Joe Luis Mermella v. State

IN THE

TENTH COURT OF APPEALS

No. 10-98-183-CR

     JOE LUIS MERMILLA,

                                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                                              Appellee

From the 81st District Court

Atascosa County, Texas

Trial Court # 98-01-0029-CRA

MEMORANDUM OPINION

      Appellant Joe Luis Mermilla pleaded guilty to burglary of a habitation enhanced by a prior felony conviction for possession of heroin. See Tex. Penal Code Ann. § 30.02(a) (Vernon 1994). Mermilla signed a written waiver of appeal at the time of his guilty plea. Pursuant to the State’s plea recommendation, the court assessed Mermilla’s punishment at twenty years’ imprisonment. Despite having waived his right to appeal, Mermilla filed a pro-se general notice of appeal.

      A criminal defendant may waive many of his rights, including the right to appeal a conviction. Hill v. State, 929 S.W.2d 607, 608 (Tex. App.—Waco 1996, no pet.); Doyle v. State, 888 S.W.2d 514, 517 (Tex. App.—El Paso 1994, pet. ref'd); Smith v. State, 858 S.W.2d 609, 611 (Tex. App.—Amarillo 1993, pet. ref'd). A knowing and intelligent waiver of the right to appeal is binding on the defendant and prevents him from appealing any issue in the cause without the consent of the court. Ex parte Tabor, 565 S.W.2d 945, 946 (Tex. Crim. App. 1978); Hill, 929 S.W.2d at 608. A defendant cannot overcome the waiver merely by filing a notice of appeal. Tabor, 565 S.W.2d at 946; Hill, 929 S.W.2d at 608.

      The record before us does not indicate that Mermilla obtained the permission of the trial court to appeal his conviction or that he disavowed his waiver. See Hill, 929 S.W.2d at 608. Moreover, Mermilla makes no attempt to raise the voluntariness of his waiver. See Flowers v. State, 935 S.W.2d 131, 134 (Tex. Crim. App. 1996). Because we conclude that the waiver is valid and binding, Mermilla is prevented from bringing this appeal. Accordingly, we dismiss the appeal.

                                                                   PER CURIAM

Before Chief Justice Davis,

      Justice Cummings, and

      Justice Vance

Appeal dismissed

Opinion delivered and filed December 31, 1998

Do not publish establishing ineffective assistance of counsel).  We overrule issue two.

Attorney’s Fees and Investigator’s Fees

For the purposes of assessing attorney’s fees and investigator’s fees, once an accused is found to be indigent, he is presumed to remain so through the proceedings absent proof of a material change in his circumstances.  Tex. Code Crim. Proc. Ann. art. 26.04(p) (West Supp. 2009); Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Watkins v. State, No. 10-10-00055-CR, 2010 Tex. App. LEXIS 9641 at *24 (Tex. App.—Waco Dec. 1, 2010, no pet. h.).  Accordingly if the defendant is found to be indigent at the outset of trial, there must be some evidence presented to the trial court of a change in financial circumstances before attorney’s fees and investigator’s fees can be assessed against the defendant.  See Mayer, 309 S.W.3d at 553.

In this case, Mayer was found to be indigent prior to trial and was appointed trial counsel.  No evidence indicating a change in his financial circumstances was proffered during the trial.  Additionally, the trial court determined that Mayer was indigent for purposes of appeal, ordered the appointment of appellate counsel, and granted Mayer a free record on appeal on account of his indigence.  Accordingly, as the presumption of indigence remains, we hold that the evidence is insufficient to support the trial court’s assessment.  See Tex. Code Crim. Proc. Ann. art. 26.04(p); Mayer, 309 S.W.3d at 557; Watkins, 2010 Tex. App. LEXIS 9641 at *24.  We consequently modify the trial court’s judgments to delete the orders to pay attorney’s fees and investigator’s fees and order Mayer to pay only the costs of court in the amount of $700.00.  See Mayer, 309 S.W.3d at 557.  We sustain issue three.

Multiple Orders

Mayer complains that the trial court erred by signing three separate “orders to withdraw funds” from his inmate trust account at TDCJ because each ordered the payment of the entirety of the court costs.  Mayer argues that he could potentially be required to pay the court costs three times according to the language of the “orders.”  These “orders” were signed separate and apart from the three judgments of conviction.

First, we question whether we have jurisdiction over this complaint in this appeal.  This is a criminal appeal.  The type of “orders” about which Mayer complains have been determined to be civil, not criminal in nature.  See In re Johnson, 280 S.W.3d 866 (Tex. Crim. App. 2008); Harrell v. State, 286 S.W.3d 315 (Tex. 2008).  Second, even if we have jurisdiction, as a prerequisite to presenting a complaint on appeal, a party must have made a timely and specific request, objection, or motion to the trial court.  Tex. R. App. P. 33.1(a)(1)(A).  The purpose of the specificity required in rule 33.1(a) is to (1) inform the court of the basis of the objection and give it an opportunity to rule on it; and (2) give opposing counsel the opportunity to respond to the complaint.  Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009).  Here, there is no indication that Mayer complained about the amounts contained in the “order to withdraw funds” once he received notice of them, either by filing a motion to rescind or otherwise.  See e.g., Harrell v. State, 286 S.W.3d 315, 317 (Tex. 2008) (considering trial court’s denial of motion to rescind); Randolph v. State, 323 S.W.3d 585, 586 (Tex. App.—Waco 2010, no pet.) (same).  As a result, any issue pertaining to the order to withdraw funds has not been preserved for our review.  Mayer’s fourth issue is overruled.

Conclusion

            We find that the trial court did not abuse its discretion by denying Mayer’s pre-trial motion regarding voir dire questions, nor did that constitute the inability to render effective assistance of counsel.  We find that the trial court erred by assessing attorney’s fees and investigator’s fees against Mayer and modify the judgments by deleting the assessment of attorney’s fees and investigator’s fees.  We find that the issue regarding the withdrawal “orders” is not properly before the Court or alternatively, was not preserved.  As modified, the judgments of conviction are affirmed.

                                                                        TOM GRAY

                                                                        Chief Justice

Before Chief Justice Gray,

            Justice Davis, and

            Justice Scoggins

Modified, and As Modified, Affirmed

Opinion delivered and filed February 23, 2011

Do not publish

[CRPM]