No oral argument requested

CASE NO. 12-15 -00011

- CR

IN THE

TWELFTH COURT OF APPEALS

TYLER, TEXAS

_______________________________

KELTON DEREK WILSON, Appellant

vs.

THE STATE OF TEXAS, Appellee

_______________________________

On Appeal from the

3 rd Judicial District Court

Henderson County, Texas

(Trial Court Case Number: C-21,018)

Honorable Judge Mark Calhoon, Judge Presiding

BRIEF OF APPELLANT

Linda A. Altier

Altier Law Offices

1527 E. Fifth St.

Tyler, Texas 75701

Tel: 903-595 -4232

Fax: 903-595 -0031

e-mail: altierlaw@gmail.com

State Bar of Texas No.: 00783541

Attorney for Appellant, Kelton Derek Wilson ACCEPTED

12-15-00011-CR

TWELFTH COURT OF APPEALS

TYLER, TEXAS

6/23/2015 9:15:37 AM

CATHY LUSK

CLERKIDENTITIES OF PARTIES AND COUNSE L

State of Texas , Appellee

Plaintiff in Trial Court

Kelton Derek Wilson , Appellant

Defendant in Trial Court

TRIAL COURT COUNSEL

Mr. Mark Hall, Attorney for State

125 N. Prairieville St.

Athens, Texas 75751

Mr. Scott Williams , Attorney for Defendant

100 East Tyler Street,

Athens , Texas 75751

APPELLATE COUNSEL

Linda Altier, Attorney for Appellant

1527 E. Fifth St.

Tyler, Texas 75701

Mark Hall, Attorney for State

125 N. Prairieville St.

Athens, Texas 75751

iTABLE OF CONTENTS

Identity of Parties and Counsel ..............................................................i

Index of Authorities ........................................................................ i ii

Statement of the Case ....................................................................... 2

Issues Presented ..............................................................................3

POINT OF ERROR :

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE TRIAL

COURT’S ASSESSMENT OF ATTORNEY’S FEES AGAINST APPELLANT.

Statement of Facts

........... ................................................................3

Point of Error One Restated

. ............................................................ ... 4

Summary of the Argument

. ................................................... ............ .. 4

Argument and Aut hority ....................................................................4

Certificate of Se rvice........................................................................ 7

Certificate of Compliance.................................................................. 8

iiINDEX OF AUTHORITIES

CASES: Page

Baker v. State

, No. 12

- 13

- 00032

- CR, Memorandum Opinion , unpublished

(Tex.App.

- Tyler 2015 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . ...........................6

Johnson v. State , 405 S.W.3 d 350 (Tex. App.

- Tyler 2013 )

. . ...........................5

Wolfe v. State

, 377 S.W. 3 d 141 (Tex. App.

- Amarillo 2012, no pet ). ................9

STATUTES AND RULES:

Texas Code of Criminal Procedure, Article 26.05 .

. . . ............................... 5

i iiCASE NO. 12

- 1 5

- 00 01 1

- CR

IN THE

TWELFTH COURT OF APPEALS

TYLER, TEXAS

_______________________________

KELTON DEREK WILSON , Appellant

vs.

THE STATE OF TEXAS, Appellee

_______________________________

On Appeal from the

3 rd Judicial District Court

Henderson County, Texas

( Trial Court Case Number: C

- 2 1

, 018 )

Honorable Judge Mark Calhoon, Judge Presiding

BRIEF OF APPELLANT

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

COMES NOW KELTO N DEREK WILSON , hereinafter somet imes referred

to as Appellant, and submits this h is Brief on Appeal in the above entitled and

numbered Cause, pursuant to the provisions of the Texas Rules of Appellate

Procedure.

1STATEMENT OF THE CASE

APPELLANT WAIVES ORAL ARGUMENT

On December 5, 2013, a grand jury indicted Kelton Derek Wilson,

hereinafter sometimes referred to as Appe l lant

, for Aggravated Assault Against a

Public Servant , a First Degree Felony, (CR1:1). The record reflects that Mr. Scott

Williams was court appointed to represent indigent Defendant. Appellant waived

his right to a jury in this case and o n August 22, 2014 Appe l lant entered his plea of

guilty to the C ourt (CR 1: 4

- 5 ). T he C ourt ordered a presentence investigation

re port to be completed by October 13, 2014 for sentencing (CR 1:11

- 12). On

December 17, 2014 the Court Adjudicated Appellant guilty and sentenced him to

T wenty ( 2 0) years confinement in the Texas Department of Corrections

Institutional Division, (CR 1: 107

- 1 08 ). Although Defendant was found to be

indigent, the Court o rdered him to pay Attorney fees of $1

, 350.00, in the

Judge ment of Conviction. (CR1:107

- 108). Appellant filed his Notice of Appeal

on December 29, 2014 (CR 1:1 09

- 110 ). On January 7, 2015, Mr. St eve Green

was appointed to represent indigent Defendant on appeal (CR 1:112). In Findings

of Facts and Conclusions of Law entered by t he trial Court

, Mr. S teve Green was

withdrawn based on conflict of interest and the Court appointed Ms. Linda A.

Altier to represent Appellant on appeal (Supplemental CR 1:2

- 3).

2STATEMENT OF JURISDICTION

Therefore, the Twelfth Court of Appeals holds jurisdiction.

Note: For purposes of this Appeal Brief, all references to the Clerk’ s Record

will be noted as “CR,” followed by the volume number and page number

. References to the Reporter’s Record will be noted as “RR,” fo llowed by the

volume number, page number and line as necessary. Any emphasis added by this

writer will be noted as same immediately following the word or phrase emphasized

by italics. Where two or more points of error involve the same facts, they will be

combined and argued together as permitted by the Texas Rules of Appellate

Procedure

.

ISSUES PRESENTED

POINT OF ERROR:

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE TRIAL

COURT’S ASSESSMENT OF ATTORNEY’S FEES AGAINST APPELLANT.

STATEMENT OF FACTS

On August 22, 2014, Appellant signed an agreed plea recommendation for

an open plea to Aggrav ated Assault Against a Public Servant, wherein he waived

his right to a jury in this Cause ( CR 1:4

- 5). The plea recommendation contain ed

an agreement to consider five indicted Causes (CR 1:6

- 8), a nd to run concurrently

with C

- 21

, 018 (CR 1:4). T he record also reflec ts that Mr. Scott Williams was

C ourt appointed to represent the indigent Defendant. On October 13, 2014 the

3trial Court ordered a presentence investigation report to be completed for

sentencing (CR 1:11

- 12). On December 17, 2014, f ollowing testimony the trial

Court Adjudicated Appellant guilty and sentenced him to T wenty (20 ) years

confinement in the Texas Department of Corrections Institutional Division, (CR

1:10 7

- 1 08 ). At that time, t he trial Court also assessed attorney fees of $ 1,350.00 to

be paid by Defendant

. Upon the withdrawal of Steve Green as Court appointed

appellant attorney, the trial Court found Defendant remained indigent and

appointed Ms. Linda A.Altier as attorney for appeal (Supplemental CR 1:2

- 3)

POINT OF ERROR (Restated):

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE TRIAL

COURT’S ASSESSMENT OF ATTORNEY’S FEES AGAINST APPELLANT.

SUMMARY OF THE ARGUMENT

The trial Court had insufficient evidence of Appellant’s ability to repay

Court a ppointed Attorney’s fees or of any material change in his financial

condition following determination of his indigency, for Appellant to be assessed

the fees in the Judgment of Conviction

.

ARGUMENT AND AUTHORITY

At the onset of his criminal case, t he trial Court found Appellant indigent

and without sufficient funds to hire an attorney . Therefore, an attorney was

appointed to r epresent him. Following his plea of guilty to the trial Court and the

4trial Court hearing evidence , the trial Court found Appellant guilty and assessed

punishment at 20 years in the Texas Department of Criminal Justice Institutional

Division and a zero fine, but no testimony or evidence was had regarding

repayment of the attorney fees (RR 1:137). However, the trial Court did sign a

Judgment that includ ed repayment of attorney fees of $1,350.00 (CR 1:107). A

trial C ourt does have authority to assess attorney’s fees against a Defendant who

receives the assistance of a C ourt appointed de fense attorney if the trial Court finds

the Defendant has financial resources to pay part or all of the attorney fees

Tex.C.C.P. art. 26.05 (g). However, the trial Court did not elicit any testimony or

evidenc e from Appellant that he had finances to pay t he attorney fees or that he

had a material change in his financial circumstances from when he was deemed

indigent . Further, the trial Court knew Appellant was indigent from the onset of

the case because the trial Court approved Appellant’s request for a C ourt appointed

attorney based on his lack of funds. The trial Court continued to find Appellant

indigent in his request for a C ourt appointed attorney for his appeal (Sup. CR 1:

2

- 3). In Johnson v. State , 405 S.W.3d 350 ( Tex. App.

- Tyler 2013) the Court

,

c onsidering Tex.C.C.P. art 26.05

, held that once a criminal defendant is determined

to be indigent, he is presumed to continue to be indigent for the remainder of the

proceedings unless a material change occurs in his financial circumstances

.

5I n Wolfe v. State, 377 S.W.3d 141 (Tex.App

- Amarillo 2012, no pet) the Court held

that a trial C ourt must determine by some supported factual basis in the record if a

defendant has financial resources to offset in part or in whole the costs of the C ourt

appoin ted attorney fees before the trial C ourt can impose the attorney fees on the

defendant. In Barker v. State

, No. 12

- 13

- 00032

- CR

, Memo randum Opinion (Tex.

App

. - Tyler 201 5 ) un publi shed

, an appeal from the 173 rd District Court, Henderson

County, Texas, the Appellant argued, as does this Appellant (Kelton Wilson), that

the evidence was legally ins ufficient to support the trial C ourt’s assessment of

attorney’s fees because there was no evidence in the record to sup port a finding

that Barker w as not indigent. The Court of Appeals , in Barker, held there was no

basis in the record to support the imposition of attorney’s fees and sustained

Barker’s issue concerning attorney fees. For all the above reasons , this case

s hould be reversed and remanded to the trial Court for rehearing based on

insufficient evidence to support the trial C ourt’s assessment of attorney fees

against Appellant, in the Judgment.

PRAYER

WHEREFORE, PREMISES CONSIDERED, A ppellant respectfully p rays

this Honorable Court hold there is insufficient evidence to support the trial Court’s

assessment of attorney fees against Appellant and remand this case for rehearing

.

6Respectfully Submitted,

ALTIER LAW OFFICES

1527 E. Fifth St.

Tyler, Texas 75701

Tel: 903

- 595

- 4232

Fax: 903

- 595

- 0031

altierlaw@gmai l.com

By: /s/ Linda A. Altier

TSBN: 00783541

Attorney for Appellant Kelton Wilson

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the

fore going Appellant’s Brief was served on Mark Hall, Attorney for the State, and

R. Scott McKee, Henderson County District Attorney, 109 W. Corsicana St., Ste.

103, Athens, Texas, by e

- mail to mwhall@co.henderson.tx.us, on June 2 3 , 2015.

/s/ Linda A. Altier

7CERTIFICATE OF COMPLIANCE

In compliance with TRAP 9.4(i), the undersigned hereby certifies that

the number of words contained in the above Br ief of Appellant are 581 ; excluding

caption, identity of parties and counsel, statement regarding oral argument, table of

contents, index of authorities, statement of the case, statement of issues presented,

statement of jurisdiction, signature, proof of service, certification, and certificate of

compliance, which is less than the maximum allowed of 15,000 words.

/s/ Linda A. Altier

8