Angel Ryder Mercado v. the State of Texas ( 2021 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-20-00274-CR
ANGEL RYDER MERCADO, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 251st District Court
Randall County, Texas
Trial Court No. 29814-C, Honorable Richard Dambold, Presiding
November 8, 2021
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Angel Ryder Mercado, appeals his conviction for the offense of evading
arrest by use of a motor vehicle1 and sentence of six years’ incarceration in the
Institutional Division of the Texas Department of Criminal Justice. Appellant timely filed
his notice of appeal. Appellant’s appointed counsel on appeal has filed an Anders2 brief
1 See TEX. PENAL CODE ANN. § 38.04(b)(2)(A).
2 See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
in support of a motion to withdraw. We grant counsel’s motion and, as modified, affirm
the judgment.
In support of his motion to withdraw, counsel has certified that he has conducted
a conscientious examination of the record and, in his opinion, the record reflects no
reversible error upon which an appeal can be predicated. Id. at 744; In re Schulman, 252
S.W.3d 403, 406 (Tex. Crim. App. 2008). In compliance with High v. State, 573 S.W.2d
807, 813 (Tex. Crim. App. [Panel Op.] 1978), counsel has discussed why, under the
controlling authorities, the record presents no reversible error. In a letter to appellant,
counsel notified him of his motion to withdraw; provided him with a copy of the motion,
Anders brief, and appellate record; and informed him of his right to file a pro se response.
See Kelly v. State, 436 S.W.3d 313, 319-20 (Tex. Crim. App. 2014) (specifying appointed
counsel’s obligations on the filing of a motion to withdraw supported by an Anders brief).
By letter, this Court also advised appellant of his right to file a pro se response to counsel’s
Anders brief. Appellant has not filed a response. The State has not filed a brief.
By his Anders brief, counsel discusses areas in the record where reversible error
may have occurred but concludes that the appeal is frivolous. We have independently
examined the record to determine whether there are any non-frivolous issues that were
preserved in the trial court which might support an appeal. See Penson v. Ohio, 488 U.S.
75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); In re Schulman, 252 S.W.3d at 409;
Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). Following our review of
the appellate record and counsel’s brief, we conclude there are no grounds for appellate
review that would result in reversal of appellant’s conviction or sentence.
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However, in conducting our review, we discovered a mistake that necessitates
correction. The trial court assessed the repayment of $4,355 in appointed attorney’s fees
against appellant. A trial court has the authority to order the reimbursement of court-
appointed attorney’s 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 to the defendant . . ., including any expenses and costs.” TEX. CODE
CRIM. PROC. ANN. art. 26.05(g); see Mayer v. State, 309 S.W.3d 552, 555-56 (Tex. Crim.
App. 2010). Once a criminal defendant has been found to be indigent, he is presumed to
remain indigent for the remainder of the proceedings unless a material change in the
defendant’s financial resources occurs. TEX. CODE CRIM. PROC. ANN. art. 26.04(p). For
attorney’s fees to be assessed, the record must reflect some factual basis to support the
trial court’s determination. Flores v. State, No. 07-17-00142-CR, 2018 Tex. App. LEXIS
6518, at *3 (Tex. App.—Amarillo Aug. 16, 2018, no pet.) (mem. op.) (citing Barrera v.
State, 291 S.W.3d 515, 518 (Tex. App.—Amarillo 2009, no pet.) (per curiam)).
In the present case, appellant was found to be indigent on December 16, 2019,
and the trial court appointed counsel to represent him. The judgment ordering appellant
to repay $4,355 was entered December 7, 2020. Nothing in the record indicates that
appellant’s financial circumstances ever changed. In fact, appellant filed a “pauper’s oath
on appeal” requesting appointment of appellate counsel because appellant remained
indigent. The trial court granted this request and appointed appellate counsel. In the
absence of evidence that appellant has the present ability to pay court-appointed
attorney’s fees, the trial court’s order violates article 26.05 of the Code of Criminal
Procedure. See Cates v. State, 402 S.W.3d 250, 251-52 (Tex. Crim. App. 2013)
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(discussing that both article 26.05(g) and Mayer, 309 S.W.3d at 556, require the trial court
to determine a defendant has a present ability to reimburse for the cost of court-appointed
attorney’s fees before those fees can be assessed). Because there is no record evidence
establishing that appellant had a present ability to pay the cost of his court-appointed
attorney’s fees, we modify the judgment to delete the order that appellant pay $4,355 in
attorney’s fees. Flores, 2018 Tex. App. LEXIS 6518, at *4 (citing Bruce v. State, No. 07-
12-00347-CR, 2013 Tex. App. LEXIS 31, at *6 (Tex. App.—Amarillo Jan. 3, 2013, no pet.)
(mem. op., not designated for publication)).
We modify the judgment to delete the assessment of $4,355 in attorney’s fees.
We affirm the trial court’s judgment as modified and grant counsel’s motion to withdraw.3
See TEX. R. APP. P. 43.2(b).
Judy C. Parker
Justice
Do not publish.
3 Counsel shall, within five days after the opinion is handed down, send appellant a copy of the
opinion and judgment, along with notification of appellant’s right to file a pro se petition for discretionary
review. See TEX. R. APP. P. 48.4. This duty is an informational one, not a representational one. It is
ministerial in nature, does not involve legal advice, and exists after the court of appeals has granted
counsel’s motion to withdraw. In re Schulman, 252 S.W.3d at 411 n.33.
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