## NO. 12

- 23

- 00054 -CV

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

JOE MARLIN GILMER , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL FROM THE 294TH

JUDICIAL DISTRICT COURT

VAN ZANDT COUNTY, TEXAS

MEMORANDUM OPINION Joe Marlin Gilmer appea ls the trial court’s order denying his motion to rescind it s order to withdraw funds from his inmate account

. He raise s five issue s on appeal

. We affirm in part and reverse and remand in part.

B ACKGROUND Gilmer is an inmate serving a thirty

- year sentenc e after pleading “guilty” to aggravated assault with a deadly weapon against a family or household member. H e was sentenced January 19, 2017

. That same day , the trial court entered a judgment reflecting a $5,000.00 fine, $374.00 in court costs, and $8,62 1. 90 in restitution payable to VZC Indigent Health. The judgment also contains an order that Gilmer reimburse his court appointed attorney’s fees in the amount of $2,500.00. Attached to the judgment is the court ’s “O rder to Withdraw Funds” from Gilmer’s inmate account in the amount of $16,495.90. On February 7, 2023, Gilmer filed his “ Second Motion to R escind W ithdrawal O rder ” on grounds that (1) the restitution order was not pronounced at the time of sentencing, (2) the restitution order was not authori zed by law because it was not made payable to the victim or the

v ictim compensation c rime fund , ( 3) the restitution order was not supported by evidence, (4) the attorney’s fee order was not supported by sufficient evidence that he incurred fees in th e amou nt2 of $2,500.00 , (5) the attorney’s fee order was not supported by sufficient evidence that he had the financial resources to pay them, (6 ) the fine was not pronounced at sentencing, and (7) the fine was not authorized under the Texas habitual sentencing s cheme . T he trial court denied Gilmer’s motion by written order . This appeal followed.

D ENIAL OF M OTION TO R ESCIND In Gilmer’s first through fourth issues, he argues that the trial court erred by denying his motion to rescind the withdrawal order as it pertains to his attorney’s fees, restitution, and fine.
Standard of Review We review a trial court’s ruling on a motion contesting a withdrawal order under an abuse of discretion standard. Maldonado v. State , 360 S.W.3d 10, 13 (Tex. App .— Amarillo 2010, no pet.). A trial court abuses its discretion when it acts without reference to a ny guiding rules and principles. Quixtar Inc. v. Signature Mgmt . Team, LLC , 315 S.W.3d 28, 31 (Tex. 2010). Furthermore, a trial court abuses its discretion if it reaches a de cision so arbitrary and

unrea sonable as to amount to a clear and prejudicial error of law. Johnson v. Fourth Court of Appeals , 700 S.W.2d 916, 917 (Tex. 1985). An appellate court may reverse a trial court for abuse of discretion only if, after searching

t he record, it is clear that th e trial court’s decision was arbitrary and unreasonable. Simon v. York Crane & Rigging Co., Inc. , 739 S.W.2d 793, 795 (Tex. 1987). Hence, the party that complains of abuse of discretion has the burden to bring forth a record showing such abuse. Id. Absent such a record, the reviewing court must presume that the evidence before the trial judge was adequate to support the decision. Id. Attorney’s Fees
In Gilmer ’s first and second issues, respectively, he argues that the trial court erred by denying his motion to rescind the withdrawal order as it pertains to his attorney’s fees because the evidence is insufficient to support finding s that he (1) had the financial resources to reimburse the fees , and (2) incurred such fees in the amount of $2,500.00. The State submitted no brief. W e find no evidence in the record that Gilmer had the financial resources to reimburse th e fees

. The code of criminal procedure authorizes the appointment of counsel for indigent defendants. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 26.04(a) (West Supp. 202 3 ). Counsel is to be3 appointed only when indigency is shown. Gray v. Robinson , 744 S.W.2d 60 4, 607 (Te x. Crim. App. 1988). A defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant’s financial circumstances occurs. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 26.04(p) (West Supp. 202 3 ). If, after the defendant is convicted, the trial court deter mines that he has financial resources that enable him to offset, in whole or in part, the costs of legal services provided by a
court

- appointed a ttorney, the court must order the defendant to reimburse the amount it finds he
can pay. Id. art. 26.05(g) (We st Supp. 202 3 ). Before the court may order reimbursement of attorney’s fees by such a defendant, it must determine based on facts in the record that the defendant has the financial resources to enable him to offset, in whole or in part, the costs of the l egal services provided. Johnson v. State , 405 S.W.3d 350, 354 (Tex. App.

— Tyler 2013, no pet.). If the record does not show that the defendant’s financial circumstances materially changed, there is no basis for ordering the reimbursement of attorney’s fee s. T EX

. C ODE C RI M

. P ROC

. A NN

. art. 26.04(p); Mayer v. State , 309 S.W.3d 552, 553, 557 (Tex. Crim. App. 2010); Johnson , 405 S.W.3d at 354. The re cord in this case contains no direct proof that the trial court determined Appellant was indigent at the time o f trial. However , the judgment states that he owes “ $ 2,500.00

– Court appointed attorney reimbursement

– Van Zandt County Indigent Defense .” Be cause counsel may be appointed only when indigency is shown, we presume that the trial court determined that Gi lmer was indigent before appointing counsel. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 26.04(a) (West Supp. 2023 ) ; Gray , 744 S.W.2d at 607. We find n o facts in the record to support a finding that, since the court made its initial indigency finding, Gilmer ’s f inancial circumstances materially changed such that he now has the financial resources to enable him to offset, in whole or in part, the costs of the legal services provided. Therefore, there is no basis for the order to reimburse attorney’s fees. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 26.04(p); Mayer , 309 S.W.3d at 553, 557; Johnson , 405 S.W.3d at 354. Accordingly, the court erred by denying Gilmer ’s m otion to rescind the withdrawal order as it pertains to the attorney’s fees. See Maldonado , 360 S.W.3d at 13; Quixtar , 315 S.W.3d at 31; Johnson , 700 S.W.2d at 917. We sustain Gilmer ’s f irst issue. Because we sustain Gilmer ’s f irst issue, we need not add ress his second issue. See T EX

. R. A PP

.4 P. 47.1 ( court of appeals opinion must be as brief as practicable and need address only issues necessary to final disposition of appeal).
Restitution
In Gilmer ’s third issue, he argues that the trial court erred by denying his motion to rescind the withdrawal order as it pertains to the restitution because it was not order ed (1) at the time of sentencing , or (2) payable to the victim. Texas law authorizes a sentencing court to order payment of restitution to the vic tim or the compensation to victims of crime fund for losses sustained as a result of the offense. T EX

. C ODE C R IM

. P ROC

. A NN

. art . 42.037(a) (West Supp. 2023). Failing to mention restitution until its entry in the written judgment (1) deprives a defendant of notice and an opportunity to object or prepare a defense, and (2) violates a defendant’s legitimate expecta tion that the sentence received is the same as that orally pronounced in open court. Burt v. State , 445 S.W.3d 752, 760 (Tex. Crim. App. 2014 ). A restitution order is part of the sentence and must be included in the court’s oral pronouncement of sentence to be properly included in the written judgment. See Alexander v. State , 301 S.W.3d 361, 364 (Tex. App .— Fort Worth 2009, no pet.). The record here shows that no restitution order

was pronounced at the time of sentencing. Therefore, the restitution order was not properly included in the wri tten judgment or its attached withdrawal order , and the trial court erred by denying Gilmer ’s motion to rescind the withdrawal order as it pertains to the restitution order

. See id. ; Maldonado , 360 S.W.3d at 13; Quixtar , 315 S.W.3d at 31; Johnson , 700 S.W.2d at 917

. We sustain Gilmer’s third issue.
Fine
In Gilmer’s fou r th issue, he argues that the trial court er red by denying his motion to rescind the withdrawal order as it pertains to the fine because , at the time of sentencing, the court failed to conduct an ability

- to

- pay inquiry regarding the fine as re quired by Section (a

- 1) of Texas Code of Criminal Procedure Article 42.15

. Gilmer quotes t he following pertinent portion of tha t section :

(a

- 1) Notwithstanding any o ther provision of this article, during or immediately after imposing a sentence in a case in which the defendant entered a plea in open court as pro vided by Article 27.13, 27.14(a), or 27.16(a), a court shall inquire on the record whether the defendant has sufficient resources or income to immediately pay all or part of the fine and costs. If the court determines that the defendant does not have suff icient resources or income to immediately pay all or part of the fine and costs, th e court shall determine w hether the fine and costs should be:5 (1) subject to Subsection (c), required to be paid at some later date or in a specified portion at designated intervals [.]

T EX

. C ODE C RIM

. P ROC

. A NN

. art. 42. 15 (a

- 1 ) (West Supp. 2023 ). Initial ly, we not e that this cas e presents a question of preservation. In Gilmer’s motion to rescind , he mentioned Article 42.15 ’s inquiry requirement but did not explicitly argue that the
court should rescind the withdrawal order based on its failure to conduct an inquiry

. See T EX

. R.
A PP

. P. 3 3.1 (b efore complaint may be presented for appellate review, record must show it was made to trial court by timely request, objection, or m otion )

. A t least one court of appeals has concluded that a defendant’s right to an ability

- to

- pay inquiry i s a category

- two Marin right , and , therefore, the right’s violation requires no objection to preserve the issue for appellate review.
See Cruz v. St ate , No. 14

- 21

- 00454

- CR, 2023 WL 3236888, at *4 (Tex. App.

— Houston [14th Dist.] May 4, 2023, pet. filed) (op ., not yet released for publication)

. We need not address the issue of whether Gilmer’s complaint, which he failed to raise at the time of sentenci ng or in his motion to rescind , is preserved for our review because the court would not have erred in denyin g the motion to rescind on that ground

. See Meadoux v. State , 325 S.W.3d 189, 193 n.5 (Tex. Crim. App. 2010 ) (Although “ ‘ issues of error preservati on are systemic in first

- tier review
courts ,’ ” this “ means only that a court of appeals may not reverse a ju dgment of conviction without first addressing any issue of error preservation

. ” ) (quoting Menefee v. State , 287 S.W.3d 9, 18 (Tex. Crim. App. 2009) )

. Next , this case presents a question of retroactivity. See Cruz , 2023 WL 3236888 , at *4 ( concluding legisl ature intended Article 42.15 amendment adding phrase “on the record” to apply retroactively but overruling appellant’s issue based on contradictory precedent) ; Hernandez

- Faced v. State , 6 61 S.W.3d 630, 638

- 39 (Tex. App

. — Houston [14th Dist.] 2023 , pet. ref’ d) ( concluding legislature did not intend phrase “on the record” to apply retroactively )

. At the time of trial in this case, Article 42.15 did not i nclude Section (a

- 1) or its “on the record” language

. See Act of March 23 , 2017 , 8 5th Leg. , R.S., ch. 977 , § 4 , 2017 Tex. Sess. Law Serv. ( West, Westlaw through 2023 2d C. Sess .) (amending Article 42.15 by adding Section (a

- 1) with its ability

- to

- pay inqu iry requirement , effective September 1, 2017) ; Act of May 8, 2021, 87th Leg., R.S., ch. 106, § 1 (am ending S ection (a

- 1) to add “on the record”)

. For purposes of our opinion, we assume without deciding that the amendments to Article 42.15 appl y retroactiv ely in Gilmer’s case

.6 T he record shows that the trial court conducted no on -the- record ability

- to

- pay inq uiry during or immediately after sentencing Gilmer . Assuming that the amendments to Article 42.15 apply retroactively , this omission is error. See T EX

. C ODE C RIM

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. A NN

. art. 42.15(a

- 1). We next consider whether such error required rescission of the withdrawal order as Gilmer argues. Gilmer cites no authority supporting this argument. Further, he fails to state how the omission of an inquiry ha rmed him. N onconstitutional error in a criminal case that does not affect the defendant’s substantial right s must be disregarded . T EX

. R. A PP

. P. 44.2(b). An error affects a substantial right if it had a substantial and injurious effect or influence on the verdict. King v. State , 953 S.W. 2d 266, 271 (Tex. Crim. App. 1997 ).
Because Article 42.15 guarantees a defendant an on -the- record inquiry into “whether the defendant has sufficient resources or income to immediately pay all or part of the fine and costs,” Gilmer might have suffered harm by the omission of such an inquiry if the trial court ordered him to immediately pay the fine. However, to the contrary, the withdrawal order states, “The Court finds that the offender is unable to pay the court costs, fees, and/or fines and/or restitution on this date and that the funds should be withdrawn from the offend er’s Inmate Trust Ac count.”
It orders that a percentage of Gilmer’s inmate account deposits be withdrawn as payment

. Because the court determined Gi lmer was unable to pay any part of the fine immediately, Gilmer fails to show that his substantial rights we re affected by the omission of an ability

- to -pay inquiry.
See id

. Accordingly, we conclude that the court did not err in disregarding the alleged e rror and denying Gilmer ’s motion to rescind the withdrawal order as it pertains to the fine

. See T EX

. R.
A PP

. P. 44.2(b); Maldonado , 360 S.W.3d at 13; Quixtar , 315 S.W.3d at 31; Johnson , 700 S.W.2d at 917. We overrule Gilmer’s fourth issue.

S TATUTORY C O NFLICT In Gilmer’s fifth issue, he argues that this Court should rescind the withdrawal order because of a p urported conflict between Article 42.15 and Section 501.014(e) of the Texas Government Code, which requires the Texas Department of Criminal Justice to withdraw funds from an inmate’s account to pay a fine when so notifi ed by a court

. He contend s each sta tute is a separate means of collecting a fine and Article 42.15 controls as the more specific of the two. Gilmer did not raise this issue in his mot ion to rescind. Therefore, he has not preserved his complaint for our review. See T EX

. R. A PP

. P. 33.1. Mo reover, e ven if Gilmer preserved his7 complaint, we could not grant him relief on this basis because h e fails to explain how the statutes conflict, a nd we see no conflict between them. Compare T EX

. C ODE C RIM

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. A NN

. art. 42.15 with T EX

. G OV ’ T C ODE A NN

. § 501.014( e) (West Supp. 2023 ). For these reasons , we overrule his fifth issue.

D ISPOSITION Having overruled Appellant’s fourth and fifth issue s , we affirm the trial court’s order denying Appellant’s motion to res cind as it pertains to the fine. Havin g sustained Appellant’s f irst and third issue s, w e reverse the trial court’s order denying Appellant’s motion to rescind as it pertains to the court appointed attorney’s fees and restitution and remand the cause to the trial court for further proceedings c onsistent with this opinion

.

B RIAN H OYLE Justice
Opinion delivered November 21, 2023. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTR ICT OF TEXAS

JUDGMENT

NOVEMBER 21, 2023

NO. 12-23-00054- CV

JOE MARLIN GILMER , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 294 th District Court of Van Zandt County, Texas (Tr.Ct.No. CR -15-00226)
THIS CAUSE came to be heard on the appellate record and the briefs filed herein, and the same being considered, it is the opinion of this court that the judgment of the court below should be affirmed in part , and reversed and remanded in part

. I t is ORDERED, ADJUDGED and DECREED by this cour t t hat the trial court ’ s order denying Joe Marlin Gilmer ’s motion to rescind be affirmed as it pertains to the fine , revers ed as it pertains to the court appointed attorney ’ s fees and restitution , and the cause be remanded to the trial court for further pr oceedings consistent with this opinion ; and that this decision be certified to the court below for observance. Brian Hoyle, Justice. Panel consisted of Worthen, C .J., Hoyle, J., and Neeley, J.