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 6TH 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 Attorney

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

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 2/18/2015 3:42:44 PM DEBBIE AUTREY Clerk
2

IDENTITY OF PARTIES 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 25
4

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 [14th 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 159 (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 & Safety 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 17
6

STATEMENT OF THE CASE

This is an appeal from the trial court’s judgment adjudicating 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 course, 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. After 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 trial 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 OBJECTING, 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 6TH 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, files 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 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) (West 2010); Tex. 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) (West 

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 soon 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 of 
11

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 Officer 

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 Moore 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 marijuana, 

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 fell 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 tested positive for marijuana. See RR, pgs. 15, 29. Officer 
12

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 minutes (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.” See 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 4th until the revocation hearing on October 

30, 2014. See RR, pgs. 1, 8-9.

On October 30th, 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 witness, the State called Miranda 

Dean (Dean), who testified that Moore “hasn’t made any” payments since 
13

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 State 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. Following 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. 33.

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 October 30th, 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 about November 25, 2014, Moore filed his notice of appeal in 

this Court. On or about December 8, 2014, the official court reporter filed 
14

the Reporter’s Record. The District Clerk of Red River County filed the 

Clerk’s Record on or about December 22, 2014 along 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 brought 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 and 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. As 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.
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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 MITIGATING 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.--Texarkana 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, this 

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 also 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 Tex. 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 the trial court ruled, “I now 

 

Crim. App. 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 886; 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 [14th

Dist.] 2005), aff’d, 218 S.W.3d 88 (Tex. Crim. App. 2007). According to 

the Court in Pearson, “appellant had the opportunity 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 30th
19

proceedings (RR, pgs. 21-33), even though this 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 his 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 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.

A. Introduction.

With his second issue on appeal, Moore alleged that the trial court 

erred in 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 defaulted. 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 adjudication. See Riles, 2015 Tex. Crim. App. LEXIS 135, at * 9;

2015 WL 457915, at * 3. In Riles, the Court held that the appellant 
21

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. Procedural 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 Community 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 

Payment 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 order 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 fee, 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 

Judgment and Bill of Costs.

Unlike the assessment of $937.50 (CR, pgs. 47, 49), the State will 

concede that, as of October 30th, Moore was indigent and that the record was 
23

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

resources 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 argument, 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 equity, 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 TEXAS
25

CERTIFICATE 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 18TH day of 

February, 2015 upon the following:

Don Biard

McLaughlin, Hutchison & Biard

38 First Northwest

Paris, TX 75460

_/s/Val Varley____________

Val J. Varley

valvarley@valornet.com