ACCEPTED 06-14-00209-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 2/18/2015 3:42:44 PM DEBBIE AUTREY CLERK
ORAL ARGUMENT WAIVED
CAUSE NOS. 06-14-00209-CR FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS IN THE 2/18/2015 3:42:44 PM DEBBIE AUTREY COURT OF APPEALS Clerk
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA ___________________________________________________________
KELVIN SHAMAR MOORE, JR., Appellant
V.
THE STATE OF TEXAS, Appellee ___________________________________________________________
ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT RED RIVER COUNTY, TEXAS; HONORABLE ERIC CLIFFORD; TRIAL COURT NO. CR02059 ___________________________________________________________
APPELLEE’S (STATE’S) BRIEF ____________________________________________________________
Val J. Varley, County and District Attorney Red River County and District Attorney’s Office Red River County Courthouse 400 North Walnut Street Clarksville, Texas 75426-4012 (903) 427-2009 (903) 427-5316 (Fax)
ATTORNEYS FOR THE STATE OF TEXAS
1 IDENTITY OF PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. 38.2(a)(1)(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 4
STATEMENT OF THE CASE 6
STATEMENT REGARDING ORAL ARGUMENT 7
ISSUES PRESENTED IN REPLY 8
INTRODUCTION 9
STATEMENT OF FACTS 10
SUMMARY OF THE ARGUMENT 15
ARGUMENT AND AUTHORITIES 16
PRAYER 24
CERTIFICATE OF COMPLIANCE 25
CERTIFICATE OF SERVICE 25
3 INDEX OF AUTHORITIES
TEXAS CASES: PAGE(S):
Borders v. State, 846 S.W.2d 834 (Tex. Crim. App. 1992). 17-18
Cates v. State, 402 S.W.3d 250 (Tex. Crim. App. 2013). 23
Euler v. State, 158 S.W.3d 75 (Tex. App.--Houston [14th Dist.] 2005), aff’d, 218 S.W.3d 88 (Tex. Crim. App. 2007). 18-19
Hardeman v. State, 1 S.W.3d 689 (Tex. Crim. App. 1999). 16
Issa v. State, 826 S.W.2d 159 (Tex. Crim. App. 1992). 16
Kinslow, Robert Shane v. The State of Texas, No. 06-14-00083-CR, 2014 Tex. App. LEXIS 13619, 2014 WL 7204556 (Tex. App.--Texarkana December 19, 2014, no pet.) (mem. op., not designated for publication). 16-18
Manuel v. State, 994 S.W.2d 658 (Tex. Crim. App. 1999). 21
Martin v. State, 405 S.W.3d 944 (Tex. App.--Texarkana 2013, no pet.). 23
Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010). 23
Pearson v. State, 994 S.W.2d 176 (Tex. Crim. App. 1999). 16, 18-19
Riles v. State, 417 S.W.3d 606 (Tex. App.--Amarillo 2013). 23 Riles, Tawona Sharmin v. The State of Texas,
4 No. PD-1757-13, 2015 Tex. Crim. App. LEXIS 135, 2015 WL 457915 (Tex. Crim. App. February 4, 2015) (designated for publication). 20-22
Vidaurri v. State, 49 S.W.3d 880 (Tex. Crim. App. 2001). 17-18
Wiley v. State, 410 S.W.3d 310 (Tex. Crim. App. 2013). 21, 23
TEXAS CODE(S): PAGE(S):
Tex. Health & Safety Code Ann. § 481.112(a) (West 2010). 6, 10
Tex. Health & Safety Code Ann. § 481.112(c) (West 2010). 6, 10
Tex. Health & Safety Code Ann. § 481.102(3)(D) (West 2010). 6, 10
TEXAS RULES OF APPELLATE PROCEDURE: PAGE(S):
Tex. R. App. P. 9.4(i)(3) 25
Tex. R. App. P. 9.5 25
Tex. R. App. P. 33.1 17-18
Tex. R. App. P. 38.2 9
Tex. R. App. P. 38.2(a)(1)(A) 2
Tex. R. App. P. 43.2 23
Tex. R. App. P. 44.2(b) 19
Tex. R. App. P. 49.1 17
5 STATEMENT OF THE CASE
This is an appeal from the trial court’s judgment adjudicating guilt and
revoking Moore’s community supervision. See CR, pgs. 64-65.
A grand jury in Red River County returned an original indictment that
charged Moore with the second-degree felony offense of possession of a
controlled substance in penalty group one with intent to deliver, to-wit:
cocaine in an amount of one gram or more but less than four grams. See
CR, pgs. 8-9. See also Tex. Health & Safety Code Ann. § 481.112(a), (c)
(West 2010). In due course, the trial court signed an Order of Deferred
Adjudication (CR, pgs. 44-45) that placed Moore on community supervision
(or “probation”). See RR, pgs. 23-24.
Subsequently, the State filed a motion to proceed with adjudication.
See CR, pgs. 52-57. After a revocation hearing, the trial court revoked
Moore’s community supervision, found him guilty of the underlying offense
and sentenced him to 12 years in the Texas Department of Criminal Justice,
Institutional Division. See RR, pgs. 33-34. From the trial court’s final
judgment adjudicating guilt (CR, pgs. 64-65), Moore timely filed his notice
of appeal. See CR, pg. 70.
By this appeal, Moore brought two (2) issues/points of error.
6 STATEMENT REGARDING ORAL ARGUMENT
The State will waive oral argument in the above-styled and numbered
appellate cause. See Tex. R. App. P. 38.2(a).
7 ISSUES PRESENTED IN REPLY
ISSUE PRESENTED IN REPLY NO. 1: THE APPELLANT WAIVED THE STATUTORY RIGHT TO A SEPARATE PUNISHMENT HEARING BY NOT OBJECTING, OR BY NOT FILING A MOTION FOR NEW TRIAL; AND IN THE ALTERNATIVE, THE APPELLANT HAD THE OPPORTUNITY TO PRESENT HIS MITIGATING EVIDENCE.
SECOND ISSUE PRESENTED IN REPLY NO. 2: THE APPELLANT PROCEDURALLY DEFAULTED HIS CLAIM AS TO $937.50 IN COURT-APPOINTED ATTORNEY’S FEES, BUT THIS COURT SHOULD MODIFY THE TRIAL COURT’S JUDGMENT TO DELETE THE COURT-APPOINTED ATTORNEY’S FEES OF $993.75, AND SHOULD AFFIRM, AS MODIFIED, THE TRIAL COURT’S FINAL JUDGMENT OF CONVICTION.
8 CAUSE NO. 06-14-00209-CR
IN THE
COURT OF APPEALS
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA ___________________________________________________________
KELVIN SHAMAR MOORE, JR., Appellant
V.
THE STATE OF TEXAS, Appellee ___________________________________________________________
ON APPEAL FROM THE 6TH JUDICIAL DISTRICT COURT RED RIVER COUNTY, TEXAS; HONORABLE ERIC CLIFFORD; TRIAL COURT NO. CR02059 ___________________________________________________________
APPELLEE’S (STATE’S) BRIEF ____________________________________________________________
COMES NOW, the State of Texas, by and through the elected County
and District Attorney of Red River County, Val J. Varley, and the County and
District Attorney’s Office of Red River County, files this Appellee’s Brief in
accordance with Rule 38.2 of the Rules of Appellate Procedure.
Unless otherwise indicated, Kelvin Shamar Moore, Jr., will be
referred to as “Moore” or “the appellant.” The State of Texas will be
referred to as “the State” or “the appellee.”
9 STATEMENT OF FACTS
After Indictment, the Trial Court Placed Moore on Deferred Community Supervision.
On September 26, 2013, a grand jury in Red River County returned an
original indictment against Moore that charged him with the felony offense
of possession of a controlled substance in penalty group one with intent to
deliver, to-wit: cocaine in an amount of one gram or more but less than
four grams. See CR, pgs. 8-9. See also Tex. Health & Safety Code Ann. §
481.112(a) (West 2010); Tex. Health & Safety Code Ann. § 481.102(3)(D)
(listing cocaine in Penalty Group 1). The cocaine was 1.69 grams. See
RR, pg. 27. As indicted, the State charged Moore with a second-degree
felony offense. See Tex. Health & Safety Code Ann. § 481.112 (c) (West
2010). See also RR, pg. 23.
On April 14, 2014 (RR, pg. 8), the trial court signed an Order of
Deferred Adjudication that placed Moore on community supervision (or by
its common name, “probation”). See CR, pgs. 44-45. See also RR, pgs.
23-24. As soon as Moore was put on probation in Red River County, he
was transferred out to Bowie County, which supervised him. See RR, pgs.
8-9.
Incident of July 4, 2014.
On July 4, 2014, Nataly Marino, a peace officer for the City of
10 DeKalb, (Officer Marino) came into contact with Moore. See RR, pg. 12.
According to Officer Marino, she was going into her vehicle when Ms.
Williams pulled up, and she started telling what Moore had said to her
daughter. See RR, pg. 14. So, Ms. Williams took off in front of Officer
Marino, who followed behind. See RR, pg. 14. When they got to the
residence, Ms. Williams pointed to Moore, who had already walked off from
the residence to another residence about a block away. See RR, pg. 14.
Officer Marino came into contact with Moore on North Houston Street. See
RR, pg. 17.
Officer Marino asked him for an ID, and he patted his pockets to
check for his wallet. See RR, pgs. 14-15. Moore was like, “Oh, I don’t
have it with me.” See RR, pg. 15. Officer Moore could smell marijuana,
and “asked to pat him down.” See RR, pg. 15.
When Officer Marino was patting him down, she could feel something
in his right pocket. See RR, pg. 15. Officer Marino said, “Yes, please
empty out your pockets.” See RR, pg. 15. A brown cigarette fell out of his
hand. See RR, pg. 15. Officer Marino asked to see the cigarette that had
already been used. See RR, pg. 15. Moore wouldn’t hand it to Officer
Marino, who picked it up. See RR, pgs. 15, 19. Officer Marino did a field
test on it, and it tested positive for marijuana. See RR, pgs. 15, 29. Officer
11 Marino then asked for his name and date of birth, and he gave the name of
“Kelvin Jones” with a date of birth of 9-26-86. See RR, pg. 15.
After about thirty minutes (RR, pg. 19), Officer Marino put the
suspect in the back seat, and then he gave Officer Marino his real name,
Kelvin “Jones” with his real date of birth of 9-30-84. See RR, pg. 16. He
told Officer Marino, “I lied to you because I’m on probation.” See RR, pg.
16.
Officer Marino later charged Moore with the misdemeanor offenses of
possession of marijuana and failure to identify as a fugitive from justice.
See RR, pgs. 16-17, 20. Moore entered pleas of guilty to those, and was
given 21 days in jail. See RR, pg. 20; State’s Exhibits 1 and 2.
Revocation Hearing on October 30, 2014.
On July 21, 2014, the State filed a motion to proceed with
adjudication. See CR, pgs. 52-57. Moore was arrested and had been in the
Red River County jail from July 4th until the revocation hearing on October
30, 2014. See RR, pgs. 1, 8-9.
On October 30th, the trial court called the cause number (CR2059)
underlying this appeal, and Moore entered a plea of “true” to all the
allegations. See RR, pgs. 6-7. As its first witness, the State called Miranda
Dean (Dean), who testified that Moore “hasn’t made any” payments since
12 he’s been on probation. See RR, pgs. 7, 30. Also, Moore didn’t do any
community service hours. See RR, pgs. 10, 30-31.
As its second witness, the State called Officer Moreno, who
recognized the defendant-appellant (Moore) in open court. See RR, pg. 12.
Following the officer’s testimony, the State rested. See RR, pg. 21.
As its only witness, the defense called Moore to testify. See RR, pg.
21. Following his testimony, the defense rested. See RR, pg. 33.
The trial court then found that Moore had violated each and every one
of the allegations in the State’s motion. See RR, pg. 33. The trial court
revoked his community supervision. See RR, pg. 33.
The trial court then ruled, “I now proceed to sentencing.” See RR,
pg. 33. The trial court found Moore guilty of the offense and sentenced him
to 12 years in the Texas Department of Criminal Justice, Institutional
Division. See RR, pgs. 33-34.
On October 30th, the trial court signed its final judgment of
conviction. See CR, pgs. 64-65. On November 10, 2014, Moore timely
filed his notice of appeal. See CR, pg. 70.
Proceedings in this Court of Appeals.
On or about November 25, 2014, Moore filed his notice of appeal in
this Court. On or about December 8, 2014, the official court reporter filed
13 the Reporter’s Record. The District Clerk of Red River County filed the
Clerk’s Record on or about December 22, 2014 along with a Supplemental
Clerk’s Record on January 21, 2015.
On or about January 26, 2015, Moore filed his brief. The State will
be filing its brief on or before the current due date of February 25, 2015.
14 SUMMARY OF THE ARGUMENT
By this appeal, Moore brought two (2) issues/points of error that
allege (1) the trial court erred in failing to conduct a separate punishment
hearing and (2) the trial court erred in assessing $1,931.25 in attorney’s fees
against him because there was no determination that he had the financial
ability to pay those costs. See Appellant’s Brief, pg. 5.
(1) The first issue/point of error should be overruled because the
appellant, Moore, failed to preserve this complaint for review because he
failed to object during the hearing and failed to file a motion for new trial.
Even further, Moore had the opportunity to present mitigating evidence, and
did so by testifying during the revocation hearing. See RR, pgs. 21-33.
(2) The second issue/point of error should be sustained in part and
overruled in part. The total attorney’s fees of $1,931.25 had two
components: (a) $937.50 and (b) $993.75. As to the component of
$937.50, Moore procedurally defaulted by foregoing a direct appeal from the
initial order for deferred adjudication. As for the other component of
$993.75, the State will concede error, and this Court should delete the
erroneous assessment of $993.75. As modified, the trial court’s final
judgment adjudicating guilt should be affirmed in all other respects.
15 ARGUMENT AND AUTHORITIES
ISSUE PRESENTED IN REPLY NO. 1: THE APPELLANT WAIVED THE STATUTORY RIGHT TO A SEPARATE PUNISHMENT HEARING BY NOT OBJECTING, OR BY NOT FILING A MOTION FOR NEW TRIAL; AND IN THE ALTERNATIVE, THE APPELLANT HAD THE OPPORTUNITY TO PRESENT HIS MITIGATING EVIDENCE.
A. Introduction.
With his first issue, the appellant, Moore alleged that the trial court
erred in failing to conduct a separate hearing before sentencing him. See
Appellant’s Brief, pgs. 5, 8 (citing Issa v. State, 826 S.W.2d 159 (Tex. Crim.
App. 1992)).1 In his brief, Moore conceded that this Court recently rejected
a similar argument to the one presented here. See Robert Shayne Kinslow v.
The State of Texas, No. 06-14-00083-CR, 2014 Tex. App. LEXIS 13619,
2014 WL 7204556 (Tex. App.--Texarkana December 19, 2014, no pet.)
(mem. op., not designated for publication) (Morriss, C.J.) (Red River
County).
In his brief, Moore respectfully requested this Court to reconsider its
decision in the Kinslow case. See Appellant’s Brief, pg. 8. However, this
Court did not reconsider its decision in Kinslow because the appellant did
1 Further, “Issa does not stand for the absolute right to a separate punishment hearing.” See Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999). In Hardeman, the Court held that “[i]nstead, it requires the defendant to have the opportunity to present evidence in mitigation of guilt if not afforded during adjudication.” See id. at 690-91 (reference to footnote omitted). See also Pearson v. State, 994 S.W.2d 176, 179 (Tex.
16 not file any motion for rehearing. See Tex. R. App. P. 49.1. Like the
appellant in Kinslow, Moore was also represented by the same
court-appointed counsel, Don Biard, who could have filed a motion for
rehearing or sought further review in the Texas Court of Criminal Appeals
but did not.
B. Waiver and the Opportunity to Present Evidence.
In Kinslow, this Court held that the appellant “failed to object during
the hearing and also failed to file a motion for new trial.” See id., 2014 Tex.
App. LEXIS 13619, at * 2; 2014 WL 7204556, at * 1 (reference to footnote
omitted). In Kinslow, this Court held that the appellant failed to preserve
this complaint for review. See id (citing Tex. R. App. P. 33.1; Vidaurri v.
State, 49 S.W.3d 880, 886 (Tex. Crim. App. 2001); Borders v. State, 846
S.W.2d 834, 836 (Tex. Crim. App. 1992)). The same outcome should result
in the present case.
1. Waiver: Moore Failed to Object During the Hearing.
In the present case, Moore failed to object during the hearing when
the trial court asked, “Anything further, Mr. Meehan?” See RR, pg. 33.
Instead, the defense rested after Moore’s testimony. See RR, pg. 33.
Even further, Moore failed to object when the trial court ruled, “I now
Crim. App. 1999).
17 proceed to sentencing.” See RR, pg. 33. Here, by failing to object, Moore
failed to preserve his complaint for review. See Kinslow, 2014 Tex. App.
LEXIS 13619, at * 2; 2014 WL 7204556, at * 1 (citing Vidaurri, 49 S.W.3d
at 886; Borders, 846 S.W.2d at 836). See also Tex. R. App. P. 33.1.
2. Waiver: Moore Failed to File a Motion for New Trial.
Even assuming Moore was, as he alleged, prevented from presenting
separate punishment evidence, he should have brought the issue to the
attention of the trial court with a motion for new trial. See Vidaurri, 49
S.W.3d at 886. However, Moore never filed such a motion. See id.
3. Moore Had the Opportunity to Present His Mitigating Evidence.
Finally, the decision in the present case was controlled by Pearson, as
explained in Euler v. State, 158 S.W.3d 75, 78 (Tex. App.--Houston [14th
Dist.] 2005), aff’d, 218 S.W.3d 88 (Tex. Crim. App. 2007). According to
the Court in Pearson, “appellant had the opportunity to present evidence
during the proceedings” and “that is all that is required.” See Pearson, 994
S.W.2d at 179 (italics added in the opinion). In Euler, appellant was able to
present evidence in mitigation of his punishment, even though this did not
occur during a separate punishment hearing. See Euler, 158 S.W.3d at 78.
Here, as in Pearson and Euler, Moore had the opportunity to present
evidence, and did so because he testified during the October 30 th
18 proceedings (RR, pgs. 21-33), even though this did not occur during a
separate punishment hearing. See Pearson, 994 S.W.2d at 179; Euler, 158
S.W.3d at 78. Because Moore had the opportunity to present mitigating
evidence and did so, he could not establish any harm because he was able to
present his mitigating evidence. See Tex. R. App. P. 44.2(b) (“[a]ny other
error, defect, irregularity, or variance that does not affect substantial rights
must be disregarded.”).
For the reasons set forth above, Moore’s first issue/point of error
should be overruled. The trial court’s final judgment of conviction should
be affirmed.
19 SECOND ISSUE PRESENTED IN REPLY NO. 2: THE APPELLANT PROCEDURALLY DEFAULTED HIS CLAIM AS TO $937.50 IN COURT-APPOINTED ATTORNEY’S FEES, BUT THIS COURT SHOULD MODIFY THE TRIAL COURT’S JUDGMENT TO DELETE THE COURT-APPOINTED ATTORNEY’S FEES OF $993.75, AND SHOULD AFFIRM, AS MODIFIED, THE TRIAL COURT’S FINAL JUDGMENT OF CONVICTION.
A. Introduction.
With his second issue on appeal, Moore alleged that the trial court
erred in assessing $1,931.25 in attorney’s fees because there was no
determination made that the appellant had the financial ability to pay those
costs. See Appellant’s Brief, pgs. 11-12. With respect to some of those
fees, however, Moore has procedurally defaulted. See Tawona Sharmin
Riles v. The State of Texas, No. PD-1757-13, 2015 Tex. Crim. App. LEXIS
135, 2015 WL 457915 (Tex. Crim. App. February 4, 2015) (designated for
publication).
B. Procedural Default.
In Riles, a probation revocation case, the Texas Court of Criminal
Appeals recently held that the appellant had knowledge of the attorney fee
and, therefore, could have challenged the sufficiency of the evidence
supporting payment of the fee in a direct appeal from the initial order for
deferred adjudication. See Riles, 2015 Tex. Crim. App. LEXIS 135, at * 9;
2015 WL 457915, at * 3. In Riles, the Court held that the appellant
20 procedurally defaulted this claim by failing to do so. See id., 2015 Tex.
Crim. App. LEXIS 135, at * 10, 2015 WL 457915, at * 3 (citing Manuel v.
State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999)).
In Riles, the appellant filed no appeal until her community supervision
was revoked two years later. See Riles, 2015 Tex. Crim. App. LEXIS 135,
at * 12; 2015 WL 457915, at * 4. The Riles Court made clear in Manuel
and Wiley v. State, 410 S.W.3d 310 (Tex. Crim. App. 2013) that those issues
that an appellant can raise in a direct appeal from the initial judgment must
be raised, and that failing to do so results in procedural default. See Riles,
2015 Tex. Crim. App. LEXIS 135, at * 12; 2015 WL 457915, at * 4 (citing
Manuel, 994 S.W.2d at 661-62, Wiley, 410 S.W.3d at 320-31). In Riles, the
appellant had knowledge that she was to be charged for her appointed
attorney fee, as evidenced by the multiple admonishments that she signed,
but she forfeited her claim by foregoing her initial appeal. See id., 2015
Tex. Crim. App. LEXIS 135, at * 13; 2015 WL 457915, at * 4.
C. Application of the Riles Rationale to the Present Case.
1. Procedural Default of $937.50 in Attorney’s Fees.
In the present case, the bill of costs reflected $1,931.25 in “COURT
APPOINTED ATTORNEY” (CR, pg. 77), but that component actually
reflected two (2) separate assessments: one for $937.50 (CR, pgs. 47, 49)
21 and the other for $993.75. See CR, pg. 66. Added together, these two (2)
separate assessments equaled the total amount of $1931.25 ($937.50 +
$993.75 = $1931.25), as reflected in the bill of costs. See CR, pg. 77.
In its Order Imposing Conditions of Community Supervision signed
on April 14, 2014 (CR, pgs. 46-48), the trial court assessed attorney’s fees in
the amount of $937.50. See CR, pgs. 47, 49. The trial court’s assessment
of $937.50 was further evidenced by the Certificate of Court Authorizing
Payment of Attorney’s Fees. See CR, pgs. 49-51.
With respect to the fees of $937.50, however, Moore has procedurally
defaulted because he could have challenged the sufficiency of the evidence
supporting payment of the fee in a direct appeal from the initial order for
deferred adjudication, but failed to do so. See Riles, 2015 Tex. Crim. App.
LEXIS 135, at * 9, 10; 2015 WL 457915, at * 4. As in Riles, Moore
procedurally defaulted because he had knowledge that he was to be charged
for his appointed attorney fee, as evidenced by the multiple admonishments
that he signed, but he forfeited his claim by foregoing his initial appeal. See
Riles, 2015 Tex. Crim. App. LEXIS 135, at * 13; 2015 WL 457915, at * 4.
2. This Court Should Modify in Part the Trial Court’s Judgment and Bill of Costs.
Unlike the assessment of $937.50 (CR, pgs. 47, 49), the State will
concede that, as of October 30th, Moore was indigent and that the record was
22 devoid of any determination or finding by the trial court that he had financial
resources or was otherwise able to pay the appointed attorney fees. See
Wiley, 410 S.W.3d at 317. Thus, the assessment of attorney’s fees in the
amount of $993.75 was erroneous and should be removed. See Cates v.
State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013); Mayer v. State, 309
S.W.3d 552, 556 (Tex. Crim. App. 2010); Martin v. State, 405 S.W.3d 944,
946-47 (Tex. App.--Texarkana 2013, no pet.).
Because this Court has the authority to modify judgments to make the
record speak the truth, see Tex. R. App. P. 43.2, the Bill of Costs should be
revised and the trial court’s judgment should be reformed to add the
following provision: “As used herein the term ‘court costs’ does not
include court-appointed attorney’s fees” in the amount of $993.75. See
Riles v. State, 417 S.W.3d 606, 614 (Tex. App.--Amarillo 2013) (Pirtle, J.,
concurring and dissenting), aff’d, No. PD-1757-13 (Tex. Crim. App.
February 4, 2015). Therefore, the appellant’s second issue/point of error
should be overruled in part and sustained in part to delete the award of
$993.75 only. As modified, the trial court’s final judgment of conviction
should be affirmed in all other respects.
23 PRAYER
WHEREFORE, PREMISES CONSIDERED, the State of Texas prays
that upon final submission without oral argument, this Court should delete
the assessment of $993.75 in court-appointed attorney’s fees only, and affirm
the trial court’s final judgment, as modified; adjudge court costs against the
appellant and for such other and further relief, both at law and in equity, to
which the State may be justly and legally entitled.
Respectfully submitted,
Val J. Varley, County and District Attorney Red River County Courthouse 400 North Walnut Street Clarksville, Texas 75426-4012 (903) 427-2009 (903) 427-5316 (fax) valvarley@valornet.com
By: _/s/Val Varley___________________ Val J. Varley, County-District Attorney SBN# 20496580
ATTORNEYS FOR THE STATE OF TEXAS
24 CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,
the “State’s Brief” was a computer-generated document and contained 4,069
words--not including the Appendix (not applicable here). 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 valvarley@valornet.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 (State’s) Brief” has been served on the 18TH day of
February, 2015 upon the following:
Don Biard McLaughlin, Hutchison & Biard 38 First Northwest Paris, TX 75460
_/s/Val Varley____________ Val J. Varley valvarley@valornet.com