Opinion
No. 05-11-00236-CR
07-25-2012
BRANDON CONRAD MONTGOMERY, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRMED as MODIFIED; Opinion Filed July 25, 2012.
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-80316-10
MEMORANDUM OPINION
Before Justices Morris, Moseley, and Myers
Opinion By Justice Myers
Appellant Brandon Conrad Montgomery appeals from convictions for sexual assault of a child and indecency with a child. In only one issue, he contends the trial court erred by assessing court-appointed attorney's fees to be paid as part of the court costs because the evidence is insufficient to support the order. We sustain appellant's issue and affirm the judgments as modified.
Discussion
Appellant was charged with three counts of sexual assault of a child and two counts of indecency with a child. He pleaded not guilty before a jury and was convicted of all three counts of sexual assault of a child and one count of indecency with a child. The jury assessed punishment at fourteen years in prison for count one (sexual assault of a child), seven years in prison for count two (sexual assault of a child), twelve years in prison for count four (sexual assault of a child), and two years in prison for count five (indecency with a child). The remaining indecency count (count three) was not reached.
The court's charge instructed the jurors to answer count three only if they found appellant not guilty of count two.
The trial court sentenced appellant pursuant to the jury's verdict and ordered all of the sentences to be served consecutively. The judgments for each of the counts included the following provision:
It is further ORDERED that the cost to Collin County for the payment of this defendant's court-appointed attorney, if any, is taxed against this defendant as court cost. The District Clerk is granted leave to amend the court cost to reflect this amount without the necessity of a further order.Court costs were assessed against appellant at $662 for each count, for a total of $2648. Appellant's court-appointed trial counsel submitted a request for compensation of $3600, and the trial court approved a payment of $3100. The box on the compensation form marked "To Be Added to Court Costs" was left blank.
Originally, only the judgment for count one assessed court costs of $662. Judgments nunc pro tunc were subsequently entered for each count containing the language quoted above, and assessing court costs of $662 per count.
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Article 26.05(g) of the code of criminal procedure provides the trial court has discretionary authority to order reimbursement of appointed attorney's fees when the defendant has financial resources that enable him to offset the costs of the legal services provided. Tex. Code Crim. Proc. Ann. art. 26.05(g); see also Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). .A defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant's financial circumstances occurs.. Tex. Code Crim. Proc. Ann. art. 26.04(p). A defendant's .financial resources and ability to pay are explicit critical elements in the trial court's determination of the propriety of ordering reimbursement of costs and fees.. Mayer, 309 S.W.3d at 556. The proper remedy for a finding of insufficient evidence to support the court's assessment of attorney's fees is to strike the amount for attorney's fees from the judgment. See Mayer, 309 S.W.3d at 557; Garner v. State, No. 05-10-00195-CR, 2011 WL 3278533, at *8 (Tex. App.--Dallas August 2, 2011, no pet.) (not designated for publication).
The State does not dispute appellant's indigency but instead argues that because no attorney's fees have actually been assessed against appellant at this time, his complaint is not justiciable. We disagree. Appellant's complaint arises out of the enforcement of a statute governed by the code of criminal procedure. "Accordingly, the pertinent legal issue is a criminal law matter that must be addressed in an appeal of the erroneous judgments." Bahle v. State, Nos. 05.10.01057.CR and 05.10.01058.CR, 2012 WL 1382568, *5 (Tex. App.--Dallas 2012, no pet) (not designated for publication) (citing Armstrong v. State, 340 S.W.3d 759, 766 (Tex. Crim. App. 2011)).
The trial court necessarily determined appellant was indigent when the court initially appointed him counsel, and again when it appointed counsel to represent appellant in this appeal. We find no evidence in the record to support a finding that appellant's financial circumstances had materially changed between the date the trial court initially appointed trial counsel and the date it rendered judgment. See Tex. Code Crim. Proc. Ann. art. 26.04(p); Roberts v. State, 327 S.W.3d 880, 883 (Tex. App.--Beaumont 2010, no pet.). In addition, there is no finding or determination appellant had financial resources that would enable him to pay the appointed attorney's fees. Without such evidence, the trial court erred by ordering reimbursement of appointed attorney's fees. See Durham v. State, No. 09.11.00475.CR, 2012 WL 1795145, at *4 (Tex. App.--Beaumont May 16, 2012, no pet.) (not designated for publication) (citing Mayer v. State, 274 S.W.3d 898, 901.02 (Tex. App.--Amarillo 2008), aff'd, 309 S.W.3d 552 (Tex. Crim. App. 2010)).
Because the evidence is insufficient to support the trial court's assessment of attorney's fees as part of appellant's court costs, we sustain appellant's issue and modify the judgments to strike the following language: "It is further ORDERED that the cost to Collin County for the payment of this defendant's court-appointed attorney, if any, is taxed against this defendant as court cost. The District Clerk is granted leave to amend the court cost to reflect this amount without the necessity of a further order." See Mayer, 309 S.W.3d at 557; Bahle, 2012 WL 1382568, at *5.
As modified, the trial court's judgments are affirmed.
LANA MYERS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110236F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
BRANDON CONRAD MONTGOMERY, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00236-CR
Appeal from the 219th Judicial District Court of Collin County, Texas. (Tr.Ct.No. 219- 80316-10).
Opinion delivered by Justice Myers, Justices Morris and Moseley participating.
Based on the Court's opinion of this date, the judgments of the trial court as to each count of the indictment are MODIFIED to STRIKE the following language: It is further ORDERED that the cost to Collin County for the payment of this defendant's court-appointed attorney, if any, is taxed against this defendant as court cost. The District Clerk is granted leave to amend the court cost to reflect this amount without the necessity of a further order.
As modified, the judgments are AFFIRMED.
Judgment entered July 25, 2012.
LANA MYERS
JUSTICE