Melissa Browning Hernandez v. State

Opinion

ACCEPTED

12-15-00112-CR

TWELFTH COURT OF APPEALS

TYLER, TEXAS

9/30/2015 3:31:04 PM

Pam Estes

CLERK

ORAL ARGUMENT NOT REQUESTED

FILED IN

NO. 12-15-00112-CR

12th COURT OF APPEALS TRIAL COURT CAUSE NO. B-21,601 TYLER, TEXAS 9/30/2015 3:31:04 PM

PAM ESTES

IN THE 12TH COURT OF APPEALS Clerk

TYLER,TEXAS

MELISSA BROWNING HERNANDEZ Appellant

vs.

THE STATE OF TEXAS

Appellee

APPEAL FROM THE 173 rd JUDICIAL DISTRICT COURT HENDERSON COUNTY, TEXAS

CAUSE NO. B-21,601

HONORABLE CARTER W. TARRANCE, JUDGE PRESIDING

BRIEF FOR THE STATE

Daniel Cox Assistant District Attorney Henderson County 109 W. Corsicana St., Ste. 103 Athens, Texas 75751 State Bar #24074085 903.675.6100

IDENTIFICATION OF THE PARTIES AND COUNSEL ApPELLANT:

Melissa Browning Hernandez ApPELLANT'S COUNSEL:

Linda Altier 1527 E. Fifth St.

Tyler, Texas 75701 903.592.4232

ApPELLEE:

The State of Texas ApPELLEE'S COUNSEL:

Jenny Palmer Henderson County District Attorney's Office 109 West Corsican Street Athens, Texas 75751 903.675.6100 903.675.6196 (Fax)

Daniel Cox Henderson County District Attorney's Office 109 West Corsican Street Athens, Texas 75751 903.675.6100 903.675.6196 (Fax)

PRESIDING JUDGE(S):

The Honorable Judge Carter W. Tarrance

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TABLE OF CONTENTS

SUBJECT MAITER: PAGE: Identification of the Parties and Counsel----------------------------------------------! 1ralJle ofContents---------------------------------------------------------------------------2 Index of Authorities ------------------------------------.-------.----------····---·--------3 Statement of the Case----------------------------------------------------------------------4 Appellant's Issues Presented---------------------------------------------------------- 4-5 Argument-------------------------------------------------------------------------------------5 Conclusion-----------------------------------------------------------------------------------5 Prayer---------------------------------------------------------------------------------------- 6 Certificate of Service---------------------------------------------------------------------- 7 Certificate of Compliance---------------------------------------------------------------- 7

INDEX OF AUTHORITIES

CASES

MEYER V. STATE, 309 S.W.3D 552 (TEX.-CRIM.-App. 2010) ............................5

Page 30f8

NO. 12-15-00112-CR

MELISSA BROWNING HERNANDEZ § IN THE 12TH §

VS. § COURT OF APPEALS §

THE STATE OF TEXAS § TYLER, TEXAS

ApPELLEE'S BRIEF:

TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES THEREOF:

Comes now the State of Texas, by and through her attorney of record, Henderson County Assistant District Attorney Daniel Cox, and respectfully submits this brief on appeal.

STATEMENT OF THE CASE:

Appellant was charged by indictment for the offense of Theft Over $20,000 From an Elderly Person (C.R. 2:1-3). The trial Court found that the appellant was indigent and appointed Linda Altier to represent the appellant (CR. 1:21). On February 5, 2015, the appellant waived her right to a trial by jury, entered a gUilty plea and elected to have the trial Court assess punishment (CR. 1:23-28). On April 16,2015, after the completion of a pre-sentence investigation, the trial Court heard evidence at a sentencing hearing (CR. 1: 36-39). At the conclusion of the hearing, the trial Court sentenced the appellant to six years confinement in the Texas Department of Corrections (CR. 1:26-29). Additionally, the trial Court ordered that the appellant repay the cost of the court appointed attorney's fees as a part of the appellant's sentence (C.R. 1:36-37)

APPELLANT'S ISSUES PRESENTED:

I. Was the evidence sufficient to support the trial court's order for Appellant to pay attorney's fees?

The State feels that the judgment should be modified to remove the requirement of repayment of attorney's fees. Under Meyer v. State, once a defendant is found by the trial court to be indigent, there must be an affirmative finding by the trial court of an ability to repay court appointed attorney's fees. (Meyer v. State, 309 S.W.3d 552 (Tex.-Crim.-App. 2010).

At the punishment hearing, there was no evidence presented by either party that would show an ability to pay. As such, there is no evidence in the record to show that the appellant was no longer indignant at the time and able to repay attorney's fees.

CONCLUSION

There is an absence of evidence to show that Appellant, after being found indigent and sentenced to the penitentiary, is "able to pay" or has any financial resources that enable her to pay the attorney's fees assessed in the court's order and judgment as required. We concur that the judgment should be modified in accordance with the request of Appellant to delete attorney's fees and court costs.

PRAYER

WHEREFORE, premises considered, the State, for the reasons set forth in this brief, requests that this Honorable Court orders the judgment be reformed and that the requirement to pay attorney's fees be deleted.

Daniel Cox

Assistant District Attorney Henderson County Judicial Complex 109 W. Corsicana Street, Ste. 103 Athens, Texas 75751

Phone: (903) 675-6100

Facsimile: (903) 675 - 6196 State Bar No. 24074085

CERTIFICATE OF SERVICE

I, Daniel Cox, do hereby certify that a true and correct copy of the foregoing Brief for the State has been served upon the Appellant, Melissa Browning Hernandez, by emailing a copy of the same to his attorney of record Linda Altier at on this the _ day of , 2015.

Henderson County, Texas

CERTIFICATE OF COMPLIANCE

Pursuant to Rule 9.4(i)(3), the undersigned attorney certifies this rief complies with the length compliance of the Texas Rules of Appellate that the brief has 866 words.

ssistant District Attorney Henderson County, Texas

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