Burke v. State, 261 S.W.3d 438 (Tex. App. 2008). · Go Syfert
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Burke v. State, 261 S.W.3d 438 (Tex. App. 2008). Cases Citing This Book View Copy Cite
17 citation events (17 in the last 25 years) across 1 distinct court.
Strongest positive: Armstrong v. State (texapp, 2010-08-30)
Top citers, strongest first. 12 distinct citers. How cited ↗
discussed Cited as authority (rule) Armstrong v. State (2×)
Tex. App. · 2010 · confidence medium
In support of this contention, Appellant relies upon the decision in Burke v. State, 261 S.W.3d 438, 439 (Tex.App.-Austin 2008, no pet.) (holding that a judgment assessing an undetermined amount of attorneys’ fees was error where the trial court did not order the defendant to pay a specific amount of attorneys’ fees in either its oral pronouncement or written judgment).
discussed Cited as authority (rule) Alton Armstrong v. State
Tex. App. · 2010 · confidence medium
In support of this contention, Appellant relies upon the decision in Burke v. State, 261 S.W.3d 438, 439 (Tex.App.--Austin 2008, no pet.) (holding that a judgment assessing an undetermined amount of attorneys' fees was error where the trial court did not order the defendant to pay a specific amount of attorneys' fees in either its oral pronouncement or written judgment).
discussed Cited as authority (rule) Alton Armstrong v. State
Tex. App. · 2010 · confidence medium
In support of this contention, Appellant relies upon the decision in Burke v. State, 261 S.W.3d 438, 439 (Tex.App.--Austin 2008, no pet.) (holding that a judgment assessing an undetermined amount of attorneys' fees was error where the trial court did not order the defendant to pay a specific amount of attorneys' fees in either its oral pronouncement or written judgment).
discussed Cited as authority (rule) Christopher Demont Smith v. State
Tex. App. · 2010 · confidence medium
In support of this prong of his attack, Appellant relies upon the decision in Burke v. State, 261 S.W.3d 438, 439 (Tex.App.--Austin 2008, no pet.) ( holding that a judgment assessing an undetermined amount of attorney's fees was error where the trial court did not order the Defendant to pay a specific amount of attorney's fees either in its oral pronouncement or its written judgment).
discussed Cited as authority (rule) in the Interest of A. N. B., a Child
Tex. App. · 2010 · confidence medium
In support of this prong of his attack, Appellant relies upon the decision in Burke v. State, 261 S.W.3d 438, 439 (Tex.App.--Austin 2008, no pet.) (holding that a judgment assessing an undetermined amount of attorney's fees was error where the trial court did not order the Defendant to pay a specific amount of attorney's fees either in its oral pronouncement or its written judgment).
discussed Cited as authority (rule) Christopher Demont Smith v. State
Tex. App. · 2010 · confidence medium
In support of this prong of his attack, Appellant relies upon the decision in Burke v. State, 261 S.W.3d 438, 439 (Tex.App.--Austin 2008, no pet.) (holding that a judgment assessing an undetermined amount of attorney's fees was error where the trial court did not order the Defendant to pay a specific amount of attorney's fees either in its oral pronouncement or its written judgment).
discussed Cited as authority (rule) Shane Sepeda v. State (2×) also: Cited "see"
Tex. App. · 2010 · confidence medium
As support for his position, appellant cites Mayer v. State, 278 S.W.3d 898 , 901 (Tex.App.--Amarillo 2008, pet. ref’d) and Burke v. State, 261 S.W.3d 438, 439 (Tex.App.--Austin 2008, no pet.).
discussed Cited as authority (rule) Shane Sepeda v. State (2×) also: Cited "see"
Tex. App. · 2010 · confidence medium
As support for his position, appellant cites Mayer v. State , 278 S.W.3d 898 , 901 ( Tex.App .--Amarillo 2008, pet. ref’d ) and Burke v. State , 261 S.W.3d 438, 439 ( Tex.App .--Austin 2008, no pet.).
discussed Cited as authority (rule) Shane Sepeda v. State (2×) also: Cited "see"
Tex. App. · 2010 · confidence medium
As support for his position, appellant cites Mayer v. State, 278 S.W.3d 898 , 901 (Tex.App.--Amarillo 2008, pet. ref'd) and Burke v. State, 261 S.W.3d 438, 439 (Tex.App.--Austin 2008, no pet.).
discussed Cited as authority (rule) Calvin Jarrod Hester v. State
Tex. App. · 2009 · confidence medium
The second prong of Appellant's attack is that the trial court erred because it did not orally pronounce the assessment of attorneyÂ’s fees at sentencing, nor did it declare the precise amount of attorney's fees in its written judgment. Â In support of this prong of his attack, Appellant relies upon the decision in Burke v. State, 261 S.W.3d 438, 439 (Tex.App.--Austin 2008, no pet.) ( holding that a judgment assessing an undetermined amount of attorney's fees was error where the trial court did not order the Defendant to pay a specific amount of attorney's fees either in its oral pronounce…
discussed Cited as authority (rule) Justin Curtis Oehlert v. State
Tex. App. · 2008 · confidence medium
As support for his position, appellant cites Mayer v. State , 278 S.W.3d 898 , 901 ( Tex.App .--Amarillo 2008, pet. refÂ’d ) and Burke v. State , 261 S.W.3d 438, 439 ( Tex.App .--Austin 2008, no pet.). Â However, as Burke points out, attorney fee awards are not punishment and need not be pronounced orally at sentencing. Â See Burke 261 S.W.3d at 438 ; see also Weir v. State , 278 S.W.3d 364, 367 ( Tex.Crim.App . 2009). Â Thus, we will focus our discussion on appellantÂ’s contention that the judgment did not contain a specified amount for attorney fees. Â Â Â Â Â Â Â Â Â Â Â…
discussed Cited as authority (rule) Double Ace, Inc., and Matthew Pope and Alyssa Womack and Donna Pope v. Bennie Dale Pope and Michael Deardorff
Tex. App. · 2005 · confidence medium
In support of this prong of his attack, Appellant relies upon the decision in Burke v. State, 261 S.W.3d 438, 439 (Tex.App.--Austin 2008, no pet.) ( holding that a judgment assessing an undetermined amount of attorney's fees was error where the trial court did not order the Defendant to pay a specific amount of attorney's fees either in its oral pronouncement or its written judgment).
Retrieving the full opinion text from the archive…
Christopher Daniel BURKE, Appellant
v.
the STATE of Texas, Appellee
03-08-00035-CR.
Court of Appeals of Texas.
Aug 14, 2008.
261 S.W.3d 438
2008 Tex. App. LEXIS 6218
2008 WL 3540171
Jeffrey D. Parker, The Jeff Parker Law Firm, Belton, TX, for Appellant., Bob D. Odom, Assistant District Attorney, Belton, TX, for State.
Law, Pemberton, Waldrop.
Cited by 13 opinions  |  Published

OPINION

G. ALAN WALDROP, Justice.

Christopher Daniel Burke was convicted of evading arrest with a motor vehicle based on his guilty plea and was sentenced to fifteen months in state jail. On appeal,[*439] he challenges the trial court’s assessment of attorneys’ fees. He complains that the evidence was factually insufficient to support the assessment and that the trial court erred by failing to announce in his presence the precise amount of attorneys’ fees assessed. We modify the judgment and affirm.

The trial court appointed an attorney for Burke under a statute relating to representation of indigent defendants. Tex. Code Crim. Proc. Ann. art. 26.04 (West Supp.2008). When sentencing Burke on November 30, 2007, the court stated, “I order that you pay any and all court costs and any attorney’s fees upon your release.” In its written judgment, dated December 7, 2007, the court filled in the “court costs” blank with “$238.00/ATTOR-NEY FEES TO BE DETERMINED.”

Burke complains that the trial court erred by failing to state the amount of attorneys’ fees he owes in both the oral pronouncement of sentence and the written judgment. We conclude that the court erred by failing to set an amount. Unlike the case in which we held that a trial court can defer determination of an amount recommended to be paid as a condition of parole until the time parole is being considered, see Figueroa v. State, 250 S.W.3d 490, 517-18 (Tex.App.-Austin 2008, pet. filed), the attorneys’ fees award in this case is part of the judgment and enforceable as such. Although attorneys’ fees are not punishment and need not be pronounced orally at sentencing in order to be part of the written judgment, see Weir v. State, 252 S.W.3d 85, 88 (Tex.App.-Austin 2008, pet. filed), we find no authority for the proposition that the trial court can postpone the determination of the fees owed indefinitely to some time well after the judgment becomes final. The statute provides that trial courts may “order the defendant to pay ... the amount that it finds the defendant is able to pay.” Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp.2008). While finding attorneys’ fees were owed, the trial court did not order Burke to pay an amount either in its oral pronouncement or its written judgment. That was error.

We modify the sentence and judgment by striking the indefinitely undefined assessment of attorneys’ fees. We affirm the judgment as modified.