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Date: 06-25-2019

Case Style:

Robbin Argueta v. The State of Texas

Case Number: 02-18-00055-CR

Judge: Dana Womack

Court: Court of Appeals Second Appellate District of Texas at Fort Worth

Plaintiff's Attorney: Catherine Luft
Lara Tomlin

Defendant's Attorney: J. Edward Niehaus


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By complaint and information filed on April 21, 2017, Argueta was charged
with committing the offense of driving while intoxicated on January 31, 2017. After
his arrest, Argueta completed a document titled, “Defendant’s Acknowledgement of
Alleged Offenses, Rights and Bonds,” on which he declared that he was not indigent
or was not entitled to appointed counsel. Prior to his trial, Argueta retained defense
counsel, but the trial court permitted defense counsel to withdraw on July 5, 2017,
after Argueta failed to pay his retained attorney’s fees.
When Argueta failed to appear at a scheduled court date, he was arrested and
applied for a court-appointed attorney on September 15, 2017. In the application
documents, Argueta stated that he had no income due to his confinement and that his
income as a manager was very low. Three days later, the trial court found that
Argueta was indigent because of his incarceration. The trial court appointed trial
counsel and ordered Argueta to appear with appointed counsel on the Monday
following his release date to review his ability to pay for an attorney. The record does
not show that Argueta appeared before the trial court or had his indigency reevaluated
prior to the commencement of trial on January 29, 2018.
On January 30, 2018, a jury found Argueta guilty of driving while intoxicated,
and the trial court sentenced him to confinement for 180 days, suspended the
sentence, placed him on community supervision for eighteen months, and assessed a
fine of $250 as well as court costs and fees. During the trial proceedings, the trial
court did not make an oral finding regarding Argueta’s indigence, financial resources,
or ability to pay for his court-appointed counsel, and the written judgment does not
contain those findings. The trial court’s judgment requires that Argueta pay a fine of
$250 and court costs of $1,979. Itemized within the bill of costs filed for the case on
January 30, 2018, is an assessment of $1,575 for court-appointed attorney’s fees.
After Argueta filed his notice of appeal, we twice abated his appeal to permit
the trial court to determine in part whether Argueta wished to appeal and was
indigent, and if indigent, whether it was proper to appoint counsel to represent
Argueta on appeal. During the abatement proceedings, Argueta initially informed the
trial court that he needed two months to save money to hire counsel but later
admitted that he had been unable to afford counsel and was probably indigent. The
trial court found Argueta indigent, appointed appellate counsel, and granted Argueta a
free record on appeal.1
In a single issue, Argueta argues that the evidence is insufficient to support the
trial court’s order directing him to reimburse the county for his appointed-counsel
fees after the trial court had found him indigent for trial. The State concedes that the
evidence is insufficient regarding Argueta’s ability to pay court-appointed trial attorney
fees and joins Argueta in asking this court to modify the judgment.
A. Preservation not required to challenge assessment of court costs
Court costs are the nonpunitive recoupment of the costs of judicial resources
expended in connection with the trial of a case. Weir v. State, 278 S.W.3d 364, 366
(Tex. Crim. App. 2009). Court costs are not part of a criminal defendant’s guilt or
sentence, nor must they be proven at trial. See Johnson v. State, 423 S.W.3d 385, 390
(Tex. Crim. App. 2014). An issue relating to the assessment of court costs may be
raised for the first time on appeal. See id at 391. An appellant is not required to
preserve the issue or assert it in a motion for new trial. Id.
1In its written “Finding Regarding Indigence and Order to Appear with Attorney” filed on December 14, 2018, the trial court interlineated “APPEAL ‘ONLY’” above the document title, and marked the “Indigence with Reimbursement” option, which finds that Argueta was indigent and in the interest of justice was entitled to appointment of counsel, but had sufficient resources to offset in whole or in part the cost of legal services and related services to be provided by the order. It also orders Argueta to contribute to the cost of the legal services and related expenses provided by the order.
B. Analysis
Under article 26.05(g) of the Texas Code of Criminal Procedure, a trial court
may order a defendant to pay the costs of “legal services provided” only if it initially
determines that the defendant has financial resources that enable him to offset in part
or whole the costs. Tex. Code Crim. Proc. Ann. art. 26.05(g); see Wiley v. State,
410 S.W.3d 313, 317 (Tex. Crim. App. 2013); Roberts v. State, 508 S.W.3d 310, 312
(Tex. App.—Fort Worth 2013, no pet.) (“Before a trial court can require a defendant
to repay court-appointed attorney’s fees, it must first determine whether the
defendant has the financial resources and the ability to pay.”). The record must
reflect some factual basis to support the trial court’s determination regarding the
defendant’s ability to pay. Wolfe v. State, 377 S.W.3d 141, 144 (Tex. App.—Amarillo
2012, no pet.).
After a defendant is found to be indigent, he is presumed to remain so “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.” Wiley, 410 S.W.3d at 317; see Tex. Code
Crim. Proc. Ann. art. 26.04(p). When a trial court fails to find that the defendant’s
financial status has changed after initially finding the defendant to be indigent, the
record is insufficient and will not support an order to pay attorney fees arising from
court-appointed counsel’s representation. Wiley, 410 S.W.3d at 317.
The determination of a defendant’s ability to pay must be made at the time of
the judgment or order at issue. Wolfe, 377 S.W.3d at 146. Before trial, the trial court
found Argueta to be indigent, and the record does not show that the trial court made
a determination contemporaneous with the judgment or order that Argueta had the
financial resources and the ability to pay court-appointed trial counsel’s fees before it
assessed them. See Wiley, 410 S.W.3d at 317; Roberts, 508 S.W.3d at 312; Tex. Code
Crim. Proc. Ann. art. 26.05(g). Consequently, no factual basis exists in the record to
support a determination that Argueta could pay the fees of court-appointed trial
counsel. See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013).
We sustain Argueta’s issue. The proper remedy is to modify the trial court’s
judgment by deleting the court-appointed attorney’s fees from the order assessing
court costs. Id. at 252; Tex. R. App. P 43.2(b).

Outcome: We modify the judgment of the trial court to delete the fees of Argueta’s court
appointed trial counsel that are included in the order for payment of court costs. The judgment of the trial court is affirmed as modified.

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