Christopher Lee Rodriguez v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00226-CR

CHRISTOPHER LEE RODRIGUEZ, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 320th District Court
Potter County, Texas
Trial Court No. 083458-D-CR, Honorable Steven Denny, Presiding

February 25, 2025
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

In March 2024, following a plea of guilty, Appellant, Christopher Lee Rodriguez,

was convicted of assault family violence with a previous conviction and was assessed a

ten-year sentence, suspended in favor of three years’ community supervision.1 The State

moved to revoke community supervision and in June 2024, the trial court signed a

judgment doing so and imposed the original sentence of ten years. The summary portion

1 TEX. PENAL CODE ANN. § 22.01(b)(2)(A).
of the trial court’s order recites that Appellant’s sentence shall run consecutively. By four

issues, Appellant maintains (1) the trial court abused its discretion in ordering his

sentence to be served consecutively to any prior sentence; (2) the trial court’s cumulation

order is void for lack of specificity of any previous conviction; (3) the trial court erred in

ordering him to pay court-appointed attorney’s fees upon his release; and (4) trial counsel

was ineffective for failing to object to the assessment of attorney’s fees in the original

judgment. We reform and modify the revocation judgment.

Appellant does not challenge the sufficiency of the evidence to support the

revocation judgment. Thus, only facts necessary to disposition of his issues will be

discussed.

ISSUES ONE AND TWO—IMPOSITION OF CUMULATIVE SENTENCES

Appellant asserts the trial court abused its discretion in ordering his sentence in

the instant case to be served consecutively to any prior sentence and by issue two, he

contends the cumulation order was void because it lacked specificity of any previous

conviction.

A trial court has broad discretion to cumulate sentences. TEX. CODE CRIM. PROC.

ANN. art. 42.08(a). Here, however, the State concedes there are no eligible sentences

with which to cumulate Appellant’s current sentence. Although the State did introduce

judgments from 2009 and 2019 for consideration as punishment evidence, the sentences

imposed therein ceased to operate for purposes of article 42.08.2 According to the State,

2 In 2009, Appellant was adjudicated guilty of robbery and sentenced to confinement for two years.

That same year he was convicted of burglary of a vehicle, enhanced, and sentenced to confinement for
2
Appellant also had a misdemeanor conviction for which he was granted community

supervision. Article 42.08(c) prohibits a trial court from cumulating a sentence on

completion of a suspended sentence.

On the record before us, the trial court abused its discretion when it pronounced

Appellant’s current sentence and added, “I will require it to run consecutive to any other

cases that you have.” The summary portion of the Judgment Revoking Community

Supervision is reformed to reflect “THIS SENTENCE SHALL RUN CONCURRENTLY.”

Issues one and two are sustained.

ISSUE THREE—ASSESSMENT OF COURT-APPOINTED ATTORNEY’S FEES

By issue three, Appellant asserts the trial court erred in ordering him to pay court-

appointed attorney’s fees in the original judgment and revocation judgment upon his

release.3 The State concedes the revocation judgment, but not the original judgment,

should be reformed to clarify that no attorney’s fees are presently due and owing.

The summary portion of the revocation judgment assesses court costs “As per

Attached Bill of Cost.” The Bill of Cost generated on July 1, 2024, includes a charge of

$1,575.00 for attorney’s fees. It also contains a notation that “other fees may be applied

at a later date.” The last line in the Bill of Cost provides, “Attorney fees are not collected

180 days. In 2019, Appellant’s community supervision for the previous assault family violence conviction
was revoked and he was sentenced to confinement for three years.

3 Appellant complains of the assessment of attorney’s fees in both the original judgment and the

revocation judgment. In this issue, we address the attorney’s fees in the revocation judgment only and
address the attorney’s fees in the original judgment in issue four.
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until the court finds the defendant able to pay” pursuant to article 26.05(g) of the Code of

Criminal Procedure.

At the inception of the case, the trial court determined Appellant was indigent and

appointed him counsel throughout the proceedings. A defendant who is determined by

the court to be indigent is presumed to remain indigent for the remainder of the

proceedings unless a material change in the defendant’s financial circumstances occurs.

TEX. CODE CRIM. PROC. ANN. art. 26.04(p). Neither defense counsel nor the State moved

for reconsideration of the indigency determination. See id. The record contains no

evidence of a material change in Appellant’s financial circumstances. Nevertheless, the

trial court made a special finding in the revocation judgment as follows:

The Court FINDS that Defendant has financial resources that enable
Defendant to offset in part or in whole the cost of the legal services provided
to Defendant. Therefore, the Court ORDERS Defendant to pay AS PER
ATTACHED BILL OF COSTS as court costs to the County.

The State concedes there is no evidence to support the present assessment of attorney’s

fees to be paid in the future. The State suggests modification to the special finding as

follows:

The Court FINDS that Defendant has financial resources that enable
Defendant to offset in part or in whole the cost of the legal services provided
to Defendant. Therefore, [T]he Court ORDERS Defendant to pay AS PER
ATTACHED BILL OF COSTS as court costs to the County, with the
exception of attorney’s fees which are not here assessed.

We agree with the State’s suggestion and modify the special finding in the revocation

judgment as suggested. We delete the assessment of $1,575.00 from the Bill of Cost

generated on July 1, 2024. See Alston v. State, __ S.W.3d __, No. 07-24-00253-CR,
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2024 Tex. App. LEXIS 8884, at *4 (Tex. App.—Amarillo Dec. 19, 2024, no pet.). Issue

three is sustained in part and overruled in part as to Appellant’s argument that he should

not be required to pay any attorney’s fees upon his release related to the original judgment

of conviction.4

ISSUE FOUR—INEFFECTIVE ASSISTANCE OF COUNSEL

Alternatively, Appellant seeks relief if his first three issues are not sustained;

because issue three was sustained only in part as it relates to attorney’s fees in the

revocation judgment and not the original judgment, we address issue four.

Referencing this Court’s recent opinion in Tunstall v. State, No. 07-24-00269-CR,

2024 Tex. App. LEXIS 8560 (Tex. App.—Amarillo Dec. 10, 2024, no pet.) (mem. op., not

designated for publication), Appellant seeks a declaration of ineffective assistance of

counsel for his failure to object at the original plea hearing to assessment of court-

appointed attorney’s fees. In Tunstall, this Court was presented with the same argument

that attorney’s fees incurred during revocation proceedings should not be treated

differently than those incurred for the initial guilty plea. Id. at *3–4. The State maintains

Appellant’s issue four is forfeited because it was not raised in a direct appeal of the

original judgment of conviction. A claim of ineffective assistance of counsel does not

require an objection to be raised on appeal.

To establish a claim based on ineffective assistance, an appellant must show (1)

his counsel’s representation fell below the objective standard of reasonableness and (2)

4 We note the Bill of Cost generated on March 25, 2024, for the original judgment does not contain

a line item for attorney’s fees but does provide that “other fees may be applied at a later date.”
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there is a reasonable probability that but for counsel’s deficiency the result of the

proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694,

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In other words, an appellant must show his

trial counsel’s performance was deficient and he was prejudiced by the deficiency. State

v. Gutierrez, 541 S.W.3d 91, 98 (Tex. Crim. App. 2017).

The Plea Memorandum, signed by Appellant and his counsel, was admitted into

evidence. By his signature, Appellant acknowledged an understanding and agreement

to be liable for “Court Costs and Court Appointed Attorney Fees, if any.” As we reiterated

in Tunstall, when a defendant accepts a condition of community supervision pursuant to

a plea agreement, akin to a contractual agreement, he cannot challenge that condition on

direct appeal if he did not complain in the trial court that the condition was objectionable.

Tunstall, 2024 Tex. App. LEXIS 8560, at *4.

To prevail on a claim of ineffectiveness for counsel’s failure to object, a party must

show the trial court would have erred in overruling the objection. In re M.M., 2020 Tex.

App. LEXIS 6816, at *20 (Tex. App.—Amarillo Aug. 25, 2020, no pet.) (mem. op.).

Appellant agreed to pay fees as a condition of probation, and a reasonable strategy could

involve withholding an objection to avoid jeopardizing the plea agreement. We cannot

speculate on counsel’s failure to object to a condition in a plea agreement that does not

impose confinement. Appellant has not demonstrated that had counsel at the original

plea hearing objected to assessment of court-appointed attorney’s fees, the result of the

proceedings would have been different. We decline to find counsel ineffective for failing

to object to assessment of attorney’s fees as a condition of the plea agreement. Appellant

has not satisfied the two prongs of Strickland necessary to prevail on an ineffectiveness
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claim. We conclude Appellant is not relieved of paying any attorney’s fees related to the

original judgment of conviction. Issue four is overruled.

CONCLUSION

The summary portion of the Judgment Revoking Community Supervision is

modified to reflect “THIS SENTENCE SHALL RUN CONCURRENTLY.” On page 2 of

the same judgment, the special finding on Appellant’s ability to pay is modified as follows:

The Court FINDS that Defendant has financial resources that enable
Defendant to offset in part or in whole the cost of the legal services provided
to Defendant. Therefore, [T]he Court ORDERS Defendant to pay AS PER
ATTACHED BILL OF COSTS as court costs to the County, with the
exception of attorney’s fees which are not here assessed.

In all other respects, the trial court’s Judgment Revoking Community Supervision is

affirmed.

The trial court clerk is ordered to prepare and file a corrected judgment reflecting

the reformations and provide a copy of that judgment to this Court, Appellant, and to the

Texas Department of Criminal Justice.

Alex Yarbrough
Justice

Do not publish.

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