## In the Court of Appeals Second Appellate District of Texas at Fort Wort h

___________________________ No. 02

- 21

- 00214

- CR

_

__________________________

On Appeal from the 43rd District Court Parker County, Texas Trial Court No. CR21

- 0316

Before Sudderth, C.J.; Kerr and Womack, JJ. M emorandum Opinion by Justice Kerr 

### J AY 

### A LLEN 

### J ONES 

### , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDU M OPINION A jury convicted Appe llant Jay Allen Jones of possession of more than one gram bu t less than four grams of a controlled substance

. Jones has appealed from h is
convi c tion, arguing in three points that the trial cou rt erred (1) by ordering him to reimburse the cost of hi s appointed trial counse l; ( 2) by prematurely assessing a “ Time Payment Fee ” ; and (3) by denying his motion to retest the controlled substance

. We
hold that the trial court erred by imposing a reimburs ement obligation on J o nes a nd by pre maturely assess ing the t ime

- payme nt fee

. But we hold that the trial court did

not abuse its discretion by denying Jones ’ s m otion to re test. We will thus affirm the
trial court ’ s judgment and affirm as modified the challenged trial

- court orders.
I. B ackgro u nd
The State charged Jo nes by indictment with possession of more than one gram bu t less than four grams of a controlled substance

— namely, co ca ine

— a thi rd

- degree felony e nhanced by two p revious final fe lony convictions

. See Tex . H ealth & Safety
Code Ann. § § 481.102(3)(D) , 4 81.115(a) , (c); Tex

. P enal Code A n n. § 12.42( d). Jones
filed an affidavit of indigency, and the trial court appoin ted him c ounsel but ordered
hi m to con tr ibute to the cost of legal services and r elated expens es . Jo ne s moved for
the authoriz ation to expend funds for a private investigator and for the appointm ent of an independent expert to retest the substanc e contain ed in baggies found on Jones ’ s person d ur ing a consensual se arch

. The tri al court auth oriz ed Jones ’ s counsel3 to spend up to $500 “ for investigation in this ca use , ” but it denied Jones ’ s pretrial request for the appointment of an ind ependent expert

. At trial , a jury heard evidence that Weatherfo rd Po lice Department Patrol
Office r Preston Harper stopped Jo nes for driving a vehicle with an illegible tem p orary license plat e. Officer Harper then asked Jones t o step ou t of the vehicle

. O n ce Jon es was out of the veh icle, Office r Har pe r asked if he coul d sea rch Jones ’s person ; Jones
consented

. Officer Harper search ed Jones and found three baggie s

— two in on e of
the f ront pocket s of Jones ’s pa nts and t he thi rd in J ones ’s jacket pocket

— containing
what Officer H arper susp ected to be a controlled substa nce. Of ficer Harper called for assistance, and one of the respond ing officers test ed the substance in the baggies at the scene using a presumpti v e f ield test

. The substance

test ed positiv e for methamp hetamine

. The substance was then sent to the T e xas Department o f P ubli c Safety Crim e Laboratory in Ab ile ne , wh ere i t was tested by a
for ensic sc ien t ist. The substance then test ed positive fo r cocaine

. 1 A jury found J o nes guilty of possession of a controlled su bstance (co caine ) as cha rged in the indic t ment
. Jones pl ea ded true to the indictmen t ’ s two e nhancement
pa ragr aphs, the tria l court found them to be tr ue, and the jury assessed Jones ’ s punishment at 25 years in prison. The trial court sentenced J ones accordingly

.

1 M e thamp hetamine was also identified , a lon g with c ocaine, in on e o f the baggies.4 Jones has appealed and raises the th ree point s s et out ab ove. We address each
of them in turn.
II. Reimburs ement for Appo inted Counse l Jo nes complains in his fi rst point that the trial court err ed by assess ing court

appo inted attorney ’ s fees against him because the trial court ’ s det erminatio n that he
h ad the means to reimburse his appointed trial counsel ’s fee s is unsupported by the
record

. 2 The State agree s , as d o we, t hat the trial court erred by ord ering
reimbursemen t. Jones filed with the trial court an “ Affidavi t of I n digency and Application for
C ou rt[-] Appointed La wyer .” T his affidavit showed that Jones had no income or
assets, received no publi c assistance, and had no monthly expenses

. The trial court si gned an order on May 5, 2021, appo i nt ing Tiffany N. Fowler as J ones ’ s trial counsel

. After Fow le r withdr ew as J ones ’ s counsel, t he trial court signed an order on August 19, 2021 , appointing Andrew H erreth a s Jone s’s trial cou nsel. B oth orders co n tained the following p rovision :

2 Jones raises this complaint for the first time on appeal. A trial objection is not necessary t o preserve a point challeng ing the sufficiency of the e vidence supporting an order requiring reimbursement of app o inte d c ounsel ’ s fees. See Mayer v. State , 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)

. Although the Court of C riminal A ppeals has questioned p art of Maye r ’ s rationale, the court has not overruled it

. See Garcia v. S tate , No . PD

- 0025

- 21, 2022 WL 610983 , at *3 (T ex. Crim. App. Mar. 2, 2022)

. Therefore, Jones was not required to raise this c omplain t in the trial court t o preserve it for our review. See Mayer , 309 S.W.3d at 55 6 ; Guevara v. Stat e , No. 02

- 21

- 00069

- CR, 2022 WL 1042919 , at * 2 n. 2 (Tex. App. —Fort Wo r th A pr. 7, 2022, no pet. ) ( mem. op., not designated for publicat ion)

.5 ✓ APPOINTMENT WITH REIMBURSEMENT The defendant is entitled to the appointment of counsel because _____ defen dant is indigent; ✓ it is in the interests of justice. Defendant presently has financial resources and/or an ability to pay all or part of the cos t of legal services and related expenses to be provided. The defendant is appointed counsel in this matter; h owever [,] defendant shall contribute to the cost of the leg al services and related expenses. Jo nes later moved for the appointment of a s eco nd attor ney . The tr ial cour t granted the motion and appointed Diondra Linquist to assist in Jones ’ s defense at
trial. 3 After the jury ’ s verdicts and after the trial court ’ s oral pro nouncement of

sentence , the follow ing discus s ion s occurred: THE COURT: And, Mr. Her r eth, you acknowledge your receipt of Mr. Jones ’ [s] right to appeal?
MR. HERRETH: Yes, Judge. THE COURT: And does Mr. Jones wish to appeal? MR. HERRETH: He does. THE COURT: And Mr.

-- his indigent status would rem a in the same, Mr. Herreth? MR. HERRETH: It is u nchanged, Your Honor. THE COURT: All right. And, at this time, are you asking the Court for permission for yourself and Ms. Lindquist to withdraw as counsel?

3 Jo nes acknowledges that the trial court has not assess ed a specific fe e award aga inst him but argues that the matter is still r ipe for our consideration. We agree. See , e.g. , Guevar a , 2 022 WL 1042919 , at * 2 n.1 (citin g Jo nes v. State , 428 S .W.3 d 163, 172 n.2 (Tex. App.

— Hous ton [1 st Dist. ] 2014, no pet.)).6 MR. HERRETH: Yes, Judge. THE COURT: A nd the Cou r t i s going to grant that. Mr. Jones, the Court will appoint appellate counsel for you.
U nlike the t rial court ’ s orders appo inting J ones trial cou nsel, the trial court ’ s order s appointing him appellate counsel 4 did n ot or der rei mb urse ment: ✓ AP POI NTMENT WITH OUT REIMBURSEMENT The defendant is entitled to counsel because _____ defendant is indigent; ✓ it is in the interests of justice. Defendant presently has no financial resources to pay orc on tribute to the cost of legal services and relate d e x pen ses. T h e defendant is appointed counsel in this matter. Counsel appointed to represent a d efendant in a criminal proceeding mu st be paid a reasonable attorney ’ s fee for performing certain services. See Tex. Code Crim.
Proc. Ann. art. 26 .05 ( a). Article 26.05(g) provides that [i] f the judge determines that a def enda nt has financial resources that enable the defendant to offset in part or in whole the costs of the legal services provided to the defendant in accordance with Article 1.051(c) or ( d), inclu d ing any expenses and costs, the judge shall order the defenda nt t o pay during the pendency of the charges or, if convicted, as a reimbursement fee the amount that the judge finds the defendant is able to pay
. Id. art. 26.05(g). A rticle 26.05 (g) “ allows t he trial court to order a defendant to re

- pay costs of court

- ap poin ted legal counsel that t he court finds the defendant is able to
pay. ” Cates v. State , 402 S.W.3d 250, 251 (Tex. Crim. App. 2013). But “t he defendant ’ s

4 Elizabeth Cor trigh t was origi nally appointed as Jones ’ s appellate cou nsel , b ut she passe d aw ay during the pend ency of the appeal. The tri al court discharged Co rt righ t as Jones ’ s appellate counsel and appointed Herreth in he r place.7 financial resources and a bil i ty to pay are explicit critical elements in the trial court ’ s determinat ion of t he propriety of ordering reimbursement of cost s and fees ” under
A rticle 26.05(g). Mayer , 309 S.W.3d at 556

. As the State points out , although t he trial court considered Jo nes to be
ind i gent, it never explicitly found h im to be indigent. 5 The St ate ack nowledges, however, that whethe r the trial court found Jones to be indigent is of no moment because the record lacks the necessary evidence to establish that Jones could pay

at tor n ey ’ s fees . “ We agree that the pivotal iss ue is proof of the ability to p ay, and without that proof, the trial c ourt erred by imposing a reimbursement obligation. ”
Guevara , 2022 WL 1042919 , at * 3 ; see Jackson v. State , 562 S.W.3d 717, 723 (T e x. App. —A marillo 2018 , no pet.) . He re, the re is no evidence that Jones had the financia l

res ources to meet the r equired abi lity

- to

- pay standard. Th e trial court thus erred by

5 As the Sta te explains, Although the reporter ’ s record r eflects that the trial court asked Jones ’ [s] trial coun sel if Jone s’ [s] “indigent status would remain the same,” nothing in the recor d reflects that the trial court actually found J ones indigent prior to the app ointment of appellate counsel. In fact, each “Appointment of Counsel” document indicates that the ap poi n tments were “in the interest of justic e,” not due to indigence, and the do cuments reflecting appointment of trial counsel indicate that the t rial cour t found Jones ha d the ability to pay.

. . . Mor eover, the record d emonstrates that the trial court consid e red Jon es to be indigent, because the court pr ovided funds to Jones to hir e an investigator and found, in the

. . . [order ] appointing appellate counsel , that Jones had “no financial re sources to pay or contribute to the cost of legal services. ” [ Recor d ci tations omitted.]8 imposing the re imbur sement obligation in the orders appointing trial co unsel for J ones . See Ja ckson , 562 S.W.3d at 723 ; see also Guevara , 2022 WL 1042919 , at * 3. We

sus t ain Jones ’ s first point

. III. Time -Pay ment Fee
In his second point , Jones asserts that the trial court prematurely a ssessed a

“ Time Payment Fee ” in the amount of $ 15

. See Tex. Code Cr im. P roc. Ann. art. 102.030( a). Th e State agree s— and so do we

— that this fee was prematurely assessed against Jones and s hould be str u ck

. 6

“ By statute, a per son convicted of a felony must pay a $15 fee if he ‘ pays a ny
par t of a fine, court costs, or restitution on or after the 31st day after the date on which a judgment is ent ered assessing the fine, court costs, or restitution. ’” Furstonberg

v. Stat e , No s . 02

- 21

- 00078

- CR, 02

- 21

- 00079

- CR, 02

- 21

- 00080

- CR, 2022 WL 5240473 , at * 5 (Tex. App.

— For t Worth Oct. 6 , 2022, pet. ref ’d) (mem. op ., not designated for publicatio n) (quoting Pr esco tt v. State , No. 02

- 17

- 00158

- CR, 2019 WL 2635559, at
*5 (Tex. App.

— Fort Worth June 27, 2019, no pet.) (mem. op., n ot designated for publication) ) . The Court of C rimi nal Appeals has further concluded that a trial court ’ s

6 Jon es c hallenges the assess ment of the time

- payme nt fee for the first ti me on appeal. He was not required to raise the complaint in the trial court to r aise it on appeal. See Guevara , 2022 WL 1042919 , at * 3 n.5 (citing Jackson v. Stat e , No s . 10

- 17

- 00333 -C R, 10

- 17

- 00334

- CR, 2021 WL 4 898726 , at *1 n.2 (Tex . App.

— Waco Oct. 20, 2021, no pet. ) (mem. op. on remand , not design ated for publication) ).9 assessment of the time

- payment fee while an appeal is pending is premature. Dulin v. State , 620 S.W.3d 129, 133 (Tex. Crim. App. 2021). Here, the tria l court included the time

- payment fee in its bi ll o f cost and

or dered that it “ is not applicable and shall be removed if the fine and cour t co sts are paid in f ull prior to the 31 st day after the date of Judgment.” But this is “before the
condition triggering the assessment of the [fee]

— late payme nt —c ould ha ve

occ urred.” Furstonberg , 2022 WL 5240473 , at * 5 ( quoting P rescott , 2019 WL 2635559, at *5 ). The $15 time

- payment fee should therefore be entirely s truck without prejudice
to its being asses sed later if, more than thirty days after the appellate m a ndate i ssues , Jones has failed to completely pay any of the court costs that he owes

. See id. ; We bster v. State , No. 07

- 20

- 00248

- CR, 202 1 WL 1899359, at *5 (Tex. App.

— Amarillo May 11, 2021, no pet.) (mem. op., not designated for publication) ( applying Dul in to mo dify j udgment to delete time

- payment fee assessed in a community

- supervision revocatio n

ca se) ; see also Guevara , 2022 WL 1042919 , at *4

. We sustain Jones ’ s second point

. IV. Jones ’ s Motion for Retest ing Jone s’s third p oint c hallenges the trial court ’ s order denying his motion to

retest the co caine. Jones argues that the trial court reversi bly erred b y den ying his motion because (1) an indigent p erson accused of a crime is entitled to f unding to

ret est and re- ex amine evidence when a legitimate need is demonstrated, as it was here, and (2) he was entitled to present his motion ex parte. We ad dres s each of these arguments in turn.10 Before Fowler withdr ew as Jones ’ s counsel , she filed a “Mot ion to I ns pec t , Examine [,] and In depen dently Test Physical Evidence ,” which asked the trial court (1) to order the State to produce “ [t]he alleged controlled sub stance in this case ”;

“ [a]ny field test kit used ” ; the baggies in which the controlled substanc e w a s found ; and “ [a]ny pri nt outs , spectru ms, chromatographs, analyses, lab notes, reports[,] or
other documentation regarding the State ’ s testing ” and (2) beca use Jones was indigent , to appo int “ an expert in drug ana lysis to make an ind ependent e xaminati on a nd to

t est i fy a s to the results of his examination of the physical evidence described above .” After Herreth was appointed as Jones ’ s counsel , he set the mot ion fo r hearing

. At the end of a short non

- ev identiary h earing, t he t rial cou rt t ook the mat te r under
advisement . A few days later, the trial court signed its “ Order Denying Motion for Retesting. ”
We review the trial court ’ s denial of Jones ’ s mo tion f or an abuse of discretion.
See Ehrke v. S tat e , 459 S. W.3d 606 , 610 (Tex. Crim. App. 2015 ). Because “ [t] he right to pay for an independent chemist to analyze the controlled substance in a controlled

substance case is absolute,” id. at 614, a “ trial co urt is required to permit a de fendant
in a cont rolled

- subst ance ca s e t o have a n inde pendent expert analyze the controlled
substance ,” i d. at 61 0

. But “while a defendant has an absolute right to inspect the alleged controlled substance, a defendant does n ot hav e an absolute right to a state

appointed ex pert.” Id. at 615. I n o t her wor ds, “t he [S] tate does not need to ‘ purchase for the indigent defendant all the assistance that his wealthier counterpart might buy. ’”11 Id. (quoting Ake v. Oklahoma , 470 U.S. 68, 7 7 , 1 05 S. Ct. 1087, 1093 (1984)). “C reatin g an absolut e righ t f o r the d efendant to state

- funded independent chemical analysis in
all controlled

- substance cases would unduly burden the [S] tate

— there must be some preliminary sho wing of a significant issue of fac t to require the court to appoint an
exp ert.” Id. at 617 . Th us, “th e trial co urt is n ot required to appoint such an expert for an indigent defendant, absent a preliminary showing of a significant issue of fact.” Id. at 610. Here, we examine whether Jon es m et his “burden

. . . to provide concrete
reasons for why th e expert should be appoint ed.” Id. at 615. Jones ar gues on appeal that he made the necessary showing of a signific ant issue of fact because he had argued to the trial court that “ the allegedl y[ ] ille gal substance was field tested to be one thing ” but “l ab t ested t o be another thing .” Jone s’ s writte n motion pr ovide d no reason why the subst ance should be retested or why the trial court should appoint an independent expert
. At the hearing on the

mo tion , the foll owing ex change occurred , [T HE COURT :] An d we ’ re here on a motion to retest

-- MR. HERRETH: Yes. THE C OURT: -- or more testing, Mr. Herreth? MR. HERRETH: For a retest, Judge

. So Ms. Fowler, who was previously representing Mr. Jones, filed a mo tion f or retesting. I ’m just reurging the motio n t h at she already did. I’ ll r ely on her motion and the arguments i n it before the Court.12 But the particularized need I think in this case w hen Mr. Jones was stopped and arrested, the field test tested positiv e fo r one substance. It was shipped off to th e l a b, and they analyzed it, and a result came back as another subs tance. So I thin k we ’ re talking, like, cocaine and methamphetamine or someth ing like that, right? So just because the differences in the facts o f th e case from the field test to the lab an aly s is, we think there ’ s a par ticularlized [sic] need for the subst ance to be retes ted. THE COURT: Ms. Pruett, State have anything they want to say?
M S. PRUETT: We do not. We do not, Your Honor. Only after “the d efen da nt makes a sufficient thr esh o ld show ing of the need for expert assi stance on a particular issue” is the defendant entitled to expert assistance.
Ex parte Jimenez , 364 S.W.3d 866, 877 (Tex. Crim. App. 2012). This showing must be more than “undeveloped ass er tions that the requested ass i stance would be beneficial .”
Caldwell v. Mississippi , 472 U.S. 320, 323 n.1 , 105 S. Ct. 2633, 2637 n.1 (1985). In cases holding that a sufficient showing for a court

- appoin ted expert was not mad e, the defendant typically has fa iled to support his moti on w ith affidavits or other evidence in su pport of his defensive theory, an expl anation as to what his defensive theory was and why expert assistance would be helpful in establishing that theory, or a showing that there was a reas on to question the State ’s ex p ert and proof. Ehrke , 459 S.W.3d at 6 15 (quoting Rey v. State , 897 S.W.2d 333, 341 (Tex. Crim. App. 1995) ). Here, Jones stated tha t the fi eld test and the lab analysis yielded different
po sitive test re sults

. But h e presented no evidence at the hearin g th at th e two tests had13 in fa ct yi el ded d ifferent results , 7 and he presented no argument or evidence that the lab analysis had been improperly per formed or that the lab

- analysis test results were

not a ccurate
. Nor did he explain h ow an expert was needed t o p r epare h is defe nse. He
thus failed to ma ke a preliminary showing of a sign ificant fact is sue bec ause he provided no conc rete reason ing fo r why he needed an independent expert to retest the substance to verify that it was , in fac t, cocaine

. 8 Cf. E hrke , 4 59 S .W.3d a t 615

– 17; Hayes v. State , No. 06

- 15

- 00164

- CR, 2016 WL 65 04015, at *2 –3 (Tex. App.

— Texark ana Nov. 3, 2016, pet. ref’d) (mem . op. , not d esignated for publicat ion). On
this record, we cannot say that the trial court abu sed it s discreti on by denying Jo n es ’ s

mo tion. Cf. E hrke , 459 S.W.3d at 6 15

– 17; Hayes , 2016 WL 6504015, at *2 –3. J ones also argue s that the trial court committed rev ersible error by not

con duc ting an ex parte hearing on his motion and by allo w ing the State to b e present

a t the hearing and to comm ent on the “ matter of indi gent f unding ” by “ explicitly

a sking for a counter argument .” Upon proper request, an indigent defendant is
entitle d to make his motion for a court

- appoin ted expert ex parte. Williams v. Stat e , 9 58 S.W.2d 186 , 1 94 (Tex. Crim. App. 1997 ) . Here, as the State points out , J ones

7 No t until trial was evidence presented that the results of the field test and the lab test d iffered.

8 Ba s ed on Jones ’ s motion , his argument at the hearing , and his argument on appeal , we fail to see how retesting by an independent ex pert would have helped him

. He doesn ’ t dispute that the substa nce in the baggies was either c o caine or methamphetamine , both of which are p enalty

- group

- 1 controlle d substances. See Tex. H ealth & Safety Code Ann. § 481.102(3)(D) , (6).14 “ made no request to proceed ex parte concerning his request ” for a court

- appointed
expert. Busby v. State , 990 S.W. 2 d 263, 270 (Tex. Crim. App. 1999). Nor did he ma ke
any o bjec ti o n o r other w

ise bring the issue to the trial court ’ s attention during the hearing on the motion

. To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion sufficiently stating the sp ecific gr o unds, i f not apparent from the con text, for the desired ru ling. Tex. R. App. P. 33.1(a)(1) ; Montelongo v. State , 623 S.W.3d 819, 822 (Tex. Crim. App. 2021)

. Because Jones m ade no request to proceed ex p arte on his motio n, he failed to preserve th is c om pla in t f or our review. See Tex. R. App . P. 33.1(a) (1) ; Busby , 990 S.W. 2 d at 270

. A ccordingly, we overrule Jones ’ s third point

. V. Conclusion
Hav ing sustain ed Jones ’ s first point , we modify the trial court ’ s orders appointing trial co unsel to remove the at tor ney ’s-f ees

- reimbursement obligation. Having s ustained Jone s’ s sec ond point , we modify the trial court ’ s “ Bill of Cost ” and

“ Order to Wi thdraw Funds Held Un der Texas G overnment Code § 501. 014 ” to de lete the $1 5 t ime

- payment fe e because it was prema tu rel y impose d, but w e mak e our ruling without prejudice t o future assessment if, more than thirty days after the
app ellate mandate issues, Jones has fa iled to fully pay any fine, court cost, or restitution imposed. Bec a use we have ov errule d Jones ’ s th ird point , we affirm the trial

cou rt’ s judgment and affirm as modified the c hallenged trial

- court orders.15 /s/ Elizabeth Kerr Elizabeth Kerr Justice
D o N ot Publish Tex. R. App. P. 47.2(b)
Delivered : April 20, 2023