ACCEPTED 12-15-00088-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 6/16/2015 9:58:44 PM CATHY LUSK CLERK
ORAL ARGUMENT NOT REQUESTED
NO. 12-15-00088-CR FILED IN 12th COURT OF APPEALS TYLER, TEXAS IN THE COURT OF APPEALS 6/16/2015 9:58:44 PM 12TH JUDICIAL DISTRICT CATHY S. LUSK Clerk TYLER, TEXAS
SIDNEY LYNCH, APPELLANT
VS.
THE STATE OF TEXAS, APPELLEE
ON APPEAL IN CAUSE NUMBER 007-0526-14 FROM THE 7TH JUDICIAL DISTRICT COURT OF SMITH COUNTY, TEXAS HONORABLE KERRY RUSSELL, JUDGE PRESIDING
APPELLANT’S BRIEF
JAMES W. HUGGLER, JR. 100 E. FERGUSON, SUITE 805 TYLER, TEXAS 75702 903-593-2400 STATE BAR NUMBER 00795437
ATTORNEY FOR APPELLANT IDENTITY OF PARTIES AND COUNSEL
APPELLANT: Sidney Lynch
APPELLANT’S TRIAL COUNSEL: Kurt Noell, at trial 231 South College Tyler, Texas 75702 903-597-9069
John Jarvis, at revocation 326 South Fannin Tyler, Texas 75702 903-592-6576
APPELLANT’S APPELLATE COUNSEL James Huggler 100 E. Ferguson, Suite 805 Tyler, Texas 75702 903-593-2400 903-593-3830 (fax)
APPELLEE The State of Texas
APPELLEE’S TRIAL COUNSEL Bryan Jiral Smith County Criminal District Attorney’s Office 100 N. Broadway, 4th Floor Tyler, Texas 75702 903-590-1720 903-590-1719 (fax)
APPELLEE’S APPELLATE COUNSEL Michael West Smith County Criminal District Attorney’s Office ii 100 N. Broadway, 4th Floor Tyler, Texas 75702 903-590-1720 903-590-1719 (fax)
iii TABLE OF CONTENTS PAGE
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Issue One: By prejudging the sentence, the trial court violated Mr. Lynch’s right to due process of law under the United States Constitution.
Issue Two: By prejudging the sentence, the trial court violated Mr. Lynch’s right to due course of law under the Texas Constitution.
Issue Three: The trial court erred in imposing attorney fees following a finding that Mr. Lynch was indigent and was appointed counsel.
Issue Four: The District Clerk erred in including attorney fees following a finding that Mr. Lynch was indigent and was appointed counsel.
STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ISSUE ONE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
iv ISSUE TWO, RESTATED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. The Law Requires a Neutral Tribunal. . . . . . . . . . . . . . . . . . . . 5 B. Application to These Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 C. Structural Error Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 D. Remedy and Relief Requested.. . . . . . . . . . . . . . . . . . . . . . . . . . 9
ISSUE THREE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ISSUE FOUR, RESTATED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
A. Law on Attorney’s Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 B. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 C. Application to These Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 D. Remedy and Relief Requested.. . . . . . . . . . . . . . . . . . . . . . . . . 16
PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
v TABLE OF AUTHORITIES CONSTITUTIONS U.S. CONST. Amend. XIV.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 TEX. CONST. art. I, §19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
STATUTES TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West 2013).. . . . . . . . . 10, 11 TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West 2013). . . . . . . . . . . . . 10 TEX. CODE CRIM. PROC. ANN. art. 103.001 (West 2013). . . . . . . . . . . . . 11 TEX. CODE CRIM. PROC. ANN. art. 103.006 (West 2013). . . . . . . . . . . . . 12 TEX. GOV’T CODE ANN. §§102.010-.142 (West 2013).. . . . . . . . . . . . . . . 11 TEX. GOV’T CODE ANN. §102.021 (West 2013).. . . . . . . . . . . . . . . . . . . . 11 TEX. PENAL CODE ANN. §46.04(a)(1) (West 2012). . . . . . . . . . . . . . . . . . . 1
CASES Armstrong v. State, 340 S.,W.2d 759 (Tex. Crim. App. 2011). . . . . 11, 12 Arizona v. Fulminante, 4449 U.S. 279, 111 S. Ct. 1246, 113 L.Ed.2d 302 (1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Ex parte Brown, 158 S.W.3d 449 (Tex. Crim. App. 2005). . . . . . 5, 6, 8, 9 Brumit v. State, 206 S.W.3d 639 (Tex. Crim. App. 2006). . . . . . . . . . . . 5 DeLeon v. Aguilar, 127 S.W.3d 1 (Tex. Crim. App. 2004). . . . . . . . . . . . 6 Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L.Ed.2d (1973). . 5 Gonzales v. Johnson, 994 F. Supp. 759, 762 (N.D. Tex. 1997).. . . . . . . . 6 Howell v. State, 175 S.W.3d 786 (Tex. Crim. App. 2005). . . . . . . . . . . 13 Hull v. State, 67 S.W.3d 215 (Tex. Crim. App. 2002).. . . . . . . . . . . . . . . 9 Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 vi Johnson v. State, 405 S.W.3d 350 (Tex. App. – Tyler 2013, no pet).10, 13 Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014). . . . . . . . . . 12 Lagrone v. State, 84 Tex. Crim. 609, 209 S.W. 411 (1919). . . . . . . . . . . 6 Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2013). . . . . . . . . 11, 13 McClenan v. State, 661 S.W.2d 108 (Tex. Crim. App. 1983). . . . . . . . . . 6 Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991). . . . . . . 13 Owen v. State, 352 S.W.3d 542 (Tex. App. – Amarillo 2011, no pet.). . 12 United States v. Sciuto, 531 F.2d 842, 846 (7th Cir. 1976). . . . . . . . . . . . 8 Texeira v. State, 89 S.W.3d 190 (Tex. App. – Texarkana 2002, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009). . . . . . . . . 11 Williams v. State, 332 S.W.3d 694 (Tex. App. – Amarillo 2011, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
RULES TEX. R. APP. P. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 TEX. R. APP. P. 38.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
vii NO. 12-15-00088-CR
SIDNEY LYNCH ,§ IN THE COURT OF APPEALS APPELLANT § § VS. § 12TH JUDICIAL DISTRICT § THE STATE OF TEXAS, § APPELLEE § TYLER, TEXAS
TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES THEREOF:
Sidney Lynch (“Appellant”), by and through his attorney of record,
James Huggler, and pursuant to the provisions of TEX. R. APP. PROC.38,
et seq., respectfully submits this brief on appeal.
STATEMENT OF THE CASE
Appellant was indicted for the felony offense of unlawful possession
of a firearm by a felon. I CR 4.1 TEX. PENAL CODE ANN. §46.04(a)(1)
References to the Clerk’s Record are designated “CR” with a roman numeral preceding CR specifying the correct volume and an arabic numeral following “CR” specifying the correct page in the record.
1 (West 2012). He entered a plea of guilty pursuant to an agreement and
was received an eight year sentence probated for four years. I CR 33, 48-
49; VI RR 15-16.
The State filed an application to proceed to final adjudication. I CR
50-54. Mr. Lynch entered a true plea to each allegation. I CR 62; VII RR
12. After hearing the revocation, the court sentenced Appellant to 8 years’
confinement in the Texas Department of Criminal Justice, Institutional
Division. I CR 67-68; VII RR 17.
Notice of appeal was timely filed on March 24, 2015. I CR 72. This
brief is timely filed on or before June 19, 2015.
ISSUES PRESENTED
Issue One: By prejudging the sentence, the trial court violated Mr. Lynch’s right to due process of law under the United States Constitution.
Issue Two: By prejudging the sentence, the trial court violated Mr. Lynch’s right to due course of law under the Texas Constitution.
Issue Three: The trial court erred in imposing attorney fees following a finding that Mr. Lynch was indigent and was appointed counsel.
Issue Four: The District Clerk erred in including attorney fees following a finding that Mr. Lynch was indigent and was appointed counsel.
2 STATEMENT OF THE FACTS
Sidney Lynch was charged with being a convicted felon in possession
of a firearm. I CR 1. He entered a plea of guilty pursuant to an
agreement for eight years confinement probated for four years. I CR 33.
The trial court followed the agreement. VI RR 15. During this hearing,
as discussed below, the trial court promised that if Mr. Lynch appeared
on an application to revoke, he would receive the maximum eight year
sentence.
The State filed an application to revoke his probation. I CR 50-54.
Mr. Lynch entered a plea of true to each allegation. I CR 62; VII RR 12.
As promised, the trial court assessed the eight year sentence.
Counsel has reviewed the record in the case thoroughly, and
presents four issues. A discussion of relevant facts for those issues is
included in the argument section of this brief.
3 SUMMARY OF ARGUMENT
The first two issues raised relate to the trial court’s statements made
to Mr. Lynch prior to sentencing that if he was ever brought before the
court again, he would receive the maximum sentence possible under the
plea agreement, eight years confinement. The court made it clear that
there would no reason, no excuse, no justification, or mitigation possible,
that if Mr. Lynch appeared before the trial court, he would receive an
eight year sentence. This prejudgment of a criminal defendant has been
held to violate a defendant’s due process right to an impartial tribunal
The third and fourth issues relate to the improper assessment of
attorney’s fees as costs. This Court is well aware of the issues, however,
this case is unusual in that the amounts assessed between the two
judgments do not correlate with the amounts in the bill of costs and they
reflect dramatically different amounts paid by Mr. Lynch.
4 ARGUMENT
Issue One, Restated: By prejudging the sentence, the trial court violated Mr. Lynch’s right to due process of law under the United States Constitution.
Issue Two, Restated: By prejudging the sentence, the trial court violated Mr. Lynch’s right to due course of law under the Texas Constitution.
A. The Law Requires a Neutral Tribunal
The Fourteenth Amendment provides that the state may not
“deprive any person of life, liberty, or property, without due process of law.
U.S. CONST. Amend. XIV. No citizen of this State shall be deprived of life,
liberty, property, privileges or immunities, or in any manner
disenfranchised, except by the due course of the law of the land. TEX.
CONST. art. I, §19. Trial courts have wide discretio0n in determining the
proper punishment in a revocation hearing, but due process guarantees
that the trial court conduct itself in a neutral and detached manner.
Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1762, 36 L. Ed. 2d
(1973); Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). A
trial court’s arbitrary refusal to consider the entire range of punishment
in a particular case violates due process. Ex parte Brown, 158 S.W.3d
449, 456 (Tex. Crim. App. 2005); Brumit at 645. 5 A defendant is entitled to a probation revocation hearing before a
judicial officer who has not predetermined that probation should be
revoked or that a particular punishment should be imposed. Gonzales v.
Johnson, 994 F. Supp. 759, 762 (N.D. Tex. 1997).
The law contemplates that the trial judge shall maintain an attitude
of impartiality throughout the trial. Lagrone v. State, 84 Tex. Crim. 609,
209 S.W. 411, 415 (1919). A court’s arbitrary refusal to consider tyhe
entire range of punishment would constitute a denial of due process.
McClennan v. State, 661 S.W.2d 108 (Tex. Crim. App. 1983), overruled on
other grounds by DeLeon v. Aguilar, 127 S.W.3d 1 (Tex. Crim. App. 2004).
A court denies due process and due course of law if it arbitrarily refuses
to consider the entire range of punishment for an offense or refuses to
consider the evidence and imposes a predetermined punishment. Teixeira
v. State, 89 S.W.3d 190, 192 (Tex. App. – Texarkana 2002, pet. ref’d).
A court denies due process and due course of law if it arbitrarily
refuses to consider the entire range of punishment for an offense or
refuses to consider the evidence and imposes a predetermined
punishment. Ex parte Brown, 158 S.W.3d 449, 454 (Tex. Crim. App.
2005); McClennan v. State, 661 S.W.2d at 110. 6 B. Application to These Facts
The trial court made it very clear that he did not agree with the plea
agreement in this case. “Your history tells me you will fail on probation.
Your history in your presentence tells me you’ll fail on your probation. VI
RR 5, ln. 2-4. During that hearing the trial court referenced a bond
violation and did not believe Mr. Lynch’s explanation. VI RR 6, lines 8-25.
Because what I’m going to do is - - I’ll put in my PSI that I had this discussion - - I do it - - unfortunately, it seems to be more and more regularly, unfortunately - - but I put in my presentence that the person has, number one, I feel, lied to me; number two, that they’re a horrible candidate for probation based upon their history; and that we’ve had this discussion about the State maybe giving them a minimum sentence offer to not waste the system’s resources on that person.
And that if they come back and if the State can prove that you violated your probation, I don’t entertain any negotiations. Instead, you’re telling me today, that if you’re not completely successful on your probation, you want me to sentence you to 8 years in the penitentiary when you come back. VI RR 7, ln. 17 - 8, ln. 7.
On August 27, 2014, the docket sheet shows a handwritten entry: “If
revocation filed, no recommendations will be considered. 8 yrs to be
given”. I CR 94, emphasis added. When Mr. Lynch was placed on
probation, the court twice asked of him: “What happens if you fail on your
probation?” The correct response was “It will be 8 years TDC.” VI RR 15,
7 ln. 11-18.
In this case, the trial court prejudged Mr. Lynch for any future
revocation proceeding and not only in the transcript, but on the docket
sheet itself. By promising to assess an eight year sentence if Mr. Lynch
ever appeared on a revocation the trial court violated his right to due
process of law and due course of law.
As the Court of Criminal Appeals stated: a trial judge must
constantly remember that he may one day be cast in the role of trier of
fact in a revocation proceeding, and in that event he will be required to
disqualify himself unless he has refrained from prejudgment. Ex parte
Brown, 158 S.W.3d at 454, citing United States v. Sciuto, 531 F.2d 842,
846 (7th Cir. 1976).
A trial court’s arbitrary refusal to consider the entire range of
punishment in a particular case violates due process. A trial judge may
certainly impress upon a prospective probationer the seriousness of the
possible consequences of a failure to abide by the terms and conditions of
probation, but it is an altogether different thing to promise to impose the
maximum punishment if a prospective probationer fails to abide by the
terms of probation and then carrying through on that promise. Ex parte 8 Brown, 158 S.W.3d at 456-57.
C. Structural Error Analysis
These errors in conjunction constitute structural error and need not
be preserved by contemporaneous objection and require a reversal of these
judgments. Structural error affects the conduct of the trial and is not
subject to a harm analysis. Arizona v. Fulminante, 449 U.S. 279, 309-310,
111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Structural error has been found
in the deprivation of the right to an impartial judge. Id.
It is anticipated that the State will object to these two points of error
by arguing that there were no timely objections to the trial court’s
comments. Hull v. State, 67 S.W.3d 215 (Tex. Crim. App. 2002).
However, that analysis side-steps the issue of whether or not this is
structural error. If it is structural error as Appellant contends, no
contemporaneous objection is necessary.
D. Remedy and Relief Requested
The judgment of conviction should be reversed and the case
9 remanded to the trial court, the trial court should be recused and a
neutral magistrate should hear the revocation proceedings and assess
Issue Three Restated: The trial court erred in imposing attorney fees following a finding that Mr. Lynch was indigent and was appointed counsel.
Issue Four, Restated: The District Clerk erred in including attorney fees following a finding that Mr. Lynch was indigent and was appointed counsel.
A. Law on Attorney’s Fees
A trial court has the authority to assess attorney’s fees against a
criminal defendant who received court-appointed counsel. TEX. CODE
CRIM. PROC. ANN. art. 26.05(g)(West 2013). Once a defendant has been
determined to be indigent, he is presumed to remain indigent for the
remainder of the proceedings unless a material change in his financial
circumstances occurs. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West
2013). Before attorney’s fees may be imposed, the trial court must make
a determination supported by some factual basis in the record that the
defendant has financial resources to enable him to offset in whole or in
part the costs of the legal services provided. Johnson v. State, 405 S.W.3d 10 350, 354 (Tex. App. – Tyler 2013, no pet). If the record does not show any
material change in the defendant’s financial circumstances, the evidence
will be insufficient to support the imposition of attorney’s fees. TEX. CODE
CRIM. PROC. ANN. art. 26.04(p); Mayer v. State, 309 S.W.3d 552, 553, 557
(Tex. Crim. App. 2013).
Court costs are pre-determined, legislatively-mandated obligations
resulting from a conviction. See, e.g., TEX. GOV'T CODE ANN. §§
102.001-.142 (West 2013) (setting forth various court costs that a
convicted person "shall" pay). A sentencing court shall impose the
statutory court costs at the time a defendant is sentenced. Armstrong v.
State, 340 S.W.3d 759 (Tex. Crim. App. 2011); TEX. GOV’T CODE ANN.
§102.021 (West 2013). Court costs are not punitive in nature and do not
have to be included in an oral pronouncement of a sentence. Weir v.
State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009).
A cost is not payable by the person charged with the cost until a
written bill is produced or is ready to be produced, containing the items
of cost, signed by the officer who charged the cost or the officer who is
entitled to receive payment of the cost. TEX. CODE CRIM. PROC. ANN. art.
103.001 (West 2013). The clerk of the trial court is required to keep a fee 11 record, and a statement of an item therein is prima facie evidence of the
correctness of the statement. Owen v. State, 352 S.W.3d 542, 548 (Tex.
App.—Amarillo 2011, no pet.) (citing TEX.CODE CRIM. PROC. ANN. art.
103.009(a), (c)). Until a certified bill of costs has been made part of the
record, a defendant has no obligation to pay court costs. Owen, 352
S.W.3d at 547 (citing Armstrong, 340 S.W.3d at 765; Williams v. State,
332 S.W.3d 694, 699 (Tex. App. – Amarillo 2011, pet. denied).
If a criminal action is appealed, "an officer of the court shall certify
and sign a bill of costs stating the costs that have accrued and send the
bill of costs to the court to which the action or proceeding is transferred or
appealed." TEX. CODE CRIM. PROC. ANN. art. 103.006 (West 2013).
B. Standard of Review
The imposition of court costs upon a criminal defendant is a
“nonpunitive recoupment of the costs of judicial resources expended in
connection with the trial of the case.” Johnson v. State, 423 S.W.3d 385,
390 (Tex. Crim. App. 2014). When the imposition of court costs is
challenged on appeal, the court reviews the assessment of costs to
determine if there is a basis for the cost, not to determine if there is 12 sufficient evidence offered at trial to prove each cost. Id.
The standard for reviewing a legal sufficiency challenge is whether
any rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. at
315-16, 99 S. Ct. at 2786-787; see also Mayer v. State, 309 S.W.3d 552,
557 (Tex. Crim. App. 2010)(sufficiency review of evidence to support order
of repayment of attorney fees as costs).
A challenge to a withdrawal of funds notification is reviewed for an
abuse of discretion. Williams, 332 S.W.3d at 698. A trial court abuses
its discretion when it acts “without reference to any guiding rules and
principles. Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005);
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991). The
reviewing court may modify a withdrawal order on direct appeal if the
evidence is insufficient to support the assessment of court costs. Johnson
v. State, 405 S.W.3d at 355.
C. Application to These Facts
Mr. Lynch appeared for his first appearance without counsel. He
was instructed by the court to attempt to retain counsel. II RR 4-5. 13 Initially, Mr. Lynch had apparently retained attorney Duane Stephens.
III RR 4. The court expressed some surprise because of a belief that Mr.
Stephens had retired. III RR 4. At the next hearing, Mr. Lynch confirmed
that Mr. Stephens would not be representing him and sought appointed
counsel. IV RR 4-5.
Mr. Lynch has been represented at all times following the initial
appearance by appointed counsel. The record contains three different
orders appointing counsel. I CR 31, 58 and 81. The record contains one
pauper’s oath which was granted by the trial court and was not contested
during any of the proceedings in this case. I CR 29-30. Following this
pauper’s oath application, Mr. Lynch was appointed counsel. I CR 31.
Another attorney was appointed for the revocation proceedings. I CR 58.
A third attorney was appointed for the appeal of this case. I CR 81. A
motion was filed with the trial court seeking a free reporter’s record on
appeal. I CR 88-90. This motion was granted by the trial court without
opposition from the State of Texas. I CR 91.
The application to proceed to final adjudication included an
allegation that Mr. Lynch failed to pay court cost (sic), including any
appointed counsel fees. I CR 52, ¶ 4. The trial court also commented on 14 the failure to pay court costs. VII RR 21, lines 12-13.
The September 12, 2014 order placing Mr. Lynch on probation
included $614.00 in court costs. I CR 46-47. The bill of costs prepared by
the District Clerk’s Office on March 18, 2015 matches this amount. I CR
70. The final judgment signed March 16, 2015 reflects a balance of
$269.00 for court costs, even though the bill of costs reflects a balance of
$594.00. I CR 67-68 and 70. So while the judgments in the case reflect
that $345 was paid, the bill of costs reflect that only $20 was paid.
The majority of the items listed on the bill of costs appear to be
properly assessed costs. I CR 70. The properly assessed costs equal
$314.00 in court costs. However, a $300 fee was assessed for receiving
appointed counsel. I CR 73.
There is no evidence to contest the finding that Mr. Lynch was found
indigent. Assessment of attorney’s fees following a finding of indigence is
improper. While the final judgment does not include the attorney’s fee, the
bill of costs does, and court costs, including attorney fees were improperly
collected by the probation department impacting, among other things the
restitution owed. Why the bill of costs contains the fee after the final
judgment was prepared and signed is not known. If the two judgments are 15 correct, then Mr., Lynch paid $345, of which $314 was proper. If the bill
of costs is correct, Mr. Lynch currently owes Smith County $594.00 of
which $294 is proper.
The fee seeking reimbursement for the appointed attorney was
improperly assessed by the court and the clerk’s office. The judgment and
the bill of costs should be modified to reflect the amount of proper taxable
court costs due. Unfortunately, in this case, the record is unclear as to
exactly how much Mr. Lynch paid towards court costs. The bill of costs
reflect $20, but the difference in costs assessed on the judgments reflect
a payment of $345. In this case, the Court should remand for a hearing
to determine exactly how much Mr. Lynch paid the probation department,
and what amounts were transferred to the District Clerk’s Office.
16 PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully
pays that the trial court’s judgment be reversed and rendered in
accordance with the first issue, or that, in the alternative, the judgment
of the trial court be modified in accordance with the third and fourth; or
in the alternative remanded for a hearing to determine exactly how much
Mr. Lynch paid and how it was allocated.
Respectfully submitted,
/s/ James Huggler James W. Huggler, Jr. State Bar Number 00795437 100 E. Ferguson, Suite 805 Tyler, Texas 75702 903-593-2400 903-593-3830 fax
ATTORNEY FOR APPELLANT
17 CERTIFICATE OF SERVICE
A true and correct copy of the foregoing Brief of the Appellant has been
forwarded to counsel for the State by regular mail or electronic filing on
this the 16th day of June, 2015.
/s/ James Huggler James W. Huggler, Jr.
Attorney for the State: Mr. Mike West Smith County Criminal District Attorney’s Office 100 N. Broadway, 4th Floor Tyler, Texas 75702
CERTIFICATE OF COMPLIANCE
I certify that in compliance with TEX. R. APP. P. 9.4, this document
contains 4,194 words as calculated by Corel WordPerfect version X5 using
14 point Century font and complies with the other requirement of Rule
9.4.