IN THE

TENTH COURT OF APPEALS

No. 10-12-00252-CR

GARETH JABAR RICHARDS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2011-935-C2

O P I N I O N

In one issue, appellant, Gareth Jabar Richards, argues that the trial court abused 

its discretion by requiring him to pay court-appointed attorney’s fees assessed in a 

deferred-adjudication order. We affirm.

I. BACKGROUND

On April 6, 2011, appellant was charged by indictment with a state-jail felony—

unlawful possession of a controlled substance, marihuana, in an amount greater than 

four ounces but less than five pounds. See TEX. HEALTH & SAFETY CODE ANN. § 
Richards v. State Page 2

481.121(a), (b)(3) (West 2010). Appellant subsequently filed a request for a courtappointed attorney. The trial court concluded that appellant was indigent and 

appointed him counsel.

Thereafter, appellant entered into a plea agreement with the State. In exchange 

for pleading guilty to the charged offense, the State recommended that appellant be 

placed on community supervision and pay a $1,000 fine. The trial court accepted the 

plea agreement, deferred an adjudication of guilt, and placed appellant on community 

supervision for four years with a $1,000 fine.1 Furthermore, after receiving 

admonishments from the trial court, appellant executed an express written waiver of 

appeal with regard to the deferred-adjudication order. In addition, the trial court 

signed a certification of appellant’s right of appeal, wherein the trial court indicated that 

appellant had waived his right of appeal. Consequently, appellant did not pursue an 

appeal at that time. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 23(b) (West Supp. 

2012) (“The right of the defendant to appeal for a review of the conviction and 

punishment, as provided by law, shall be accorded the defendant at the time he is 

placed on community supervision.”).

However, in the deferred-adjudication order, the trial court assessed $856 in 

court costs. The bill of costs attached to the order indicates that the court costs included 

$400 in court-appointed attorney’s fees. Condition 16 of the deferred-adjudication 

order required appellant to pay these court costs at a rate of $25 per month.

 

1 Appellant was also ordered “to pay restitution to the Texas DPS Lab in the amount of $140.00; 

and 12.45 unfiled prohibited substance in correction[a]l facility.”
Richards v. State Page 3

On May 29, 2012, the State filed a motion to adjudicate guilt, alleging fourteen 

violations. Once again, the trial court determined appellant to be indigent and 

appointed him counsel. At the hearing on the State’s motion to adjudicate guilt, 

appellant pleaded “true” to eleven of the violations alleged in the State’s motion. At the 

conclusion of the hearing, the trial court: (1) concluded that appellant had violated the 

terms and conditions of his community supervision; (2) found appellant guilty of the 

underlying offense; and (3) assessed punishment at twenty-four months’ confinement 

in the State-Jail Division of the Texas Department of Criminal Justice with a $1,000 fine. 

The trial court also assessed court costs of $1,361, which included the $400 in courtappointed attorney’s fees previously assessed in the deferred-adjudication order and an 

additional $500 in court-appointed attorney’s fees for the adjudication proceeding. The 

trial court certified appellant’s right of appeal, and appellant subsequently filed his 

notice of appeal on July 6, 2012.

One month later, on August 6, 2012, appellant filed a motion for judgment nunc 

pro tunc in the trial court, complaining about the assessment of court-appointed 

attorney’s fees. The trial court ostensibly granted appellant’s motion by signing a 

judgment nunc pro tunc, which reflected an elimination of the $500 in court-appointed 

attorney’s fees assessed for the adjudication hearing. However, the amended bill of 

costs still reflected the $400 in court-appointed attorney’s fees assessed in the deferredadjudication order. It is the assessment of $400 in court-appointed attorney’s fees from 

which appellant now appeals. 
Richards v. State Page 4

II. ANALYSIS

In his sole issue on appeal, appellant contends that the evidence is insufficient to 

prove that his financial circumstances changed during the pendency of the proceedings. 

Accordingly, the trial court abused its discretion by requiring him to pay his courtappointed attorney’s fees in the deferred-adjudication order. The Texas Court of 

Criminal Appeals recently resolved this precise issue in Wiley v. State, No. PD-1728-12, 

2013 Tex. Crim. App. LEXIS 1464 (Tex. Crim. App. Sept. 25, 2013).

In Wiley, the court concluded that a defendant procedurally defaults on his claim 

that the record does not support the trial court’s assessment of court-appointed 

attorney’s fees during the initial guilty-plea proceedings when he fails to bring a direct 

appeal from the initial judgment. See id. at **21-23. Specifically, the Wiley court noted 

the following:

The reimbursement of attorney fees was not imposed upon the appellant 

only as a condition of community supervision. On authority of Article 

26.05(g) of the Code of Criminal Procedure, the judgment independently 

imposed an obligation to repay attorney fees—“as court costs.” That one 

of the conditions of community supervision also made the fulfillment of 

that obligation necessary if the appellant wanted to maintain his status as 

probationer does not mean that he was not otherwise obliged to do it in 

satisfaction of the judgment. In this respect, the requirement to pay court 

costs was not comparable to that sort of conditions of community 

supervision that the appellant invokes, such as reporting regularly to a 

probation officer, submitting to drug testing, or satisfying community 

service requirements.

. . . .

The requirement that the appellant pay court costs did not exist 

solely as a function of the probationary contract between the appellant 

and the trial court. Because the obligation to pay attorney fees was 

already imposed by the judgment as a court cost, a reviewing court may 
Richards v. State Page 5

treat it for purposes of appeal as it would treat any other judgment 

obligation for purposes of an evidentiary sufficiency claim; that is, a 

reviewing court may inquire whether the record rationally supports that 

obligation even in the absence of an objection in the trial court. In short, 

Mayer, not Speth, controls.

. . . .

But this also necessarily means that the appellant could readily 

have raised this sufficiency claim in a direct appeal from the initial 

judgment imposing community supervision. Failing to do so, we hold, 

constituted a procedural default under Manuel. The record in this case 

shows that the appellant was well aware of the existence and the amount 

of the attorney fees that were imposed for his court appointed 

representation during the plea proceedings. The bill of costs was dated 

the same day as the judgment imposing community supervision and was, 

by the terms of the judgment itself—as indicated in bold capital letters—

attached. By his signature, the appellant expressly acknowledged having 

read and understood the conditions of community supervision. Under 

these circumstances, the presumption of regularity applies, and we must 

conclude that the appellant was aware of the requirement that he pay 

court costs, including the cost of court appointed attorney fees, even as of 

the time he signed the judgment. He would therefore have known to 

challenge the sufficiency of the evidence to support this requirement as of 

the time of any direct appeal from that judgment.

Instead of doing so, he waived his right to appeal, though not 

required to do so by the terms of any negotiation with the State. 

Whatever else could be said about such a waiver of appeal, it was 

certainly executed knowingly with respect to any possible claim that the 

record did not support the assessment of attorney fees. That he chose to 

forego that appeal must work as a forfeiture of the claim, and he may not, 

consistent with our case law, attempt to resuscitate it in a later appeal 

from the revocation of his community supervision.

Id. at **19-23 (internal citations & footnotes omitted) (emphasis in original).

The fact scenario in the instant case is virtually identical to that in Wiley. Here, 

the deferred-adjudication order, signed on September 13, 2011, assessed court costs at 

$856. Condition 16 of the deferred-adjudication order directs appellant to “SEE THE 
Richards v. State Page 6

ATTACHED BILL OF COSTS” (emphasis in original). The bill of costs, which was 

dated the same day as the judgment imposing community supervision and assessing 

the court costs, reflected that appellant is obligated to pay as court costs $400 in courtappointed attorney’s fees. Appellant chose not to appeal the deferred-adjudication 

order. Instead, on the same day as the judgment was signed and the bill of costs was 

produced, appellant executed an express written waiver of appeal with respect to the 

deferred-adjudication order, though he was not required to do so by the terms of any 

negotiation with the State. Only after his community supervision was revoked did 

appellant choose to appeal the trial court’s assessment of court-appointed attorney’s 

fees in the deferred-adjudication order.

Like Wiley, “[u]nder these circumstances, the presumption of regularity applies, 

and we must conclude that the appellant was aware of the requirement that he pay 

court costs, including the cost of court appointed attorney fees, even as of the time he 

signed the judgment.” Id. at *22 (citing Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. 

App. 1984) (“[T]his Court will indulge every presumption in favor of the regularity of 

documents in the trial court. This means that the recitations in the records of the trial 

court, such as a formal judgment, are binding in the absence of direct proof of their 

falsity.”)). Accordingly, appellant should have known “to challenge the sufficiency of 

the evidence to support this requirement as of the time of any direct appeal from that 

judgment.” Id. Appellant chose not to do so; instead, he waived his right to appeal the 

deferred-adjudication order. Accordingly, like Wiley, we conclude that appellant 

procedurally defaulted his claim about the assessment of court-appointed attorney’s 
Richards v. State Page 7

fees in the deferred-adjudication order and may not “attempt to resuscitate it in a later 

appeal from the revocation of his community supervision.” Id. at **22-23 (citing Manuel 

v. State, 994 S.W.2d 658, 661 (Tex. Crim. App. 1999)). We therefore overrule appellant’s 

sole issue on appeal.

III. CONCLUSION

Having overruled appellant’s sole issue on appeal, we affirm the judgment of the 

trial court.

AL SCOGGINS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed

Opinion delivered and filed November 21, 2013

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