Kimberly Yvette Garcia v. State

• Court: Court of Appeals of Texas
• Decided: April 12, 2011
• Docket: 07-09-00357-CR
• Status: Published

Opinion

NO. 07-09-00357-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

APRIL 12, 2011

KIMBERLY YVETTE GARCIA, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

NO. A17437-0711; HONORABLE ROBERT W. KINKAID JR., JUDGE

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION

Appellant Kimberly Yvette Garcia appeals from the trial court’s revocation of her

deferred adjudication community supervision, finding her guilty of forgery of a financial

instrument and sentencing her to eighteen months in a state jail facility. Through two

issues, appellant contends the trial court erred in ordering her to pay $500 in attorney’s

fees. We will modify the trial court’s judgment, and affirm it as modified.

Background

In March 2008, appellant plead guilty to forgery of a financial instrument. As part

of a plea agreement, the court deferred a finding of guilt and placed appellant on community supervision. Appellant’s deferred adjudication was conditioned on her

compliance with specified terms and conditions. In June 2009, the State filed its second

motion to proceed to an adjudication of guilt. At the hearing on this motion, appellant

plead “true” to each of the State’s allegations and entered a written stipulation of the

evidence. She also testified to several reasons why she did not comply with the terms of

her community supervision. Her community supervision officer also testified, outlining

appellant’s failures to comply.

Based on appellant’s plea of “true” and the testimony presented, the trial court

revoked appellant’s community supervision, entered a finding of guilt and sentenced

appellant to eighteen months of confinement in a state jail facility. The court also

imposed court costs of $281.00, restitution in the amount of $3,444.50, and attorney’s

fees repayment in the amount of $500.00. The record also contains an order entitled

“TDCJ Inmate Trust Fund Withdrawal Order” directing the inmate trust fund supervisor

to withdraw money from appellant’s account for payment of an amount that included the

court-appointed attorney’s fees.

Analysis

By her two appellate issues, appellant challenges both the provision in the court’s

judgment requiring her to pay $500 in attorney’s fees, and the withdrawal order directing

withdrawal of funds from her inmate account for that purpose.

In order to assess attorney's fees, the trial court must first determine that the

defendant has financial resources that enable her to offset in part or in whole the cost of

the legal services provided. Tex. Code Crim. Proc. Ann. art. 26.05(g) (West 2009). And 2 the record must reflect some factual basis to support the determination that the

defendant is capable of paying attorney's fees. Barrera v. State, 291 S.W.3d 515, 518

(Tex. App.--Amarillo 2009, no pet.) (per curiam); Perez v. State, 280 S.W.3d 886, 887

(Tex. App--Amarillo 2009, no pet.).

In appellant’s appeal in a companion case, we modified the court’s judgment to

delete the requirement she pay attorney’s fees. Garcia v. State, No. 07-09-00356-CR,

2010 Tex.App. LEXIS 7179 (Tex.App.—Amarillo Aug. 31, 2010, no pet.) (mem. op., not

designated for publication). Also, although the trial court’s judgment in this case

contains a provision expressly ordering appellant to repay attorney’s fees to Hale

County in the amount of $500, it does not contain a finding she had financial resources

enabling her to pay all or any part of the fees paid her court-appointed counsel. Cf.

Marquez v. State, No. 07-10-00366-CR, 2011 Tex.App. LEXIS 2307 (Tex.App.—

Amarillo March 30, 2011, no pet. h.) (mem. op., not designated for publication) (court’s

judgment contained a special finding defendant financially able to pay appointed

attorney’s fees). Nor does such a determination appear elsewhere in the record.

Accordingly, we conclude the order to pay attorney’s fees was improper. Mayer v.

State, 309 S.W.3d 552 (Tex.Crim.App. 2010). We find the same is true of the portion of

the order relating to attorney’s fees in the “TDCJ Inmate Trust Fund Withdrawal Order.”

Accordingly, we modify the trial court’s judgment by deleting the language

ordering appellant to repay attorney’s fees in the amount of $500.00. Id.; see also

Anderson v. State, No. 03-09-00630-CR, 2010 Tex.App. LEXIS 5033, *9 (Tex.App-

Austin, July 1, 2010, no pet.) (modifying judgment to delete order to pay attorney’s

3 fees). We also modify the “TDCJ Inmate Trust Fund Withdrawal Order”1 to remove the

$500.00 in attorney’s fees from the total amount to be withdrawn from appellant’s

inmate account. See Reyes v. State, 324 S.W.3d 865 (Tex.App.—Amarillo 2010, no

pet.) (modifying an inmate withdrawal order); Webb v. State, 324 S.W.3d 229

(Tex.App.—Amarillo 2010, no pet.) (addressing inmate withdrawal orders). As modified,

we affirm the judgment of the trial court.

James T. Campbell Justice

Do not publish.

1 As we noted in Williams v. State, Nos. 07-10-0091-CV, 07-10-0100-CV, 07-10- 0101-CV, 2011 Tex.App. LEXIS 497, *3-4 n.2 (Tex.App.—Amarillo Jan. 25, 2011, no pet.) (mem. op.), these documents are not “orders” in the traditional sense. The controlling statute, Tex. Gov’t Code Ann. § 501.014(e) (West Supp. 2010), describes the process as a “notification by a court” directing prison officials to withdraw sums from an inmate’s account for the payment of “any amount the inmate is ordered to pay by order of the court.” Tex. Gov’t Code Ann. § 501.014(e)(1)-(6) (West Supp. 2010); Harrell v. State, 286 S.W.3d 315, 316 n.1 (Tex. 2009). 4