Artemio Rosales-Ayala, Appellant v. The State of Texas, Appellee (2016)

MEMORANDUM OPINION

The trial court found Artemio Rosales–Ayala guilty of possession with intent to deliver methamphetamine (4g–200g).  The trial court sentenced Rosales–Ayala to ten years in prison. Rosales–Ayala timely appealed the judgment.

Rosales–Ayala's court-appointed appellate attorney filed a motion to withdraw and brief in which counsel raises no arguable points of error and concludes this appeal is frivolous and 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 sent a copy of the brief and motion to withdraw to Rosales–Ayala and informed him of his rights in compliance with the requirements of Kelly v. State, 436 S.W.3d 313 (2014).  Rosales–Ayala was advised of his right to review the appellate record and to file a pro se brief.  In addition, counsel advised Rosales–Ayala to immediately file a motion in this court if he wished to review the appellate record and enclosed a form motion for that purpose.  This court provided appellant with a copy of the appellate record and set a deadline for Rosales–Ayala to file a pro se brief.  No pro se brief was filed.  After reviewing the record and counsel's brief, we find no reversible error and agree with counsel the appeal is wholly frivolous.  See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex.Crim.App.2005).

The district clerk has filed a supplemental record containing a certified bill of costs.  See Tex.Code Crim. Proc. Ann. art. 103.006 (West 2006) (providing that if a criminal action is appealed, an officer of the court shall certify and sign a bill of costs stating the costs that have accrued and send the bill of costs to the appellate court).  Although the trial court's judgment does not expressly order Rosales–Ayala to pay court-appointed attorney's fees, the certified bill of costs lists an amount to be determined for appointed counsel.  The Texas Court of Criminal Appeals has stated that “attorney's fees as set forth in a certified bill of costs are effective whether or not incorporated by reference in the written judgment.”  Armstrong v. State, 340 S.W.3d 759, 767 (Tex.Crim.App.2011).

The record shows the trial court found Rosales–Ayala to be indigent and appointed appellate counsel to represent him.  “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) (West 2009);  see Fulmer v. State, 401 S.W.3d 305, 318–19 (Tex.App.—San Antonio 2013, pet. ref'd) (holding the trial court erred in ordering an indigent criminal defendant to pay court-appointed attorney's fees when there was no evidence of a material change in his financial circumstances).  Here, nothing in the record shows a material change in Rosales–Ayala's financial circumstances since counsel was appointed to represent him.  Absent a showing of a material change in Rosales–Ayala's financial circumstances, it was error for the district clerk to assess attorney's fees against him in the bill of costs.

Because the assessment of attorney's fees against Rosales–Ayala was erroneous, it must be corrected.  Accordingly, we order the district clerk to delete the assessment of costs for appointed counsel from the bill of costs, and to prepare and file a corrected bill of costs in this case.  See Green v. State, No. 04–13–00018–CR, 2013 WL 6200328, at *2 (Tex.App.—San Antonio Nov. 27, 2013, no pet. h.) (mem. op., not designated for publication) (reforming both the judgment and the bill of costs to delete the assessment of attorney's fees against an indigent criminal defendant).¹

FOOTNOTES

1.   1 No substitute counsel will be appointed.  Should Rosales–Ayala wish to seek further review of this case by the Texas Court of Criminal Appeals, Rosales–Ayala must either retain an attorney to file a petition for discretionary review or fde a pro se petition for discretionary review.  Any petition for discretionary review must be filed within thirty days after either this opinion is rendered or the last timely motion for rehearing or 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 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.

Opinion by: Luz Elena D. Chapa, Justice