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

CLERK

 RECEIVED IN 12th COURT OF APPEALS TYLER, TEXAS 6/23/2015 9:15:37 AM CATHY S. LUSK Clerk
IDENTITIES OF PARTIES AND COUNSEL

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

i
 TABLE OF CONTENTS

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

Index of Authorities ........................................................................iii

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 Authority ....................................................................4

Certificate of Service........................................................................7

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

ii
INDEX 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.3d 350 (Tex.App.-Tyler 2013). ............................5

Wolfe v. State, 377 S.W.3d 141 (Tex.App.-Amarillo 2012, no pet). ................9

STATUTES AND RULES:

Texas Code of Criminal Procedure, Article 26.05 . . . ................................ 5

iii
 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

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

COMES NOW KELTON DEREK WILSON, hereinafter sometimes referred 

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

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

Procedure.

1
STATEMENT OF THE CASE

 APPELLANT WAIVES ORAL ARGUMENT

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

hereinafter sometimes referred to as Appellant, 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 on August 22, 2014 Appellant entered his plea of 

guilty to the Court (CR 1:4-5). The Court ordered a presentence investigation 

report 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 

Twenty (20) years confinement in the Texas Department of Corrections 

Institutional Division, (CR 1:107-108). Although Defendant was found to be 

indigent, the Court ordered him to pay Attorney fees of $1,350.00, in the

Judgement of Conviction. (CR1:107-108). Appellant filed his Notice of Appeal 

on December 29, 2014 (CR 1:109-110). On January 7, 2015, Mr. Steve Green 

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

of Facts and Conclusions of Law entered by the trial Court, Mr. Steve 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). 

2
 STATEMENT 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,” followed 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 Aggravated Assault Against a Public Servant, wherein he waived 

his right to a jury in this Cause (CR 1:4-5). The plea recommendation contained

an agreement to consider five indicted Causes (CR 1:6-8), and to run concurrently 

with C-21,018 (CR 1:4). The record also reflects that Mr. Scott Williams was 

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

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

sentencing (CR 1:11-12). On December 17, 2014, following testimony the trial 

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

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

1:107-108). At that time, the 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 appointed 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, the trial Court found Appellant indigent 

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

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

4
trial 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 included repayment of attorney fees of $1,350.00 (CR 1:107). A 

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

receives the assistance of a Court appointed defense 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 

evidence from Appellant that he had finances to pay the 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 Court appointed 

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

indigent in his request for a Court 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,

considering 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. 

5
In Wolfe v. State, 377 S.W.3d 141 (Tex.App-Amarillo 2012, no pet) the Court held 

that a trial Court 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 Court 

appointed attorney fees before the trial Court can impose the attorney fees on the 

defendant. In Barker v. State, No. 12-13-00032-CR, Memorandum Opinion (Tex.

App.-Tyler 2015) unpublished, an appeal from the 173rd District Court, Henderson 

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

the evidence was legally insufficient to support the trial Court’s assessment of 

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

that Barker was 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 

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

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

against Appellant, in the Judgment.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays 

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.

6
 Respectfully Submitted,

ALTIER LAW OFFICES

1527 E. Fifth St.

Tyler, Texas 75701

Tel: 903-595-4232

Fax: 903-595-0031

altierlaw@gmail.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 

foregoing 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 23, 2015.

/s/ Linda A. Altier 

7
CERTIFICATE OF COMPLIANCE

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

the number of words contained in the above Brief 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