and $965.00 under

the heading “Reimbursement Fees.” The “Reimbursement Fees” total consisted of

$900.00 for court-appointed attorney’s fees, $50.00 for the sheriff, and $15.00 for a

time payment.

ANALYSIS

In his sole issue, Newell challenges the court costs and reimbursement fees

that the trial court did not orally pronounce. The State agrees the trial court erred by

assessing reimbursement fees that included attorney’s fees against an indigent

defendant. However, the State asserts that Newell should be required to pay the

legislatively mandated court costs, even though those were not included in the trial

court’s oral pronouncement.

Without a change in a defendant’s indigent status, a trial court cannot impose

an award of attorney’s fees in the judgment against a defendant who remains indigent

when the judgment is pronounced. See Tex. Code Crim. Proc. Ann. art. 26.04(p)

2 (stating an indigent defendant is presumed to remain indigent unless a material

change in a defendant’s financial circumstances occurs), 26.05(g); Wiley v. State,

410 S.W.3d 313, 315, 317 (Tex. Crim. App. 2013); Roberts v. State, 327 S.W.3d

880, 883–84 (Tex. App.—Beaumont 2010, no pet.). Article 26.05(g) provides that a

judge shall order a defendant to pay a reimbursement fee to offset in part or whole

the cost of legal services provided to the defendant “[i]f the judge determines that a

defendant has financial resources” to do so. See Tex. Code Crim. Proc. Ann. art.

26.05(g). We have reviewed the record, and it does not demonstrate that the trial

court found a material change in Newell’s financial circumstances. Therefore, the

trial court abused its discretion by awarding reimbursement for court-appointed

attorney’s fees. See id. arts. 26.04(p), 26.05(g); Roberts, 327 S.W.3d at 884

(concluding trial court abused its discretion by taxing indigent defendant with

attorney’s fees). We sustain Newell’s complaint as to the reimbursement amount for

court-appointed attorney’s fees of $900.00.

In contrast, court costs are not punitive and do not have to be included in the

oral pronouncement of sentence as a precondition of including them in the trial

court’s written judgment. Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim. App.

2009). Court costs are compensatory in nature and a “nonpunitive recoupment of the

costs of judicial resources expended in connection with the trial of the case.” Id. at

366 (internal quotations omitted); see also Armstrong v. State, 340 S.W.3d 759, 767

3 (Tex. Crim. App. 2011). The itemized Bill of Costs included in the record shows the

assessed court costs are legislatively mandated and “compensatory in nature.” Weir,

278 S.W.3d at 366. Accordingly, we hold the court costs of $290.00 did not have to

be orally pronounced to be included in the trial court’s written judgment. See id. at

366–67. The other reimbursement fees of $50.00 for the sheriff and $15.00 time

payment were a recoupment of costs authorized by statute, and thus did not have to

be orally pronounced. See Tex. Code Crim. Proc. Ann. arts. 102.011(a)(2)

(authorizing $50.00 peace officer reimbursement fee); 102.030(a) (authorizing

$15.00 time payment reimbursement fee); see also Weir, 278 S.W.3d at 366–67. We

overrule Newell’s complaint relating to court costs and other reimbursement fees.

CONCLUSION

The Texas Rules of Appellate Procedure authorize us to render the judgment

the trial court should have rendered. See Tex. R. App. P. 43.2(c). Because the record

does not support the award of $900.00 for the reimbursement of attorney’s fees, we

modify the judgment by deleting the reimbursement fees award of $965.00 and

replacing it with $65.00. We affirm the trial court’s judgment as modified.

AFFIRMED AS MODIFIED. ________________________________ W. SCOTT GOLEMON Chief Justice Submitted on June 22, 2023 Opinion Delivered July 19, 2023 Do Not Publish Before Golemon, C.J., Horton and Johnson, JJ. 4