Mayer v. State

• Decision Date: 19 May 2010
• Docket Number: No. PD-0069-09.,PD-0069-09.
• Citation: 309 SW 3d 552
• Parties: Kenneth Lee MAYER, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

309 SW 3d 552

Kenneth Lee MAYER, Appellant, v. The STATE of Texas.

No. PD-0069-09.

Court of Criminal Appeals of Texas.

March 24, 2010.

Rehearing Denied May 19, 2010.

John Bennett, Amarillo, for Appellant.

Charles Cambell, Asst. State Prosecuting Atty., Jeffrey L. VanHorn, State's Atty., Austin, for State.

OPINION

JOHNSON, J., delivered the opinion of the Court in which PRICE, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

A jury found appellant guilty of aggravated kidnapping and assessed punishment at thirty-years' incarceration. Appellant appealed. The court of appeals overruled his first issue on appeal, sustained his second issue—repayment of appointed attorney fees, modified the trial court's judgment, and affirmed it as modified. Mayer v. State, 274 S.W.3d 898, 902 (Tex.App.-Amarillo 2008). We refused appellant's petition for discretionary review, but granted review of the two grounds raised by the state prosecuting attorney's petition.¹

After discharging the jury, the trial court announced the jury's verdict of guilt and assessment of punishment and informed appellant that he "shall pay the Court costs in this case and the Court-appointed attorney's fees that are incurred by Swisher County, Texas in his defense." In the written judgment, the trial court ordered appellant to reimburse the county for court-appointed-attorney fees in the amount of $2,850.

On appeal, appellant included claims complaining about the trial court ordering him to reimburse the county for court-appointed-attorney fees. The court of appeals noted that, under article 26.05(g),² "the trial court has authority to order reimbursement of appointed attorney fees 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." Mayer v. State, 274 S.W.3d at 901. It also noted that the record "does not contain any such determination or finding by the trial court that appellant had any financial resources or was `able to pay' the appointed attorney fees." Id. It also pointed to evidence in the record that "demonstrated that, before trial and within two months of the conclusion of the trial, appellant was indigent and qualified for court appointed counsel." Id. It concluded that, in the absence of "evidence to demonstrate appellant's financial resources to offset the costs of the legal services, the trial court erred in ordering reimbursement of appointed attorney fees." Id. We affirm the judgment of the court of appeals.

The state's first ground for review asserts that appellant procedurally defaulted the issue of attorney-fee reimbursement because he did not object in the trial court and that the court of appeals erred in reaching that issue for the first time on appeal. It argues that appellant had an obligation to "either make a trial objection on the record or complain in a motion for new trial concerning court-ordered reimbursement of attorney's fees," and that by failing to do so, he may not complain on appeal. (State's Brief, p. 3.)

We observe that appellant filed a pre-indictment "Affidavit of Financial Status," which included a request for the court to appoint an attorney to represent him in this case because he did not have the financial ability to hire his own attorney. After review of the affidavit, the trial court found that appellant was indigent and appointed an attorney to represent him at trial.

The state acknowledges that this affidavit reflects that appellant was unemployed and supporting himself on government-sponsored benefits and that he was given a court-appointed trial counsel. The state also acknowledges that appellant "filed a pro se notice of appeal and an affidavit of financial status in support of a request for appellate counsel, and that he was indeed given the assistance of appellate counsel." (State's Brief, p. 4.) Nevertheless, the state notes that neither appellant nor his attorneys lodged any objection or complaint in the trial court to either the fact or the amount of restitution for attorney's fees ordered reimbursed to the county nor made any such objection in a motion for new trial.

The state argues that appellant's failure to object to the trial court's order to repay attorney fees is governed by our holding in Idowu v. State, 73 S.W.3d 918, 921 (Tex. Crim.App.2002), that if a defendant wishes to complain about the propriety of, as opposed to the factual basis for, a trial court's restitution order, he must explicitly do so in the trial court. The state also compares appellant's failure to object to a situation in which an appellant first challenges on appeal probation conditions that may be unreasonable, unconstitutional, or violative of statutory provisions. It points to Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim.App.1999), in which we held that "a defendant who benefits from the contractual privilege of probation ... must complain at trial to conditions he finds objectionable."

In his response to the state's petition, appellant does not challenge the propriety of assessing attorney's fees, but argues here, as he did in the court of appeals,³ that a challenge to the factual basis of a restitution order or an order to pay court-appointed-attorney fees is a challenge to the sufficiency of the evidence regarding that order, that before the court of appeals he claimed that the evidence to support the attorney-fee order was insufficient, and that the court of appeals correctly recognized it as insufficient⁴. He notes the well-settled principle "that evidentiary sufficiency challenges do not require objection to be considered on appeal." (Appellant's Brief, p. 2.)

This Court has stated in the past that "an appellate court must always address challenges to the legal sufficiency of the evidence." McFarland v. State, 930 S.W.2d 99 at 100 (Tex.Crim. App.1996) (citing Texas Rule of Appellate Procedure 90(a), now Rule 47.1, and Garza v. State, 715 S.W.2d 642 (Tex. Crim.App.1986)). A claim regarding sufficiency of the evidence need not be preserved for review at the trial level and is not waived by the failure to do so. See Proctor v. State, 967 S.W.2d 840, 842 (Tex.Crim.App.1998); Lemell v. State, 915 S.W.2d 486, 490 (Tex.Crim.App. 1995) (citing McGlothlin v. State, 896 S.W.2d 183, 190-91 (Tex.Crim.App.1995) (Meyers, J., dissenting)); GEORGE E. DIX AND ROBERT O. DAWSON, 40 TEXAS PRACTICE, CRIMINAL PRACTICE AND PROCEDURE § 3.65 (2000 Supplement).

Rankin v. State, 46 S.W.3d 899, 901 (Tex. Crim.App.2001).⁵

Appellant "concedes that no objection was made to the requirement that he pay court-appointed attorney fees." Appellant points to our language in Idowu, supra, "We ordinarily allow defendants to raise sufficiency of the evidence questions for the first time on appeal. Whether the record provides a sufficient factual basis for a particular restitution order could be considered an evidentiary sufficiency question that need not be preserved by objection at the trial level." Idowu v. State, 73 S.W.3d at 922. We also said that whether a party must object to preserve an evidentiary-sufficiency claim concerning a restitution order, or the amount of restitution, need not be resolved in Idowu. Id. Two years later, we addressed that point, saying that "a claim regarding sufficiency of the evidence need not be preserved for appellate review at the trial level, and it is not forfeited by the failure to do so." Moff v. State, 131 S.W.3d 485, 489 (Tex.Crim. App.2004). Appellant also cites opinions from courts of appeals for the proposition that no trial-court objection is required to raise an appellate complaint about court-appointed-attorney fees.

Appellant also suggests that the Amarillo Court of Appeals properly understood his direct-appeal point of error to be one of insufficient evidence and deleted the attorney fees on that basis. He points to the language in the court of appeals's opinion.

There is an absence of evidence to demonstrate that, at the conclusion of the trial, appellant was "able to pay" or had financial resources that would enable appellant to offset, in part or in whole, the costs of the legal services provided to him.... Without evidence to demonstrate appellant's financial resources to offset the costs of the legal services, the trial court erred in ordering reimbursement of appointed attorney fees. citations omitted. Accordingly, we modify the judgment to delete the attorney fees.

Mayer v. State, 274 S.W.3d at 901.

The court of appeals properly analyzed appellant's point of error that complained about the lack of record evidence of "sufficient inquiry" into appellant's finances that would justify the trial court's determination that appellant should be ordered to pay court-appointed-attorney fees. The court of appeals pointed out that appellant's reply brief, which was filed after the state had filed its response brief on direct appeal, conceded "the sufficiency of the evidence" of the amount of the court-ordered reimbursement of attorney fees after becoming aware of the itemized expense form that had been submitted to the trial court after the conclusion of the trial and filed as a supplemental clerk's record after the filing of appellant's original brief. Mayer, supra, at 900, n. 1. However, appellant also argued that the record was "devoid of any evidence of how the fee was calculated and whether his indigence prevented such a finding," thus including an assertion of evidentiary insufficiency regarding the factual basis for finding that he had financial resources that would enable him to reimburse the costs of the legal services provided. (Appellant's brief before the court of appeals, p. 8.)

Appellant also raised a point of error specifically questioning whether the record contained "sufficient inquiry" into his finances to allow him to be ordered to pay court-appointed-attorney fees. Appellant's reply brief to the state's response brief notes that, after reviewing his financial...