William Earl Johnson v. State

• Court: Court of Appeals of Texas
• Decided: February 22, 2005
• Docket: 07-04-00531-CR
• Status: Published

Opinion

NO. 07-04-0531-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

FEBRUARY 22, 2005

______________________________

WILLIAM EARL JOHNSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

_________________________________

FROM THE 320^TH DISTRICT COURT OF POTTER COUNTY;

NO. 46825-D; HON. DON EMERSON, PRESIDING _______________________________

Before QUINN, REAVIS and CAMPBELL, JJ.

Appellant, William Earl Johnson, appeals from an order revoking his community supervision and sentencing him to seven years imprisonment for the possession of a controlled substance. He originally pled guilty pursuant to a plea bargain agreement, was convicted of that offense, and was placed on community supervision for seven years. Thereafter, the State filed a motion to revoke wherein it alleged that he violated several terms of his community supervision. After a hearing during which appellant admitted to violating those terms, the court entered the challenged order.

Appellant's appointed counsel filed a motion to withdraw, together with an Anders ⁽¹⁾ brief in which he certified that, after diligently searching the record, he concluded that the appeal was without merit. Along with his brief, counsel attached a copy of a letter sent to appellant informing him that there were no grounds of appeal and of appellant's right to file a response or pro se brief. By letter dated January 18, 2005, this court also notified appellant of his right to tender his own brief or response and set February 17, 2005, as the deadline to do so. To date, appellant has filed neither a response, brief, or request for an extension of time.

In compliance with the principles enunciated in Anders, appellate counsel discussed four potential areas for appeal. They involved 1) the effectiveness of his trial counsel, 2) the failure to request permission to appeal, 3) the abuse of discretion by the trial court in finding appellant in violation of the terms of his probation, and 4) the abuse of discretion by the trial court in sentencing appellant. However, counsel explained why each argument lacked merit. Furthermore, the record illustrates that appellant admitted committing the acts described in the State's motion to revoke. Thus, the trial court had evidentiary basis for its decision to revoke probation. Anthony v. State, 962 S.W.2d 242, 246 (Tex. App.-Fort Worth 1998, no pet.) (holding that the admission by the defendant to a parole officer that he violated his probation was sufficient evidence to revoke that probation). Appellant was also sentenced within the range allowed by law. See Tex. Health & Safety Code Ann. §481.115(c) (Vernon 2003) (possession of an amount of one gram or more but less than four grams is a third degree felony); Tex. Pen. Code Ann. §12.34 (Vernon 2003) (stating that punishment for a third degree felony is confinement for not more than ten years or less than two). Finally, appellant did not request permission to appeal and did not appeal from his original conviction.

We have conducted our own review of the record to assess the accuracy of appellate counsel's conclusions and to uncover any error, reversible or otherwise, pursuant to Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991). Our review has failed to reveal error.

Accordingly, the motion to withdraw is granted, and the judgment is affirmed.

Brian Quinn

Justice

Do not publish.

1. Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

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NO. 07-09-00091-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

AUGUST 17, 2011

ALTON ARMSTRONG, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

 FROM THE 251ST DISTRICT COURT OF POTTER COUNTY;

NO. 50,712-C; HONORABLE ANA ESTEVEZ, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

            Appellant, Alton Armstrong, originally appealed the trial court’s assessment of court costs against him on a number of grounds.  We initially sustained the assessment of court costs against appellant.  See Armstrong v. State, 320 S.W.3d 479, 481 (Tex.App.—Amarillo 2011).  Further, we declined to address appellant’s issue regarding the sufficiency of the evidence to support the trial court’s assessment of attorney’s fees as part of court costs.  Id. at 481-82.  The Texas Court of Criminal Appeals reversed our decision not to consider the evidentiary sufficiency to support the order regarding attorney’s fees.  See Armstrong v. State, 340 S.W.3d 759, 2011 Tex. Crim. App. LEXIS 873, at *19 (Tex.Crim.App. 2011).  This matter was remanded to this Court from the Texas Court of Criminal Appeals to consider the trial court’s assessment of attorney’s fees against appellant.  Id. 

Analysis

            Appellant contends that there is insufficient evidence to support the order for him to repay the cost of his court-appointed attorney.  The Texas Code of Criminal Procedure provides, pursuant to article 26.05(g),[1] that:

If the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the defendant to pay during the pendency of the charges or, if convicted, as court costs the amount that it finds the defendant is able to pay.

            The record reflects that appellant has made a number of appearances before the trial court, both on the original offense and the subsequent adjudication proceedings.  At each stage of the proceeding, appellant has been found to be indigent and an attorney has been appointed to represent him.  Further, after adjudication of the primary offense, appellant was appointed counsel for appeal and a record was provided at no cost to him.  However, regarding any change in his ability to pay for legal services provided, the record is totally devoid of any evidence.  As we read the record, appellant was indigent when initially charged and remained that way through this appeal.  See  art. 26.04(p); Mayer v. State, 309 S.W.3d 552, 557 (Tex.Crim.App. 2010).  In light of such a record, it is apparent that the evidence does not support the ordering of repayment of attorney’s fees.  See id.  Accordingly, we sustain appellant’s issue regarding the sufficiency of the evidence to support the order requiring appellant to repay the county for the costs of appointed counsel.[2]

Conclusion

            The judgment of the trial court is modified to delete the requirement that appellant repay the costs of his court-appointed attorney, assessed at $1,900.00 as reflected in the Potter County District Clerk’s bill of cost, and affirmed as modified.

                                                                                                            Mackey K. Hancock

Do not publish. 

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[1] Further reference to the Texas Code of Criminal Procedure will be by reference to “art. ____.”

[2] Having sustained appellant’s original second issue, we need not address appellant’s third issue.