Wells v. State

Michael Wells, Appellant v. The State of Texas, Appellee

NO. 03-18-00675-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

June 4, 2020

FROM THE 33RD DISTRICT COURT OF LLANO COUNTY

NO. CR7497, THE HONORABLE J. ALLAN GARRETT, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted appellant Michael Wells of the state jail felony offense of possession of a penalty group one controlled substance in an amount less than one gram. See Tex. Health & Safety Code § 481.115(a), (b). The jury found the enhancement paragraphs true raising the punishment range to that of a third degree felony, see Tex. Penal Code § 12.425(a), and sentenced appellant to confinement for ten years in the Texas Department of Criminal Justice and imposed a fine of $2,500. For the following reasons, we modify the trial court's judgment of conviction and withdrawal order and, as modified, affirm the judgment of conviction.

Analysis

Appellant does not challenge the jury's verdicts. His six appellate issues seek to modify the judgment to delete certain assessed fees and court costs, to reflect the correct offense level, and to correct clerical errors. He also seeks to modify the withdrawal order to comport with the requested modifications to the judgment.

Court-Appointed Attorney's Fees

In his first issue, appellant argues that the evidence is insufficient to support the trial court's decision to order him to pay court-appointed attorney's fees. In the trial court's judgment, signed September 25, 2018, the court included the following finding and order: "Defendant acknowledged his ability to pay and is court ordered to pay court appointed attorney's fees in the amount of $425.00 in periodic payments."

A trial court may order a defendant to pay court-appointed attorney's fees "[i]f the judge determines that a defendant has financial resources that enable the defendant to offset in part or in whole the costs of the legal services provided to the defendant." Tex. Code Crim. Proc. art. 26.05(g). A trial court's determination under article 26.05(g) "requires a present determination of financial resources and does not allow speculation about possible future resources." Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013). Further, "[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. art. 26.04(p).

Appellant argues that the judgment should be modified to delete the order requiring him to pay court-appointed attorney's fees because the evidence is insufficient to show that he has the ability to pay the assessed attorney's fees, and the State agrees.¹ See Mayerv. State, 309 S.W.3d 552, 554, 556-57 (Tex. Crim. App. 2010) (explaining that trial court's order requiring defendant to pay court-appointed attorney's fees may be challenged on ground that evidence is insufficient to support order). Appellant in June 2018 requested a court-appointed attorney in the trial court. Appellant represented that he did not have monthly income and provided information about his monthly expenses and credit card debt. The trial court appointed counsel for appellant, and the record does not contain additional evidence that would support a finding of material change in appellant's financial circumstances. Appellant's trial counsel filed a motion to withdraw in October 2018 and requested that the trial court appoint appellate counsel because appellant "is indigent and cannot afford to employ counsel." The trial court granted trial counsel's motion to withdraw and appointed appellate counsel to represent appellant.

This Court has authority to modify incorrect judgments when the necessary information is available to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). Because the evidence is insufficient to support the assessed attorney's fees of $425.00 in the judgment, we sustain appellant's first issue and modify the judgment to delete the attorney's fees. See Cates, 402 S.W.3d at 252 (explaining that proper remedy for improperly imposed court-appointed attorney's fees is to reform judgment by deleting court-appointed attorney's fees from order assessing court costs); Blackard v. State, No. 03-15-00819-CR, 2016 WL 4506160, at *1-2 (Tex. App.—Austin Aug. 25, 2016, no pet.) (mem. op., not designated for publication) (modifying judgment to delete order to pay court-appointed attorney's fees because evidence was insufficient to support trial court's finding that defendant had ability to pay fees despite finding stated in judgment that defendant acknowledged ability to pay court-appointed attorney's fees in periodic payments).

Restitution

In his second issue, appellant challenges the restitution fee of $180.00 in the judgment. The judgment states that the restitution fee is payable to "DPS Restitution Accounting" and references "LAB# AUS-1609-17483."

Appellant argues that the fee, which is a lab fee, may not be imposed on appellant except as a condition of community supervision, which he did not receive. See Tex. Code Crim. Proc. art. 42A.301(b)(18) (authorizing judge as condition of community supervision to require defendant "to reimburse a law enforcement agency for the analysis, storage, or disposal of raw materials, controlled substances, chemical precursors, drug paraphernalia, or other materials seized in connection with the offense"). Appellant also argues that the judgment should be modified to delete the fee because the Department of Public Safety is not a proper party to receive restitution as it was not a victim of the charged offense. See id. art. 42.037(a) (authorizing sentencing court to order defendant "to make restitution to any victim of the offense"). For purposes of the restitution statute, a trial court does not have authority to order restitution to anyone other than the victims of the offense for which the defendant is convicted. Burt v. State, 445 S.W.3d 752, 758 (Tex. Crim. App. 2014); see Hanna v. State, 426 S.W.3d 87, 94 (Tex. Crim. App. 2014) (defining "victim" for purposes of restitution statute as "any person who suffered loss as a direct result of the criminal offense").

On appeal, the State concedes that the Department of Public Safety is not a victim of the charged offense. See Aguilar v. State, 279 S.W.3d 350, 353-54 & n.1 (Tex. App.—Austin 2007, no pet.) (observing that DPS "was not the direct recipient of an injury caused by" defendant's crime of possession of controlled substance and, therefore, trial court lacked authority to order defendant to pay lab fees as restitution). The State also concedes that, becauseappellant was sentenced to imprisonment and not community supervision, the trial court lacked statutory authority to order the challenged restitution. See Tex. Code Crim. Proc. art. 42A.301(b)(18). Accordingly, we sustain appellant's second issue and modify the judgment to delete the restitution of $180.00. See Tex. R. App. P. 43.2(b); Bigley, 865 S.W.2d at 27-28.

Degree of Offense

In his third issue, appellant argues that the judgment erroneously describes the level of appellant's offense as "Third Degree Felony" when it should have reflected a state jail felony. See Tex. Health & Safety Code § 481.115(b) (explaining that offense of possession of penalty group one controlled substance is state jail felony if amount of controlled substance is less than one gram). The State agrees that the judgment erroneously shows the degree of the offense for which appellant was convicted and that it should be modified to reflect a conviction for a state jail felony.

Because the jury found the two enhancement paragraphs true, appellant was required to be punished for a third degree felony, but the degree of the charged offense did not change. See Tex. Penal Code § 12.425(a) ("If it is shown on the trial of a state jail felony punishable under Section 12.35(a) that the defendant has previously been finally convicted of two state jail felonies punishable under Section 12.35(a), on conviction the defendant shall be punished for a felony of the third degree."); Henderson v. State, 582 S.W.3d 349, 355-56 (Tex. App.—Amarillo 2018, pet. ref'd) (explaining that defendant's prior felony conviction did not increase degree of current offense "but rather increased only the punishment level that applies to the primary state jail felony offense"); see also Ford v. State, 334 S.W.3d 230, 234-35 (Tex. Crim. App. 2011) (explaining that section 12.42 of Texas Penal Code "increases the range ofpunishment applicable to the primary offense; it does not increase the severity level or grade of the primary offense"). Accordingly, we sustain appellant's third issue and modify the judgment to reflect that the "Degree of Offense" is "State Jail Felony." See Tex. R. App. P. 43.2(b); Bigley, 865 S.W.2d at 27-28.

Clerical Errors in Judgment

In his fourth issue, appellant argues that the judgment contains clerical errors that should be corrected, and the State agrees. The judgment erroneously states "N/A" as to both appellant's plea and the jury's finding as to the second enhancement paragraph. The record reflects that appellant pleaded "not true" to that paragraph and that the jury found the allegation in that paragraph to be "true." Accordingly, we sustain appellant's fourth issue and modify the trial court's judgment to reflect that appellant entered a plea of "not true" to the second enhancement paragraph and that the jury found the allegation in that paragraph to be "true." See Tex. R. App. P. 43.2(b); Bigley, 865 S.W.2d at 27-28; Runels v. State, No. 03-18-00036-CR, 2018 WL 6381537, at *11 (Tex. App.—Austin Dec. 6, 2018, pet. ref'd) (mem. op., not designated for publication) (modifying judgment to correct defendant's plea and jury's finding as to allegation in enhancement paragraph).

Court Costs

In his fifth issue, appellant challenges the facial...