1 ORAL ARGUMENT WAIVED
CAUSE NOS. 06

- 14

- 00209

- CR

IN THE
COURT OF APPEALS
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA

___________________________________________________________

KELVIN SHAMAR MOORE, JR., Appellant

V. THE STATE OF TEXAS, Appellee

___________________________________________________________ ON APPEAL FROM THE 6 TH JUDICIAL DISTRICT COURT RED RIVER COUNTY, TEXAS; HONORABLE ERIC CLIFFORD;

TRIAL COURT NO. CR02059

___________________________________________________________ 

## APPELLEE ’ S (STATE ’ S) BRIEF

____________________________________________________________

Val J. Varley, County and District At torney Red River County and District Attorney ’ s Office Red River County Courthouse 400 North Walnut Street Clarksville, Texas 75426

- 4012 (903) 427

- 2009 (903) 427

- 5316 (Fax)
ATTORNEYS FOR THE STATE OF TEXAS ACCEPTED 06-14-00209-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 2/18/2015 3:42:44 PM DEBBIE AUTREY

CLERK2 IDENTITY OF PARTI ES AND COUNSEL Pursuant to Tex. R. App. P. 38.2(a)(1)(A), the list of parties and counsel is not required to supplement or correct the appellant ’ s list.3 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 2
TABLE OF CONTENTS 3
INDEX OF AUTHORITIES 4
STATEMENT OF THE CASE 6
STATEMENT REGARDING ORAL ARGUMENT 7
ISSUES PRESENTED IN REPLY 8
INTRODUCTION 9
STATEMENT OF FACTS 10
SUMMARY OF THE ARGUMENT 15
ARGUMENT AND AUTHORITIES 16
PRAYER 24
CERTIFICATE OF COMPLIANCE 25
CERTIFICATE OF SERVICE 254 INDEX OF AUTHORITIES
TEXAS CASES : PAGE(S) : Borders v. State , 846 S.W.2d 834 (Tex. Crim. App. 1992). 17

- 18
Cates v. State , 402 S.W.3d 250 (Tex. Crim. App. 2013). 23
Euler v. State , 158 S.W.3d 75 (Tex. App.

-- Houston [14 th Dist.] 2005), aff ’ d , 218 S.W.3d 88 (Tex. Crim. App. 2007). 18

- 19
Hardeman v. State , 1 S.W.3d 689 (Tex. Crim. App. 1999). 16
Issa v. State , 826 S.W.2d 15 9 (Tex. Crim. App. 1992). 16 Kinslow, Robert Shane v. The State of Texas , No. 06

- 14

- 00083

- CR, 2014 Tex. App. LEXIS 13619, 2014 WL 7204556 (Tex. App.

-- Texarkana December 19, 2014, no pet.) (mem. op., not designated for publication). 16

- 18
Manuel v . State , 994 S.W.2d 658 (Tex. Crim. App. 1999). 21
Martin v. State , 405 S.W.3d 944 (Tex. App.

-- Texarkana 2013, no pet.). 23 Mayer v. State , 309 S.W.3d 552 (Tex. Crim. App. 2010). 23
Pearson v. State , 994 S.W.2d 176 (Tex. Crim. App. 1999). 16, 18

- 19
Riles v. State , 417 S.W.3d 606 (Tex. App.

-- Amarillo 2013). 23 Riles, Tawona Sharmin v. The State of Texas ,5

No. PD

- 1757

- 13, 2015 Tex. Crim. App. LEXIS 135, 2015 WL 457915 (Tex. Crim. App. February 4, 2015) (designated for publication). 20

- 22
Vidaurri v. State , 49 S.W.3d 880 (Tex. Crim. App. 2001). 17

- 18 Wiley v. State , 410 S.W.3d 310 (Tex. Crim. App. 2013). 21, 23 TEXAS CODE(S) : PAGE(S) : Tex. Health & Safety Code Ann. § 481.112(a) (West 2010). 6, 10
Tex. Health & Safe ty Code Ann. § 481.112(c) (West 2010). 6, 10 Tex. Health & Safety Code Ann. § 481.102(3)(D) (West 2010). 6, 10
TEXAS RULES OF APPELLATE PROCEDURE : PAGE(S) : Tex. R. App. P. 9.4(i)(3) 25 Tex. R. App. P. 9.5 25 Tex. R. App. P. 33.1 17

- 18 Tex. R. App. P. 38.2 9 Tex. R. App. P. 38.2(a)(1)(A) 2 Tex. R. App. P. 43.2 23 Tex. R. App. P. 44.2(b) 19 Tex. R. App. P. 49.1 176 STATEMENT OF THE CASE This is an appeal from the trial court ’ s judgment ad judicating guilt and revoking Moore ’ s community supervision. See CR, pgs. 64

- 65. A grand jury in Red River County returned an original indictment that charged Moore with the second

- degree felony offense of possession of a controlled substance in penalty group one with intent to deliver, to

- wit: cocaine in an amount of one gram or more but less than four grams. See CR, pgs. 8

- 9. See also Tex. Health & Safety Code Ann. § 481.112(a), (c) (West 2010). In due c ourse, the trial court signed an Order of Deferred Adjudication (CR, pgs. 44

- 45) that placed Moore on community supervision (or “ probation ” ). See RR, pgs. 23

- 24. Subsequently, the State filed a motion to proceed with adjudication.
See CR, pgs. 52

- 57. A fter a revocation hearing, the trial court revoked
Moore ’ s community supervision, found him guilty of the underlying offense and sentenced him to 12 years in the Texas Department of Criminal Justice,
Institutional Division. See RR, pgs. 33

- 34. From the t rial court ’ s final judgment adjudicating guilt (CR, pgs. 64

- 65), Moore timely filed his notice of appeal. See CR, pg. 70. By this appeal, Moore brought two (2) issues/points of error.7 STATEMENT REGARDING ORAL ARGUMENT
The State will waive oral argument in the above

- styled and numbered appellate cause. See Tex. R. App. P. 38.2(a).8 ISSUES PRESENTED IN REPLY
ISSUE PRESENTED IN REPLY NO. 1 : THE APPELLANT WAIVED THE STATUTORY RIGHT TO A SEPARATE PUNISHMENT HEARING BY NOT OB JECTING, OR BY NOT FILING A MOTION FOR NEW TRIAL; AND IN THE ALTERNATIVE, THE APPELLANT HAD THE OPPORTUNITY TO PRESENT HIS MITIGATING EVIDENCE.
SECOND ISSUE PRESENTED IN REPLY NO. 2 : THE APPELLANT PROCEDURALLY DEFAULTED HIS CLAIM AS TO $937.50 IN COURT

- APPOINTED ATTORNEY ’ S FEES, BUT THIS COURT SHOULD MODIFY THE TRIAL COURT ’ S JUDGMENT TO DELETE THE COURT
- APPOINTED ATTORNEY ’ S FEES OF $993.75, AND SHOULD AFFIRM, AS MODIFIED, THE TRIAL COURT ’ S FINAL JUDGMENT OF CONVICTION.9 CAUSE NO. 06

- 14

- 00209

- CR

IN THE
COURT OF APPEALS
SIXTH APPELLATE DISTRICT OF TEXAS AT TEXARKANA

___________________________________________________________

KELVIN SHAMAR MOORE, JR., Appellant

V. THE STATE OF TEXAS, Appellee

___________________________________________________________ ON APPEAL FROM THE 6 TH JUDICIAL DISTRICT COURT RED RIVER COUNTY, TEXAS; HONORABLE ERIC CLIFFORD;

TRIAL COURT NO. CR02059

___________________________________________________________ 

## APPELLEE ’ S (STATE ’ S) BRIEF

____________________________________________________________ COMES NOW, the State of Texas, by and through the elected County and District Attorney of Red River County, Val J. Varley, and the County and District Attorney ’ s Office of Red River County, fil es this Appellee ’ s Brief in accordance with Rule 38.2 of the Rules of Appellate Procedure. Unless otherwise indicated, Kelvin Shamar Moore, Jr., will be
referred to as “ Moore ” or “ the appellant. ” The State of Texas will be
referred to as “ the State ” or “ the appellee. ”10 STATEMENT OF FACTS After Indictment, the Trial Court Placed Moore on Deferred Community Supervision
. On September 26, 2013, a grand jury in Red River County returned an original indictment against Moore that charged him with the felony o ffense of possession of a controlled substance in penalty group one with intent to deliver, to

- wit: cocaine in an amount of one gram or more but less than four grams. See CR, pgs. 8

- 9. See also Tex. Health & Safety Code Ann. § 481.112(a) (West 2010); Te x. Health & Safety Code Ann. § 481.102(3)(D) (listing cocaine in Penalty Group 1). The cocaine was 1.69 grams. See RR, pg. 27. As indicted, the State charged Moore with a second

- degree felony offense. See Tex. Health & Safety Code Ann. § 481.112 (c) (W est 2010). See also RR, pg. 23. On April 14, 2014 (RR, pg. 8), the trial court signed an Order of Deferred Adjudication that placed Moore on community supervision (or by its common name, “ probation ” ). See CR, pgs. 44

- 45. See also RR, pgs.
23

- 24. As so on as Moore was put on probation in Red River County, he was transferred out to Bowie County, which supervised him. See RR, pgs.
8

- 9. Incident of July 4, 2014
. On July 4, 2014, Nataly Marino, a peace officer for the City of11

DeKalb, (Officer Marino) came into contact with Moore. See RR, pg. 12. According to Officer Marino, she was going into her vehicle when Ms. Williams pulled up, and she started telling what Moore had said to her daughter. See RR, pg. 14. So, Ms. Williams took off in front of Office r Marino, who followed behind. See RR, pg. 14. When they got to the residence, Ms. Williams pointed to Moore, who had already walked off from the residence to another residence about a block away. See RR, pg. 14.
Officer Marino came into contact with M oore on North Houston Street. See RR, pg. 17. Officer Marino asked him for an ID, and he patted his pockets to
check for his wallet. See RR, pgs. 14

- 15. Moore was like, “ Oh, I don ’ t
have it with me. ” See RR, pg. 15. Officer Moore could smell mariju ana, and “ asked to pat him down. ” See RR, pg. 15. When Officer Marino was patting him down, she could feel something in his right pocket. See RR, pg. 15. Officer Marino said, “ Yes, please empty out your pockets. ” See RR, pg. 15. A brown cigarette fel l out of his
hand. See RR, pg. 15. Officer Marino asked to see the cigarette that had already been used. See RR, pg. 15. Moore wouldn ’ t hand it to Officer Marino, who picked it up. See RR, pgs. 15, 19. Officer Marino did a field test on it, and it te sted positive for marijuana. See RR, pgs. 15, 29. Officer12

Marino then asked for his name and date of birth, and he gave the name of

“ Kelvin Jones ” with a date of birth of 9

- 26

- 86. See RR, pg. 15. After about thirty minu tes (RR, pg. 19), Officer Marino put the suspect in the back seat, and then he gave Officer Marino his real name,
Kelvin “ Jones ” with his real date of birth of 9

- 30

- 84. See RR, pg. 16. He told Officer Marino, “ I lied to you because I ’ m on probation. ” Se e RR, pg.
16. Officer Marino later charged Moore with the misdemeanor offenses of possession of marijuana and failure to identify as a fugitive from justice.
See RR, pgs. 16

- 17, 20. Moore entered pleas of guilty to those, and was given 21 days in jail. See RR, pg. 20; State ’ s Exhibits 1 and 2. Revocation Hearing on October 30, 2014
. On July 21, 2014, the State filed a motion to proceed with adjudication. See CR, pgs. 52

- 57. Moore was arrested and had been in the Red River County jail from July 4 th until the revocation hearing on October 30, 2014. See RR, pgs. 1, 8

- 9.
On October 30 th , the trial court called the cause number (CR2059) underlying this appeal, and Moore entered a plea of “ true ” to all the allegations. See RR, pgs. 6

- 7. As its first w itness, the State called Miranda Dean (Dean), who testified that Moore “ hasn ’ t made any ” payments since13

he ’ s been on probation. See RR, pgs. 7, 30. Also, Moore didn ’ t do any community service hours. See RR, pgs. 10, 30

- 31. As its second witness, the St ate called Officer Moreno, who recognized the defendant

- appellant (Moore) in open court. See RR, pg. 12. Following the officer ’ s testimony, the State rested. See RR, pg. 21. As its only witness, the defense called Moore to testify. See RR, pg.
21. Fo llowing his testimony, the defense rested. See RR, pg. 33. The trial court then found that Moore had violated each and every one of the allegations in the State ’ s motion. See RR, pg. 33. The trial court revoked his community supervision. See RR, pg. 3 3. The trial court then ruled, “ I now proceed to sentencing. ” See RR, pg. 33. The trial court found Moore guilty of the offense and sentenced him to 12 years in the Texas Department of Criminal Justice, Institutional
Division. See RR, pgs. 33

- 34.
On O ctober 30 th , the trial court signed its final judgment of
conviction. See CR, pgs. 64

- 65. On November 10, 2014, Moore timely filed his notice of appeal. See CR, pg. 70. Proceedings in this Court of Appeals
. On or abo ut November 25, 2014, Moore filed his notice of appeal in this Court. On or about December 8, 2014, the official court reporter filed14

the Reporter ’ s Record. The District Clerk of Red River County filed the
Clerk ’ s Record on or about December 22, 2014 alo ng with a Supplemental
Clerk ’ s Record on January 21, 2015. On or about January 26, 2015, Moore filed his brief. The State will be filing its brief on or before the current due date of February 25, 2015.15 SUMMARY OF THE ARGUMENT By this appeal, Moore bro ught two (2) issues/points of error that allege (1) the trial court erred in failing to conduct a separate punishment hearing and (2) the trial court erred in assessing $1,931.25 in attorney ’ s fees against him because there was no determination that he had the financial ability to pay those costs. See Appellant ’ s Brief, pg. 5. (1) The first issue/point of error should be overruled because the appellant, Moore, failed to preserve this complaint for review because he failed to object during the hearing an d failed to file a motion for new trial. Even further, Moore had the opportunity to present mitigating evidence, and did so by testifying during the revocation hearing. See RR, pgs. 21

- 33. (2) The second issue/point of error should be sustained in part and overruled in part. The total attorney ’ s fees of $1,931.25 had two components: (a) $937.50 and (b) $993.75. As to the component of $937.50, Moore procedurally defaulted by foregoing a direct appeal from the initial order for deferred adjudication. A s for the other component of $993.75, the State will concede error, and this Court should delete the erroneous assessment of $993.75. As modified, the trial court ’ s final judgment adjudicating guilt should be affirmed in all other respects.16 ARGUMENT AND AUTHORITIES
ISSUE PRESENTED IN REPLY NO. 1 : THE APPELLANT WAIVED THE STATUTORY RIGHT TO A SEPARATE PUNISHMENT HEARING BY NOT OBJECTING, OR BY NOT FILING A MOTION FOR NEW TRIAL; AND IN THE ALTERNATIVE, THE APPELLANT HAD THE OPPORTUNITY TO PRESENT HIS MITI GATING EVIDENCE.
A. Introduction
. With his first issue, the appellant, Moore alleged that the trial court erred in failing to conduct a separate hearing before sentencing him. See Appellant ’ s Brief, pgs. 5, 8 (citing Issa v. State , 826 S.W.2d 159 (Tex . Crim. App. 1992)). 1 In his brief, Moore conceded that this Court recently rejected a similar argument to the one presented here. See Robert Shayne Kinslow v. The State of Texas , No. 06

- 14

- 00083

- CR, 2014 Tex. App. LEXIS 13619, 2014 WL 7204556 (Tex. App.

-- Texarka na December 19, 2014, no pet.) (mem. op., not designated for publication) (Morriss, C.J.) (Red River County). In his brief, Moore respectfully requested this Court to reconsider its
decision in the Kinslow case. See Appellant ’ s Brief, pg. 8. However, th is
Court did not reconsider its decision in Kinslow because the appellant did

1 Further, “ Issa does not stand for the absolute right to a separate punishment hearing. ” See Hardeman v. State , 1 S.W.3d 689, 690 (Tex. Crim. App. 1999). In Hardeman , the Court held that “ [i]nstead, it requires the defendant to have the opportunity to present evidence in mitigation of guilt if not afforded during adjudication. ” See id . at 690

- 91 (reference to footnote omitted). See also Pearson v. State , 994 S.W.2d 176, 179 (Tex.17

not file any motion for rehearing. See Tex. R. App. P. 49.1. Like the appellant in Kinslow , Moore was also represented by the same

court

- appointed counsel, Don Biard, who could have filed a motion for rehearing or sought further review in the Texas Court of Criminal Appeals
but did not.
B. Waiver and the Opportunity to Present Evidence
. In Kinslow , this Court held that the appellant “ failed to object during the hearing and als o failed to file a motion for new trial. ” See id ., 2014 Tex. App. LEXIS 13619, at * 2; 2014 WL 7204556, at * 1 (reference to footnote omitted). In Kinslow , this Court held that the appellant failed to preserve this complaint for review. See id (citing T ex. R. App. P. 33.1; Vidaurri v.
State , 49 S.W.3d 880, 886 (Tex. Crim. App. 2001); Borders v. State , 846 S.W.2d 834, 836 (Tex. Crim. App. 1992)). The same outcome should result in the present case.
1. Waiver: Moore Failed to Object During the Hearing
. In the present case, Moore failed to object during the hearing when the trial court asked, “ Anything further, Mr. Meehan? ” See RR, pg. 33. Instead, the defense rested after Moore ’ s testimony. See RR, pg. 33. Even further, Moore failed to object when th e trial court ruled, “ I now

Crim. Ap p. 1999).18

proceed to sentencing. ” See RR, pg. 33. Here, by failing to object, Moore failed to preserve his complaint for review. See Kinslow , 2014 Tex. App. LEXIS 13619, at * 2; 2014 WL 7204556, at * 1 (citing Vidaurri , 49 S.W.3d
at 88 6; Borders , 846 S.W.2d at 836). See also Tex. R. App. P. 33.1.
2. Waiver: Moore Failed to File a Motion for New Trial
. Even assuming Moore was, as he alleged, prevented from presenting separate punishment evidence, he should have brought the issue to the
attention of the trial court with a motion for new trial. See Vidaurri , 49 S.W.3d at 886. However, Moore never filed such a motion. See id

. 3. Moore Had the Opportunity to Present His Mitigating Evidence
. Finally , the decision in the present case was controlled by Pearson , as explained in Euler v. State , 158 S.W.3d 75, 78 (Tex. App.

-- Houston [14 th Dist.] 2005), aff ’ d , 218 S.W.3d 88 (Tex. Crim. App. 2007). According to
the Court in Pearson , “ appellant had the oppo rtunity to present evidence during the proceedings ” and “ that is all that is required. ” See Pearson , 994 S.W.2d at 179 (italics added in the opinion). In Euler , appellant was able to present evidence in mitigation of his punishment, even though this did not occur during a separate punishment hearing. See Euler , 158 S.W.3d at 78. Here, as in Pearson and Euler , Moore had the opportunity to present evidence, and did so because he testified during the October 30 th19

proceedings (RR, pgs. 21

- 33), even though t his did not occur during a separate punishment hearing. See Pearson , 994 S.W.2d at 179; Euler , 158 S.W.3d at 78. Because Moore had the opportunity to present mitigating evidence and did so, he could not establish any harm because he was able to present h is mitigating evidence. See Tex. R. App. P. 44.2(b) ( “ [a]ny other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. ” ). For the reasons set forth above, Moore ’ s first issue/point of error
should be overruled. The trial court ’ s final judgment of conviction should
be affirmed.20

SECOND ISSUE PRESENTED IN REPLY NO. 2 : THE APPELLANT PROCEDURALLY DEFAULTED HIS CLAIM AS TO $937.50 IN COURT

- APPOINTED ATTORNEY ’ S FEES, BUT THIS COURT SHOULD MODIFY THE T RIAL COURT ’ S JUDGMENT TO DELETE THE COURT
- APPOINTED ATTORNEY ’ S FEES OF $993.75, AND SHOULD AFFIRM, AS MODIFIED, THE TRIAL COURT ’ S FINAL JUDGMENT OF CONVICTION.
A. Introduction
. With his second issue on appeal, Moore alleged that the trial court
erred i n assessing $1,931.25 in attorney ’ s fees because there was no determination made that the appellant had the financial ability to pay those

costs. See Appellant ’ s Brief, pgs. 11

- 12. With respect to some of those fees, however, Moore has procedurally defau lted. See Tawona Sharmin Riles v. The State of Texas , No. PD

- 1757

- 13, 2015 Tex. Crim. App. LEXIS 135, 2015 WL 457915 (Tex. Crim. App. February 4, 2015) (designated for publication).
B. Procedural Default
. In Riles , a probation revocation case, the Texas Court of Criminal Appeals recently held that the appellant had knowledge of the attorney fee and, therefore, could have challenged the sufficiency of the evidence supporting payment of the fee in a direct appeal from the initial order for deferred adjudic ation. See Riles , 2015 Tex. Crim. App. LEXIS 135, at * 9; 2015 WL 457915, at * 3. In Riles , the Court held that the appellant21

procedurally defaulted this claim by failing to do so. See id ., 2015 Tex. Crim. App. LEXIS 135, at * 10, 2015 WL 457915, at * 3 (citing Manuel v.
State , 994 S.W.2d 658, 661

- 62 (Tex. Crim. App. 1999)).
In Riles , the appellant filed no appeal until her community supervision was revoked two years later. See Riles , 2015 Tex. Crim. App. LEXIS 135, at * 12; 2015 WL 457915, at * 4. The Riles Court made clear in Manuel
and Wiley v. State , 410 S.W.3d 310 (Tex. Crim. App. 2013) that those issues that an appellant can raise in a direct appeal from the initial judgment must be raised, and that failing to do so results in procedural default. See Riles , 2015 Tex. Crim. App. LEXIS 135, at * 12; 2015 WL 457915, at * 4 (citing
Manuel , 994 S.W.2d at 661

- 62, Wiley , 410 S.W.3d at 320

- 31). In Riles , the appellant had knowledge that she was to be charged for her appointed attorney fee, as evidenced by the multiple admonishments that she signed, but she forfeited her claim by foregoing her initial appeal. See id ., 2015 Tex. Crim. App. LEXIS 135, at * 13; 2015 WL 457915, at * 4.
C. Application of the Riles Rationale to the Present Case
. 1. Proced ural Default of $937.50 in Attorney ’ s Fees . In the present case, the bill of costs reflected $1,931.25 in “ COURT
APPOINTED ATTORNEY ” (CR, pg. 77), but that component actually reflected two (2) separate assessments: one for $937.50 (CR, pgs. 47, 49)22

and the other for $993.75. See CR, pg. 66. Added together, these two (2) separate assessments equaled the total amount of $1931.25 ($937.50 + $993.75 = $1931.25), as reflected in the bill of costs. See CR, pg. 77. In its Order Imposing Conditions of Commun ity Supervision signed on April 14, 2014 (CR, pgs. 46

- 48), the trial court assessed attorney ’ s fees in the amount of $937.50. See CR, pgs. 47, 49. The trial court ’ s assessment of $937.50 was further evidenced by the Certificate of Court Authorizing Payme nt of Attorney ’ s Fees. See CR, pgs. 49

- 51. With respect to the fees of $937.50, however, Moore has procedurally defaulted because he could have challenged the sufficiency of the evidence supporting payment of the fee in a direct appeal from the initial o rder for deferred adjudication, but failed to do so. See Riles , 2015 Tex. Crim. App. LEXIS 135, at * 9, 10; 2015 WL 457915, at * 4. As in Riles , Moore procedurally defaulted because he had knowledge that he was to be charged for his appointed attorney fe e, as evidenced by the multiple admonishments that he signed, but he forfeited his claim by foregoing his initial appeal. See
Riles , 2015 Tex. Crim. App. LEXIS 135, at * 13; 2015 WL 457915, at * 4.
2. This Court Should Modify in Part the Trial Court ’ s Ju dgment and Bill of Costs
. Unlike the assessment of $937.50 (CR, pgs. 47, 49), the State will concede that, as of October 30 th , Moore was indigent and that the record was23

devoid of any determination or finding by the trial court that he had financial

reso urces or was otherwise able to pay the appointed attorney fees. See Wiley , 410 S.W.3d at 317. Thus, the assessment of attorney ’ s fees in the amount of $993.75 was erroneous and should be removed. See Cates v.
State , 402 S.W.3d 250, 252 (Tex. Crim. App. 2013); Mayer v. State , 309 S.W.3d 552, 556 (Tex. Crim. App. 2010); Martin v. State , 405 S.W.3d 944,
946

- 47 (Tex. App.

-- Texarkana 2013, no pet.). Because this Court has the authority to modify judgments to make the record speak the truth, see Tex. R. App. P. 43.2, the Bill of Costs should be
revised and the trial court ’ s judgment should be reformed to add the following provision: “ As used herein the term ‘ court costs ’ does not
include court

- appointed attorney ’ s fees ” in the amount of $993.75. See
Riles v . State , 417 S.W.3d 606, 614 (Tex. App.

-- Amarillo 2013) (Pirtle, J., concurring and dissenting), aff ’ d , No. PD

- 1757

- 13 (Tex. Crim. App. February 4, 2015). Therefore, the appellant ’ s second issue/point of error should be overruled in part and sustained in part to delete the award of $993.75 only. As modified, the trial court ’ s final judgment of conviction should be affirmed in all other respects.24 PRAYER WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that upon final submission without oral argum ent, this Court should delete the assessment of $993.75 in court

- appointed attorney ’ s fees only, and affirm
the trial court ’ s final judgment, as modified; adjudge court costs against the appellant and for such other and further relief, both at law and in e quity, to which the State may be justly and legally entitled. Respectfully submitted, Val J. Varley, County and District Attorney Red River County Courthouse 400 North Walnut Street Clarksville, Texas 75426

- 4012 (903) 427

- 2009 (903) 427

- 5316 (fax) valvarley@valornet.com

By:

_ / s / Val Varley

___________________ Val J. Varley, County

- District Attorney SBN# 20496580
ATTORNEYS FOR THE STATE OF TEXAS25 CERTIFICA

TE OF COMPLIANCE Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure,
the “ State ’ s Brief

” was a computer

- generated document and contained 4,069
words

-- not including the Appendix (not applicable here). The undersigned attorney certified that he relied on the word count of the computer program, which was used to prepare this document.

_ /s/Val Varley

___________ Val J. Varley valvarley@valornet.com
CERTIFICATE OF SERVICE This is to certify that in accordance with Tex. R. App. P. 9.5, a true copy of the “ Appellee ’ s (State ’ s) Brief ” has been served on the 18 TH day of February, 2015 upon the following:
Don Biard McLaughlin, Hutchison & Biard 38 First Northwest Paris, TX 7 5460

_ /s/Val Varley

____________ Val J. Varley valvarley@valornet.com