Opinion
No. 04-16-00388-CR
05-10-2017
Raul Aguero AYALA, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. B14466
Honorable M. Rex Emerson, Judge Presiding Opinion by: Marialyn Barnard, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice MOTION TO WITHDRAW GRANTED; AFFIRMED AS MODIFIED
Appellant Raul Aguero Ayala entered an open plea of guilty to the offense of evading arrest with a vehicle with a deadly weapon finding, enhanced by a prior felony conviction. The State agreed to a cap of fifteen years' confinement. The trial court, in accordance with the plea agreement, sentenced Ayala to fourteen year's confinement. Ayala then perfected this appeal.
Ayala's court-appointed appellate attorney filed a motion to withdraw and a brief in which he raises no arguable points of error and concludes this appeal is without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967), High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). Counsel provided proof Ayala was given a copy of the brief, the motion to withdraw, the appellate record, and was informed of his right to file his own brief. Ayala filed a brief on his own behalf in which he appears to allege: (1) there is insufficient evidence to support his guilty plea — specifically as to the enhancement allegation and the deadly weapon finding; (2) the sentence imposed was improperly based on bias and prejudice relating to his prior criminal history; and (3) the enhancement as alleged in the indictment is improper.
When an Anders brief and a subsequent pro se brief are filed, we must review the entire record and determine (1) the appeal is without merit and issue an opinion explaining there is no reversible error, or (2) there are arguable grounds for appeal and issue an opinion remanding the cause to the trial court for appointment of new appellate counsel. Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009) (citing Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005) (holding court of appeal may address merits of issues raised by pro se only after any arguable grounds have been briefed by new appointed counsel)).
We have carefully reviewed the record, counsel's brief, and Ayala's brief and find no reversible error and agree with counsel the appeal is without merit. See id. However, in our review, we note that when the trial court orally pronounced sentence, it stated Ayala was to be confined for fourteen years. The judgment conflicts with the oral pronouncement and imposes a sentence of thirteen years' confinement. The judgment, including the sentence, is merely the written embodiment of the trial court's oral pronouncement. Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). When there is a conflict between the oral pronouncement and the written judgment, the oral pronouncement controls. Id. Therefore, we order the written judgment modified to reflect a sentence of fourteen years. See id.
Moreover, the judgment assesses attorney's fees against Ayala in the amount of $1,646.26. 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 Supp. 2016). But once a criminal 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). 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 the financial resources to enable him to offset in part or in whole the costs of the legal services provided. See Wiley v. State, 410 S.W.3d 313, 317 (Tex. Crim. App. 2013); Wilmurth v. State, 419 S.W.3d 553, 555 (Tex. App.—San Antonio 2013, no pet.). If the record does not show that the defendant's financial circumstances materially changed, there is no basis for the imposition of attorney's fees. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Wiley, 410 S.W.3d at 317; Wilmurth, 419 S.W.3d at 555.
Here, the trial court determined Ayala was indigent for purposes of trial and appointed counsel. Thereafter, the trial court entered findings of fact and conclusions of law in which he determined Ayala was still indigent and appointed appellate counsel. Therefore, the record does not show Ayala's financial circumstances materially changed; rather, the trial court found he in fact remained indigent. Thus, there was no basis for the imposition of attorney's fees. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Wiley, 410 S.W.3d at 317; Wilmurth, 419 S.W.3d at 555. We therefore order the judgment and bill of costs modified to delete the assessment of attorney's fees.
Based on the foregoing we grant the motion to withdraw filed by Ayala's appointed counsel. See Nichols v. State, 954 S.W.2d 83, 86 (Tex. App.—San Antonio 1997, no pet.). We further order the judgment modified to reflect the imposition of a sentence of fourteen years, see Taylor, 131 S.W.3d at 500, and further modified to delete the assessment of attorney's fees. See Wiley, 410 S.W.3d at 317. As modified, we affirm the trial court's judgment. See Bray v. State, 179 S.W.3d 725, 726 (Tex. App.—Fort Worth 2005, no pet) (en banc) (holding appellate court has authority to reform judgment in Anders appeal and to affirm judgment as modified).
No substitute counsel will be appointed. Should Ayala wish to seek further review of this case in the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or file a pro se petition for discretionary review. Any petition for discretionary review must be filed within thirty days after either the day our judgment is rendered or the day the last timely motion for rehearing or timely motion for en banc reconsideration is overruled by this court. See TEX. R. APP. P. 68.2. Any petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals. See id. R. 68.3. Any petition for discretionary review must comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See id. R. 68.4.
Marialyn Barnard, Justice Do Not Publish