Opinion
No. 06-17-00165-CR
01-05-2018
DYWANE JERMAIN MORGAN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 6th District Court Red River County, Texas
Trial Court No. CR02253 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
After pleading no contest to a charge of aggravated assault with a deadly weapon, Dywane Jermain Morgan was placed on community supervision, and the adjudication of his guilt was deferred. One year later, the State moved to revoke Morgan's community supervision and adjudicate his guilt. After some delay caused by Morgan's temporary incompetency to stand trial, the trial court adjudicated Morgan's guilt, sentenced him to twenty years' imprisonment, and assessed him a $500.00 fine and $5,767.00 in court costs. On appeal, Morgan asserts that the trial court erred in including the fees of (1) a court-appointed psychologist and (2) his court-appointed attorney in its assessment of costs. We agree, and we will modify the trial court's judgment by deleting these fees from the cost assessment.
I. Background
After the State filed its amended motion to proceed with adjudication, Morgan's court-appointed attorney filed a motion suggesting incompetency and requesting a psychological examination. See TEX. CODE CRIM. PROC. ANN. art. 46B.004(a) (West Supp. 2017). As a result, the trial court ordered Bryan E. Smith, Psy.D., to examine Morgan to determine if he was competent to stand trial and to submit a written report to the trial court. See TEX. CODE CRIM. PROC. ANN. art. 46B.021(a) (West Supp. 2017). Smith determined that Morgan was incompetent to stand trial, and the trial court entered an order committing Morgan to the North Texas State Hospital in Vernon (NTSH) for examination and treatment with the objective of attaining competency to stand trial. After Morgan was discharged from NTSH, the trial court again ordered Smith to examine Morgan to determine if he was competent to stand trial. Smith reported to the trial court that Morgan was competent to stand trial. The State then subpoenaed Smith to testify at a pretrial hearing.
After a final hearing, the trial court entered its judgment adjudicating Morgan's guilt and assessing him twenty years' imprisonment, a $500.00 fine, and court costs of $5,767.00. The district clerk's bill of costs includes an entry for "COURT APPOINTED ATTORNEY" in the amount of $5,250.00. The parties agree, and the record reflects, that Morgan's court-appointed trial counsel was paid $2,300.00 and that $2,925.00 of this listed cost paid for the psychological services of Smith, who was appointed to determine whether Morgan was competent to stand trial. Morgan asserts that there is no basis for the assessment of the costs of the court-appointed psychologist against him and that the record does not support the assessment of his court-appointed attorney's fees. Since, under the posture of this case, these issues are interrelated, we will address them together.
II. The Trial Court Erred in Assessing Costs for the Fees of Morgan's Court-Appointed Attorney and the Court-Appointed Psychologist
"Court costs are pre-determined, legislatively-mandated obligations resulting from a conviction." Houston v. State, 410 S.W.3d 475, 477 (Tex. App.—Fort Worth 2013, no pet.); see, e.g., TEX. GOV'T CODE ANN. §§ 102.021, 102.041, 102.0415 (West Supp. 2017), §§ 102.0211-.0214 (West 2013) (listing various costs "[a] person convicted of an offense shall pay"); Llorens v. State, 520 S.W.3d 129, 143 (Tex. App.—Austin 2017, pet. ref'd). "However, the defendant may only be obligated to pay court costs that are statutorily authorized." Llorens, 520 S.W.3d at 143 (citing Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014)). The Code of Criminal Procedure provides that a cost may not be imposed "for a service not performed or for a service for which a cost is not expressly provided by law." TEX. CODE CRIM. PROC. ANN. § 103.002 (West 2006).
When the imposition of court costs is challenged, we "determine if there is a basis for the costs but do not determine if sufficient evidence was offered during the trial to support each cost." Llorens, 520 S.W.3d at 143 (citing Johnson, 423 S.W.3d at 390). A bill of cost is sufficient to support the imposition of costs if there is no challenge to a specific cost or the basis for the assessment of that cost. Johnson v. State, 423 S.W.3d 385, 396 (Tex. Crim. App. 2014). However, when a specific cost or its basis is challenged, we look to the record to determine whether the service was performed and whether the service is a cost that a convicted defendant is obligated by statute to pay. See Llorens, 520 S.W.3d at 143-44.
Because Morgan was indigent, the trial court appointed counsel to represent him during trial and on appeal. Under Article 26.05(g) of the Texas Code of Criminal Procedure, a trial court has the authority to order the reimbursement of court-appointed attorney fees only if "the judge determines that a defendant has financial resources that enable the defendant to offset in part or in whole the costs of the legal services provided . . . , including any expenses and costs." TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2017). "[T]he defendant's financial resources and ability to pay are explicit critical elements in the trial court's determination of the propriety of ordering reimbursement of costs and fees" of legal services provided. Armstrong v. State, 340 S.W.3d 759, 765-66 (Tex. Crim. App. 2011) (quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)). Since there was no finding that Morgan was able to pay them, the assessment of attorney fees was erroneous. See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013); see also 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.).
The State concedes that the trial court erred in assessing attorney fees against Morgan. However, it argues, and Morgan agrees, that the record shows that only $2,300.00 was paid for the services of Morgan's court-appointed attorney. Therefore, the State only agrees that the trial court erred in assessing attorney fees in the amount of $2,300.00.
However, the State argues that the record shows that $2,925.00 of the cost listed as "Court Appointed Attorney" was for the services of the court-appointed psychologist. It argues that, as was done in this case, upon a suggestion of incompetency to stand trial, the Texas Code of Criminal Procedure authorizes the trial court to appoint a qualified expert to examine the defendant and to report to the trial court on the competency or incompetency of the defendant. See TEX. CODE CRIM. PROC. ANN. arts. 46B.004, 46B.021(a). In addition, the State argues that Article 46B.027 provides payment for the expert's services. TEX. CODE CRIM. PROC. ANN. arts. 46B.027(a) (West Supp. 2017). Therefore, the State concludes that the court-appointed psychologist's services were costs that the Legislature mandated.
An expert appointed to examine a defendant to determine competency "is not appointed by the court as the expert of the State or the defense, but is the court's disinterested expert." Granviel v. State, 552 S.W.2d 107, 115 (Tex. Crim. App. 1976).
As we have previously noted, a convicted defendant is only obligated to pay those costs that the Legislature authorizes and mandates that he pay. Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014); Llorens, 520 S.W.3d at 143; Houston, 410 S.W.3d at 477. When the Legislature mandates that a convicted defendant be obligated to pay a cost, it expressly provides in the statute that "[a] person convicted of an offense shall pay," TEX. GOV'T CODE ANN. §102.0214, such cost, or it employs similar wording. See, e.g., TEX. GOV'T CODE ANN. §§ 102.021-.0214, 102.041, 102.0415, and statutes cited therein. However, Article 46B.027(a) contains no such language. Rather, it provides that "the county . . . shall pay for services described by Articles 46B.021(a)(1) and (2)." TEX. CODE CRIM. PROC. ANN. art. 46B.027(a) (emphasis added). The State has cited no statute, and we have found none, that provides that a defendant is obligated to reimburse the county for this cost upon his or her conviction of an offense. Because the Legislature has not mandated that a person convicted of an offense pay the cost of an expert appointed pursuant to Article 46B.021, we hold that the trial court erred in assessing against Morgan the cost of the court-appointed psychologist.
Finally, the fees of the court-appointed attorney, $2,300.00, and of the court-appointed psychologist, $2,925.00, total $5,225.00. The amount on the bill of costs listed as "Court Appointed Attorney" is $5,250.00, a difference of $25.00. Nothing in the record supports the basis of this cost; therefore, we hold that the trial court erred in assessing this cost against Morgan.
Having found that the trial court erred in assessing $5,250.00 of costs against Morgan, we sustain his two issues.
For the reasons stated, we modify the trial court's judgment by deleting the assessment of $5,250.00 in costs, and, as modified, we affirm the trial court's judgment.
Ralph K. Burgess
Justice Date Submitted: December 28, 2017
Date Decided: January 5, 2018 Do Not Publish