ACCEPTED 12-15-00112-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 7/13/2015 12:00:00 AM CATHY LUSK CLERK
No oral argument requested CASE NO. 12-15-00112-CR FILED IN IN THE 12th COURT OF APPEALS TYLER, TEXAS 7/12/2015 9:42:53 PM TWELFTH COURT OF APPEALS CATHY S. LUSK Clerk TYLER, TEXAS
_______________________________
MELISSA BROWNING HERNANDEZ, Appellant vs. THE STATE OF TEXAS, Appellee _______________________________
On Appeal from the 392nd Judicial District Court Henderson County, Texas
(Trial Court Case Number: B-21,601)
Honorable Judge Carter W. Tarrance, Judge Presiding
BRIEF OF APPELLANT
Linda A. Altier Altier Law Offices 1527 E. Fifth St. Tyler, Texas 75701 Tel: 903-595-4232 Fax: 903-595-0031 e-mail: altierlaw@gmail.com State Bar of Texas No.: 00783541
Attorney for Appellant, Melissa Browning Hernandez IDENTITIES OF PARTIES AND COUNSEL
State of Texas, Appellee Plaintiff in Trial Court
Ms. Melissa Browning Hernandez, Appellant Defendant in Trial Court
TRIAL COURT COUNSEL
Ms. Jenny Palmer, Attorney for State 125 N. Prairieville St. Athens, Texas 75751
Mr. Daniel Cox, Attorney for State 125 N. Prairieville St. Athens, Texas 75751
Ms. Linda A. Altier, Attorney for Defendant 1527 E. Fifth St. Tyler, Texas 75701
APPELLATE COUNSEL
Ms. Linda Altier, Attorney for Appellant 1527 E. Fifth St. Tyler, Texas 75701
Mr. R. Scott McKee, Attorney for State 125 N. Prairieville St. Athens, Texas 75751
i TABLE OF CONTENTS
Identity of Parties and Counsel ……………………………………………………i
Index of Authorities ………………………………………………………………iii
Statement of the Case ……………………………………………………………..2
Statement of Jurisdiction…………………………………………………………..3
Issues Presented ……………………………………………………………………3
POINT OF ERROR:
THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE TRIAL COURT’S ASSESSMENT OF ATTORNEY’S FEES AGAINST APPELLANT.
Statement of Facts ………..……………………………………………………….3
Point of Error Restated… . . ………………………………………………………4
Summary of the Argument.………………………………………………………..4
Argument and Authority ………………………………………………………….4
Certificate of Service………………………………………………………………7
Certificate of Compliance…………………………………………………………7
ii INDEX OF AUTHORITIES
CASES: Page
Barker v. State, No. 12-13-00032-CR, Memorandum Opinion (Tex. App.-Tyler 2015) unpublished . . . . . . . . . . . . . . . . ……………………….. 6
Johnson v. State, 405 S.W.3d 350 (Tex.App.-Tyler 2013).………………………. 5
Wolfe v. State, 377 S.W.3d 141 (Tex.App.-Amarillo, 2012, no pet)……….. . 5,6
STATUTES AND RULES:
Texas Code of Criminal Procedure, Article 26.05 (g). ….……………………… 5,6
iii CASE NO. 12-15-00112-CR
IN THE
TWELFTH COURT OF APPEALS
TYLER, TEXAS
MELISSA BROWNING HERNANDEZ, Appellant vs. THE STATE OF TEXAS, Appellee _______________________________
On Appeal from the nd 392 Judicial District Court Henderson County, Texas
(Trial Court Case Number: C-21,601)
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW MELISSA BROWNING HERNANDEZ, hereinafter
sometimes referred to as Appellant, and submits this her Brief on Appeal in the
above entitled and numbered Cause, pursuant to the provisions of the Texas Rules
of Appellate Procedure.
1 APPELLANT WAIVES ORAL ARGUMENT
STATEMENT OF THE CASE
On October 2, 2014, a grand jury indicted Melissa Browning Hernandez,
hereinafter sometimes referred to as Appellant, for Theft Over $20,000/Elderly, a
Third Degree Felony, (CR1:1-3). Ms. Linda A. Altier was appointed by the Court
to represent Appellant as an indigent Defendant. On February 2, 2015 Appellant
waived her right to a trial by jury (CR 1:21). On March 17, 2015 a pre-sentence
investigation report was completed (CR 1:23-28). On April 16, 2015 Appellant
entered her guilty plea (CR 1:29-30) and the Court heard the testimony and
evidence at a sentencing hearing. The Court found Appellant guilty and sentenced
her to Six (6) years confinement in the Texas Department of Corrections
Institutional Division, (CR 1:36-37). In the Judgement of Conviction, although
Defendant was indigent, the Court ordered her pay her Defense Attorney’s fees
(CR1:36). On April 27, 2015, Ms. Linda A. Altier was appointed to represent
indigent Defendant on appeal (CR 1:34). Appellant filed her Notice of Appeal on
April 27, 2015 (CR 1:35).
Note: For purposes of this Appeal Brief, all references to the Clerk’s Record will be noted as “CR,” followed by the volume number and page number. References to the Reporter’s Record will be noted as “RR,” followed by the volume number, page number and line as necessary. Any emphasis added by this writer will be noted as same immediately following the word or phrase emphasized by italics.
2 STATEMENT OF JURISDICTION
For the reasons above stated the Twelfth Court of Appeals holds jurisdiction.
ISSUES PRESENTED
THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE TRIAL COURT’S ASSESSMENT OF ATTORNEY’S FEES AGAINST APPELLANT.
STATEMENT OF FACTS
When initially arrested, Appellant applied for a Court Appointed Attorney to
defend her in her felony charges of Theft Over $20,000 from the Elderly, a Third
Degree Felony. Her application was approved by the trial Court and Linda A.
Altier was appointed to represent her. On February 2, 2015, Appellant signed an
agreement to plead guilty to the Court which also stated that Appellant was
represented by a Court appointed attorney (CR 1:21). Following testimony at the
sentencing trial on April 16, 2015, the Court adjudicated Appellant guilty and
sentenced her to six (6) years confinement in the Texas Department of Corrections
Institutional Division (CR 1:36-37)). In the Judgment, the trial Court also
assessed attorney fees to be paid by Appellant. On April 27, 2015, the trial Court
found that Appellant’s indigent status did not change for purposes of her appeal
and appointed Ms. Linda A. Altier for the appeal. (CR 1:35)
3 POINT OF ERROR (Restated):
THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE TRIAL COURT’S ASSESSMENT OF ATTORNEY’S FEES AGAINST APPELLANT.
SUMMARY OF THE ARGUMENT
Following the initial determination by the trial Court of Appellant’s status as
indigent, the trial Court had sufficient evidence of Appellant’s inability to repay
Court appointed Attorney’s fees, and there was no significant material change in
her financial condition following trial. Accordingly, the trial Court erred in
assessing Appellant the cost of Attorney’s fees in the Judgment of Conviction.
ARGUMENT AND AUTHORITY
The trial Court established, initially in this case, that Appellant was
indigent and without resources to retain legal counsel. Accordingly, an attorney
was appointed to represent her. Following her plea of guilty to the trial Court and
the presentation of evidence, the trial Court affirmed Appellant’s guilt and assessed
punishment at Six (6) years confinement in the Texas Department of Criminal
Justice, Institutional Division. No testimony or evidence was elicited regarding
repayment of the Attorney’s fees (RR 1:1-66). However, the trial Court did sign a
Judgment that included repayment of attorney’s fees in the amount of $750.00 (CR
1:36). A trial Court has authority to assess court appointed defense attorney’s fees
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ACCEPTED 12-15-00112-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 7/13/2015 12:00:00 AM CATHY LUSK CLERK
No oral argument requested CASE NO. 12-15-00112-CR FILED IN IN THE 12th COURT OF APPEALS TYLER, TEXAS 7/12/2015 9:42:53 PM TWELFTH COURT OF APPEALS CATHY S. LUSK Clerk TYLER, TEXAS
_______________________________
MELISSA BROWNING HERNANDEZ, Appellant vs. THE STATE OF TEXAS, Appellee _______________________________
On Appeal from the 392nd Judicial District Court Henderson County, Texas
(Trial Court Case Number: B-21,601)
Honorable Judge Carter W. Tarrance, Judge Presiding
BRIEF OF APPELLANT
Linda A. Altier Altier Law Offices 1527 E. Fifth St. Tyler, Texas 75701 Tel: 903-595-4232 Fax: 903-595-0031 e-mail: altierlaw@gmail.com State Bar of Texas No.: 00783541
Attorney for Appellant, Melissa Browning Hernandez IDENTITIES OF PARTIES AND COUNSEL
State of Texas, Appellee Plaintiff in Trial Court
Ms. Melissa Browning Hernandez, Appellant Defendant in Trial Court
TRIAL COURT COUNSEL
Ms. Jenny Palmer, Attorney for State 125 N. Prairieville St. Athens, Texas 75751
Mr. Daniel Cox, Attorney for State 125 N. Prairieville St. Athens, Texas 75751
Ms. Linda A. Altier, Attorney for Defendant 1527 E. Fifth St. Tyler, Texas 75701
APPELLATE COUNSEL
Ms. Linda Altier, Attorney for Appellant 1527 E. Fifth St. Tyler, Texas 75701
Mr. R. Scott McKee, Attorney for State 125 N. Prairieville St. Athens, Texas 75751
i TABLE OF CONTENTS
Identity of Parties and Counsel ……………………………………………………i
Index of Authorities ………………………………………………………………iii
Statement of the Case ……………………………………………………………..2
Statement of Jurisdiction…………………………………………………………..3
Issues Presented ……………………………………………………………………3
POINT OF ERROR:
THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE TRIAL COURT’S ASSESSMENT OF ATTORNEY’S FEES AGAINST APPELLANT.
Statement of Facts ………..……………………………………………………….3
Point of Error Restated… . . ………………………………………………………4
Summary of the Argument.………………………………………………………..4
Argument and Authority ………………………………………………………….4
Certificate of Service………………………………………………………………7
Certificate of Compliance…………………………………………………………7
ii INDEX OF AUTHORITIES
CASES: Page
Barker v. State, No. 12-13-00032-CR, Memorandum Opinion (Tex. App.-Tyler 2015) unpublished . . . . . . . . . . . . . . . . ……………………….. 6
Johnson v. State, 405 S.W.3d 350 (Tex.App.-Tyler 2013).………………………. 5
Wolfe v. State, 377 S.W.3d 141 (Tex.App.-Amarillo, 2012, no pet)……….. . 5,6
STATUTES AND RULES:
Texas Code of Criminal Procedure, Article 26.05 (g). ….……………………… 5,6
iii CASE NO. 12-15-00112-CR
IN THE
TWELFTH COURT OF APPEALS
TYLER, TEXAS
MELISSA BROWNING HERNANDEZ, Appellant vs. THE STATE OF TEXAS, Appellee _______________________________
On Appeal from the nd 392 Judicial District Court Henderson County, Texas
(Trial Court Case Number: C-21,601)
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW MELISSA BROWNING HERNANDEZ, hereinafter
sometimes referred to as Appellant, and submits this her Brief on Appeal in the
above entitled and numbered Cause, pursuant to the provisions of the Texas Rules
of Appellate Procedure.
1 APPELLANT WAIVES ORAL ARGUMENT
STATEMENT OF THE CASE
On October 2, 2014, a grand jury indicted Melissa Browning Hernandez,
hereinafter sometimes referred to as Appellant, for Theft Over $20,000/Elderly, a
Third Degree Felony, (CR1:1-3). Ms. Linda A. Altier was appointed by the Court
to represent Appellant as an indigent Defendant. On February 2, 2015 Appellant
waived her right to a trial by jury (CR 1:21). On March 17, 2015 a pre-sentence
investigation report was completed (CR 1:23-28). On April 16, 2015 Appellant
entered her guilty plea (CR 1:29-30) and the Court heard the testimony and
evidence at a sentencing hearing. The Court found Appellant guilty and sentenced
her to Six (6) years confinement in the Texas Department of Corrections
Institutional Division, (CR 1:36-37). In the Judgement of Conviction, although
Defendant was indigent, the Court ordered her pay her Defense Attorney’s fees
(CR1:36). On April 27, 2015, Ms. Linda A. Altier was appointed to represent
indigent Defendant on appeal (CR 1:34). Appellant filed her Notice of Appeal on
April 27, 2015 (CR 1:35).
Note: For purposes of this Appeal Brief, all references to the Clerk’s Record will be noted as “CR,” followed by the volume number and page number. References to the Reporter’s Record will be noted as “RR,” followed by the volume number, page number and line as necessary. Any emphasis added by this writer will be noted as same immediately following the word or phrase emphasized by italics.
2 STATEMENT OF JURISDICTION
For the reasons above stated the Twelfth Court of Appeals holds jurisdiction.
ISSUES PRESENTED
THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE TRIAL COURT’S ASSESSMENT OF ATTORNEY’S FEES AGAINST APPELLANT.
STATEMENT OF FACTS
When initially arrested, Appellant applied for a Court Appointed Attorney to
defend her in her felony charges of Theft Over $20,000 from the Elderly, a Third
Degree Felony. Her application was approved by the trial Court and Linda A.
Altier was appointed to represent her. On February 2, 2015, Appellant signed an
agreement to plead guilty to the Court which also stated that Appellant was
represented by a Court appointed attorney (CR 1:21). Following testimony at the
sentencing trial on April 16, 2015, the Court adjudicated Appellant guilty and
sentenced her to six (6) years confinement in the Texas Department of Corrections
Institutional Division (CR 1:36-37)). In the Judgment, the trial Court also
assessed attorney fees to be paid by Appellant. On April 27, 2015, the trial Court
found that Appellant’s indigent status did not change for purposes of her appeal
and appointed Ms. Linda A. Altier for the appeal. (CR 1:35)
3 POINT OF ERROR (Restated):
THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE TRIAL COURT’S ASSESSMENT OF ATTORNEY’S FEES AGAINST APPELLANT.
SUMMARY OF THE ARGUMENT
Following the initial determination by the trial Court of Appellant’s status as
indigent, the trial Court had sufficient evidence of Appellant’s inability to repay
Court appointed Attorney’s fees, and there was no significant material change in
her financial condition following trial. Accordingly, the trial Court erred in
assessing Appellant the cost of Attorney’s fees in the Judgment of Conviction.
ARGUMENT AND AUTHORITY
The trial Court established, initially in this case, that Appellant was
indigent and without resources to retain legal counsel. Accordingly, an attorney
was appointed to represent her. Following her plea of guilty to the trial Court and
the presentation of evidence, the trial Court affirmed Appellant’s guilt and assessed
punishment at Six (6) years confinement in the Texas Department of Criminal
Justice, Institutional Division. No testimony or evidence was elicited regarding
repayment of the Attorney’s fees (RR 1:1-66). However, the trial Court did sign a
Judgment that included repayment of attorney’s fees in the amount of $750.00 (CR
1:36). A trial Court has authority to assess court appointed defense attorney’s fees
4 against a Defendant when the trial Court determines Defendant has the resources to
pay part or all of the fees Tex.C.C.P. art. 26.05 (g). Nevertheless, in this
particular case, the trial Court did not hear any testimony or evidence from
Appellant that would reflect she had financial resources to pay the attorney fees or
that she had a change in her financial or material circumstances since the trial
Court established her indigent status. Additionally, the trial Court was aware of
Appellant’s indigent status at the beginning of her legal process since the trial
Court approved Appellant’s request for a Court appointed attorney. Further, the
trial Court acknowledged Appellant’s uninterrupted indigent status approving her
request for a Court appointed appellant attorney to process her appeal (CR 1: 31).
In Johnson v. State, 405 S.W.3d 350 (Tex.App.-Tyler 2013) the Court,
considering Tex.C.C.P. art 26.05, held that once a criminal defendant is determined
to be indigent, he is presumed to continue to be indigent for the remainder of the
proceedings unless a material change occurs in his financial circumstances. In
Wolfe v. State, 377 S.W.3d 141 (Tex.App-Amarillo 2012, no pet) the Amarillo
Court held that a trial Court must determine by some supported factual basis in the
record if a defendant has financial resources to offset in part or in whole the costs
of the Court appointed attorney fees before the trial Court can impose the attorney
fees on the defendant. Appellant argues that, as in Johnson v. State and following
5 art 26.05 the trial Court determined she was indigent and she remained indigent
during the entire criminal proceedings; and as in Wolfe v. State, there was no
factual basis in the record of a material change in her financial resources to impose
repayment of attorney fees by Appellant. In Barker v. State, No. 12-13-00032-CR,
Memorandum Opinion (Tex. App.-Tyler 2015) unpublished, an appeal from the
173rd District Court, Henderson County, Texas, the Appellant argued, as does
Appellant Melissa Browning Hernandez, that the evidence was legally insufficient
to support the trial Court’s assessment of attorney’s fees in the absence of evidence
on the record to support a finding that Barker was not indigent. The Court of
Appeals, in Barker, held there was no basis in the record to support the imposition
of attorney’s fees and sustained Barker’s issue concerning attorney fees.
For all the above reasons, this case should be reversed and remanded to the
trial Court for rehearing based on insufficient evidence to support the trial Court’s
decision to access attorney’s fees against Appellant.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays
that this Honorable Court hold that there is insufficient evidence to support the trial
Court’s assessment of attorney’s fees against Appellant and remand this case for
rehearing.
6 Respectfully Submitted,
ALTIER LAW OFFICES 1527 E. Fifth St. Tyler, Texas 75701 Tel: 903-595-4232 Fax: 903-595-0031 altierlaw@gmail.com
By: /s/ Linda A. Altier TSBN: 00783541 Attorney for Appellant Melissa Browning Hernandez
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Appellant’s Brief will be served on the Attorney for the State, R. Scott McKee, Henderson County District Attorney, 109 W. Corsicana St., Ste. 103, Athens, Texas, by hand delivery, on July 13, 2015.
/s/ Linda A. Altier
CERTIFICATE OF COMPLIANCE
In compliance with TRAP 9.4(i), the undersigned hereby certifies that the number of words contained in the above Brief of Appellant are 659; excluding caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, signature, proof of service, certification, and certificate of compliance.