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T A W O N A S H A R M I N R I L E S , A p p e l l a n t

v .
T H E S T A T E O F T E X A S

O N A P P E L L A N T ’ S P E T I T I O N F O R D I S C R E T I O N A R Y R E V I E W

F R O M T H E S E V E N T H C O U R T O F A P P E A L S

P O T T E R C O U N T Y

J O H N S O N , J
. , f

i l e d a d i s s e n t i n g o p i n i o n .
D I S S E N T I N G O P I N I O N

Article 42.12, sec. 11(b) of the Texas Code of Criminal Procedur e states, “A judge may not

order a defenda

nt to make any pay

ments as a term or c ondition of community supervision, except

for fines, court costs, restitution to the victim, and other co n d i t i o n s rela ted persona lly to the

reha bilitation of the defenda

nt or otherwise expressly

authorized by

law. The court shall conside r
the ability of the defe ndant to make pay ments in order ing the defe ndant to make pay ments under this

article .” Appellant clea

rly had appointed counsel, and was, there fore , indige nt. Our case law provides
that, once decla

red indige nt, a defe ndant rema ins so until a chang e in financ i al circ umstances is2

shown. T E X

. C O D E C R I M

. P R O C

. art. 26.04(p); W iley v. State , 410 S.W .3d 313, 317 (Tex. Crim. App. 2013). Article 26.05(g ) states, “I f the court deter mines that a defe ndant has financ ial resour ces that

enable him to offse t in part or in whole the costs of the leg al s er v i ce s provided, including any

expenses and costs, the court shall order the defe ndant to pay during the pendenc y of the char g es or,
if convicted, as court costs the amount that it finds the defe ndant is able to pay .” Attorney fee s are

not fines, restitution, or rela ted persona lly to the reha bilitation of the defe ndant. Nor are they court

costs unless and until the trial court, not the probation off icer or the c ounty

collection depa

rtment,

deter mines that the defe ndant has an ability to pa y , in whole or in pa

rt, the billed attorney fee s: the

defe ndant’s financ ial circ umstances have to have changed s u ch t h at the defe ndant is no longe r indige nt. I find nothing in this rec ord to demonstrate that the trial court made an inquiry as to

ap p el l an t ’s abil ity to pay

. I there fore must conclude that the t rial court had no authority to asse s s
attorney fe es b ecause it did not consider appellant’ s ability to pay

. Wit hout authority to act, the

court’s order was void. A void order may be challeng ed at any time. See Nix v. State , 65 S.W .3d
664, 667-68 (Tex. Cr i m. App. 2001) (“A void judgme nt is a ‘nullity ’ and can be attacke d at any time.”).

I also ag ree with J ustice Pirtle that the majority of the court of appea ls rea ds W iley v. State , 410 S.W .3d 313 (Tex. Crim. App. 2013), too broadly

. He set out the timing of the events at issue.

Orde r of defe rre d adjudication signe d on Marc h 3, 2010, purports to have an attache d bill of costs. Attorney fee voucher

signe d Marc h 4, 2010.

Bill of costs wa s issued on Marc h 19, 2010, two wee ks after the orde r wa s signe d.

Motion to revoke filed on A ug ust 25, 2011.3

Appellant adjudicated on Aug ust 22, 2012.

J udg ment is signed on A ug ust 23, 2012, order pur ports to have a

bill of costs attache d. Bill of costs issued on Aug ust 24, 2012.

J ustice Pirtle then pre sented his re asons for c oncluding that appellant did not forf eit her c laim.

I n W iley t h e Court of Criminal Appea ls clar ified a split betwee n the intermediate courts of appea l conce rning whether an appellant can raise a sufficie ncy of the evidenc e claim conce rning t he reimburse ment of court-a ppointed attorney ’s fee s imposed during an orig inal plea pr ocee ding r esulting in stra ight pr obation in a later appea l from the revoc ation of that community supervision. There, t h e C o u rt held that a defe ndant is p roce durally defa ulted under Manuel v. State , 994 S.W .2d 658, 661-62 (Tex

. Crim. App. 1999), from asserting err or t hat “ co u l d re ad ily have been raised

. . . i n a d i re ct appea l from the initial judgment imposing community
s u p ervision.” W

iley , 410 S.W .3d at 320 (empha sis added)

. I n rea ching its conclusion, the Court of Criminal Appe als emphasized that the “re cord in this case shows the appellant was well awa re of the exis tence and amount of attorney fee s that
we re imposed for his court appointed repr esenta tion during the [original] plea proce eding s.” Id. I n W

iley the judgme nt itself contained a handwr itten nota tion on t h e fac e of the document stating the exact dollar amount of attorney ’s fee s bein g order ed. The opinion of the Court also emphasized the fac t that the Bill of Costs was dated the same day as the orig inal judgment and was attached to that judgme nt, g iving rise to the presumption that the appellant was fully awa re of the full exte nt of the court’s order when he signe d the judg ment. Id. Whil e the majority here rea ches the conclusion that the pertinent fac ts of this
case wer e substanti al l y akin to those in W iley , that simply is not the case

. W iley involved the revoc ation of an order of “straig ht probat i o n,” wher e, in the orig inal proce eding , a judgme nt was enter ed i n ad dition to an order stating the terms and conditions of community supervision; where as this case involves the revoc ation of
an order defe rring an adjudication of g uilt wher e no judgme nt “indepe ndentl y imposed an obliga tion to repa y attorney fee s–‘as court costs.’” Id

. at 320. W iley involved a judgment , signe d b y t h e defe ndant, expressly stating the exact dollar amount of attorney ’s fee s subsequently being contested; wher eas here , the Order of Deferre d Adjudication re fe re n ces an attachme nt (not even in exis tence , much less actua lly attache d when executed) conce rning an undeter mined amount of attorney ’s fee s (to be subseque n t l y aw ar d ed), which wer e to be paid in acc ordanc e with a pay ment arr ang ement (to be subsequently made) with a repr esenta tive of the county “Collections Depa

rtment.” The majo ri t y also posits that Manuel bring s this case into the context of a proce dural defa

ult beca use, l i k e h ere , the revoc ation of an order of defe rre d adjudication was involved in that case

. I n Manuel t h e C o u rt of Criminal Appea ls4

held that an appellant was proce durally barr ed from contesting the sufficie ncy of the evidenc e rela

ting to t he issue of guilt in any proce eding other than “appe als taken when community supervision is orig inally imposed

. . ..” Manuel , 994 S.W

. 2 d at 661. Be cause Manuel co u l d h ave questioned the sufficie ncy of the evidenc e substantiating hi s g uilt immediately afte r being place d on community supervision, he was proce durally barr ed from raising that issue when h is defe rre d adjudication
was revoke d. Id. But Manuel is fac tually distinguishable from this case

. I n Manuel the ap p el l an t soug ht to contest a finding essential to the orig inal order of defe rre d adjudication–a finding of g uilt. Wherea s here , the Appellant is contesting a fac tual deter mination–the ability to repa y $1,000 in court-a

ppointed attorney ’ s f

e e s

– that was not e ven made at the time she was place d on defe rre d adjudication. At best, a ll the t ri al court deter

mined in this case was that the Appellant had the ability to m ak e some monthly pay

ment (as y et undeter

mined) that would be made in acc ordanc e with
a pay ment ag ree men t t h at would be neg otiated in the future with the county collections department

. [ FN 4 Contrary to the m ajority , I believe Manuel limit s the extent of forf

eiture only to those issues which an appellant had notice of at the time of th e o rig inal plea. Her e, the Appellant did not have notice of the full extent of attorney ’s fee s order ed beca use the amount of those fee s was, as y et, undeter mined. Fur thermore , having the ability to make a monthly pay ment is not the same thing as having the ability to pay the lump sum amount, a finding essential to the imposit ion of attorney ’s fe es u nder article 26.05 of the Texas Code of Criminal Procedur e. There fore , it cannot be sa id that Appellant had notice of that esse ntial finding.] Acc ording ly , the proce dural defa ult considera

tion s i n Manuel and W

iley simply are not prese nt in this case and it is neither rea sonable nor prac tical to assume that a defe ndant being place d on defe rre d adjudication would contest by means of an appea l a condition of community supervision he or she rea sonably expected to meet. [FN5 Her e, the Order of

Deferre d Adjudication did not contemplate the pay ment of court costs and attorney ’s fee s in a lump sum amount. The condition of supervision only require d the Appellant to make monthly pay ments in acc ordanc e with a pay ment
arr ang ement to be made afte r taking into considera tion the Appellant’s future income
ear ning ability .] There being no independe nt judgme nt to contest, the fac ts here are clea rly distinguishable from W i l ey where a judgme nt imposed a clea r and specific prese nt obliga tion to pay a specific amount of attorney ’s fee s. Fur thermore , there being no essential fac tual deter mination made at the time of the orig inal plea
conce rning the Appellant’s ability to pay the lump sum attorney ’s fee s order ed, this
case is disti ng uishable fr om Manuel

. Riles v. State , 417 S.W .3d 606, 611-12 (Te x . App.–Amar illo, 2013) (Pirtle, J ., dissenting)

.
I dissent.

Filed: F ebrua

ry 4, 2015 Publis h