Wiley v. State
| Decision Date | 25 September 2013 |
| Docket Number | No. PD–1728–12.,PD–1728–12. |
| Citation | 410 S.W.3d 313 |
| Parties | Sam WILEY, Jr., Appellant v. The STATE of Texas. |
| Court | Texas Court of Criminal Appeals |
OPINION TEXT STARTS HERE
John Bennett, Attorney at Law, Amarillo, TX, for Appellant.
Alex J. Bell, Assistant District Attorney, Waco, TX, Lisa C. McMinn, State's Attorney, Austin, TX, for the State.
After finding that the appellant was indigent and appointing trial counsel for him, the trial court accepted his guilty plea for the offense of hindering apprehension and sentenced him to eight years' confinement in the penitentiary. Thereafter, the trial court suspended the appellant's sentence and imposed eight years' community supervision. Without making a finding that the appellant had the present resources to repay the county for his court appointed trial attorney, the trial court ordered the appellant to pay court costs, which, according to a bill of costs attached to the written judgment, included those attorney fees. The appellant did not appeal at the time of the imposition of community supervision. But when the appellant's community supervision was later revoked and he was sentenced to eight years' incarceration, the appellant did appeal. It was pursuant to that revocation appeal that the appellant complained, for the first time, that the evidence had been insufficient to support the order that he pay for his court appointed lawyer for the initial plea proceedings. The court of appeals acknowledged that the evidence was insufficient to order the repayment of those initial attorney fees, but held that the appellant procedurally defaulted this claim by failing to raise an objection in the trial court at the time that community supervision was imposed. We granted the appellant's petition for discretionary review to determine whether the appellant did in fact procedurally default his claim. We hold that he did, albeit on a basis different than that upon which the court of appeals relied. Accordingly, we will affirm.
The trial court found the appellant indigent and granted his request for court appointed counsel to represent him in the charges he faced for hindering apprehension.1 A day later, on November 3, 2011, the appellant, with the assistance of appointed counsel, pled guilty to that offense pursuant to a negotiated plea bargain with the State. The trial court admonished the appellant that, should it follow the plea bargain, the appellant would not be allowed to appeal without the trial court's permission.2 On December 14, 2011, the trial court sentenced the appellant to eight years in the penitentiary and a $1,000 fine; however, the trial court suspended the sentence and placed the appellant on community supervision for eight years. On that same date, the written judgment was entered, which included a sub-heading entitled “Court Costs.” While most of the text of the judgment was computer-generated, the amount of court costs, $898.00, was handwritten. It is unclear from the record whether this amount had already been written into the judgment by the time the appellant signed it.
The judgment also incorporated the appellant's conditions of community supervision, and those conditions expressly included a requirement that the appellant pay, as court costs, all attorney fees as provided by a bill of costs that was attached to the judgment.3 On its face, this computer-generated bill of costs indicated that it was printed out on the same day—December 14th—that the appellant was sentenced. It itemized the particulars of the court costs, which included a $400.00 cost for the appellant's court appointed attorney during the plea proceedings. In a declaration signed by the appellant that appears on the last page of the judgment next to his thumbprint,4 the appellant acknowledged that “[t]he terms and conditions set forth in this probation order have been read and explained to me on December 14, 2011, and I understand them.” On that same day, the appellant also executed an express written waiver of appeal,5 and he did not pursue an appeal at that time.6
On February 20, 2012, the State filed a motion to revoke the appellant's probation for technical violations.7 The defendant again filed a request for a court appointed attorney, and the trial court again found the appellant to be indigent and appointed counsel to handle the motion to revoke. After a hearing conducted on June 14, 2012, the trial court revoked the appellant's community supervision and sentenced him to eight years' confinement in the penitentiary. The written judgment was entered the same day. A new bill of costs, printed out the day after the revocation judgment, itemized the appellant's total court costs. This time the attorney fees were listed at $800.00—the unpaid $400.00 balance for the attorney who represented the appellant when the trial court initially placed him on community supervision, plus an additional $400.00 for the attorney who represented him during the revocation proceeding. The trial court also entered an order authorizing the withdrawal of funds from the appellant's inmate trust fund account, on a fixed monthly basis, until both his fine and his court costs, including the $800.00 total in attorney fees, should be paid off.8 The trial court certified the appellant's unlimited right to appeal from the revocation order, 9 and the appellant appealed.
On authority of this Court's opinion in Mayer v. State,10 the appellant for the first time complained that the evidence was insufficient to support the assessment of both sets of attorney fees.11 The State conceded that the evidence was insufficient to support the trial court's order that the appellant pay all of the attorney fees.12 However, following its holding in an earlier unpublished opinion in Price v. State,13 the court of appeals determined that complaints about “the assessment of attorney's fees as a condition of supervision must be raised at the time the condition was imposed.” 14 Accordingly, it upheld the $400.00 portion of the attorney fees that was assessed against the appellant as the cost of his court appointed representation during the original plea proceedings. While recognizing that other courts of appeals have split as to whether an appellant can raise complaints about attorney fees imposed at the time of probation in a later appeal from the revocation of that probation, the court of appeals adhered to its reasoning in Price, holding that the appellant procedurally defaulted his claim by not objecting to the attorney fees at the time it was initially assessed at his sentencing.15 We granted this petition for discretionary review to resolve an apparent conflict among the courts of appeals.16We will affirm the judgment of the court of appeals.
The question of whether the evidence is sufficient to support an order for the repayment of attorney fees is, we have held, a criminal law matter.17 The necessary procedure for ordering formerly indigent defendants to pay attorney fees is governed by Texas Code of Criminal Procedure article 26.05(g).18 Under this article, once a defendant is declared indigent, a trial court may order a defendant to pay for the costs of “legal services provided”—but only if it first determines that the “defendant has financial resources that enable him to offset in part or in whole the costs [.]” 19 A defendant who has previously been found indigent is presumed to remain indigent unless there is a “material change” in his financial status, and in the absence of any indication in the record that his financial status has in fact changed, the evidence will not support an imposition of attorney fees.20 In this case, because the trial court failed to find that the appellant's financial status changed after initially finding the appellant to be indigent, the record is insufficient to support the order to pay the attorney fees stemming from his court appointed representation during the initial plea proceedings.
Various courts of appeals have held, however, that such a sufficiency claim is subject to procedural default and may be forfeited in one or both of two ways. The first type of forfeiture, and the one that the court of appeals in this case seems to have invoked, occurs when a defendant fails to raise an objection to the imposition of attorney fees as a condition of community supervision at the time it is initially imposed in the trial court.21 The second type of forfeiture, accepted by at least one other court of appeals, occurs when, regardless of whether there has been an objection at trial, the defendant fails to raise his sufficiency claim in an appeal immediately following his placement on community supervision, waiting instead to try to raise the issue for the first time in his appeal from a later revocation order. 22 The appellant counters with the assertion, which also finds some support in lower court opinions, that, because the trial court again required him to pay the earlier-assessed attorney fees in its revocation order, while placing no limitations on his ability to appeal from that order, the court of appeals erred in refusing to reach the merits of his sufficiency claim. 23
In our view, the appellant did forfeit his sufficiency complaint. But he did not forfeit it by failing to preserve it by objection in the trial court, as the court of appeals here concluded. We hold that he forfeited it because he failed to bring it as a claim in a direct appeal from the order originally imposing community supervision.
In Mayer v. State, we held that an appellant may challenge the sufficiency of the evidence to support an assessment of attorney fees in the written judgment for the first time on appeal, and that such a claim need not be preserved by trial objection.24 But Mayer involved a jury trial, 25 not a negotiated guilty plea (as in this case). While...
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Perry v. State
...by the trial court that he had financial resources or was otherwise able to pay the appointed attorney fees. See Wiley v. State, 410 S.W.3d 313, 317 (Tex. Crim. App. 2013). We have previously held that court costs may be recovered from indigent defendants. Allen v. State, 426 S.W.3d 253, 25......
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Osuna v. State
...State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016); Johnson v. State, 423 S.W.3d 385, 390-91 (Tex. Crim. App. 2014); Wiley v. State, 410 S.W.3d 313, 321 (Tex. Crim. App. 2013); Landers v. State, 402 S.W.3d 252, 255 (Tex. Crim. App. 2013). The Court has explained that a defendant may generall......
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Carnley v. State
...There may be other problems with now trying to include attorney's fees from the original community supervision order. See Wiley v. State, 410 S.W.3d 313 (Tex. Crim. App. 2013); Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010). [7] It appears to me that it would be consistent with exist......
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Sekula v. State
...(West Supp. 2017); accord Dieken v. State, 432 S.W.3d 444, 446(Tex. App.—San Antonio 2014, no pet.); see also Wiley v. State, 410 S.W.3d 313, 317 (Tex. Crim. App. 2013). Here, the record indicates the trial court determined Sekula was indigent and appointed counsel to represent Sekula on Ju......