Opinion
NO. 09-11-00415-CR
01-04-2012
GREG RICHARD ERWIN, JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 07-01245
MEMORANDUM OPINION
Greg Richard Erwin, Jr. pleaded guilty to burglary of a building. Under a plea bargain agreement, the trial court deferred adjudication of guilt and placed him on unadjudicated community supervision for four years. The State filed a motion to revoke the community supervision order. Erwin pleaded "true" to four violations. The trial court found he violated the order's terms, revoked his community supervision, and sentenced him to two years of confinement in the state jail.
Appellate counsel filed an Anders brief that presents counsel's professional evaluation of the record and concludes there are "no meritorious issues." See Anders v.California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). On September 15, 2011, we granted an extension of time for Erwin to file a pro se brief. We have not received a pro se response from Erwin.
We have reviewed the appellate record, the Anders brief, and the State's brief. The State points out that the record demonstrates Erwin's inability to pay attorney fees and argues the judgment should be reformed. The record reveals that Erwin was appointed counsel at the trial court and appellate levels, because he is indigent. The deferred adjudication order and the balance sheet of administrative costs include appointed attorney fees of $1,000. The judgment orders Erwin to pay administrative fees; the $1,000 is part of those fees. Under the Code of Criminal Procedure, once an accused is found to be indigent, he is presumed to remain so throughout the proceedings unless there is proof of a material change in his circumstances. See Tex. Code Crim. Proc. Ann. arts. 26.04(p), 26.05(g) (West Supp. 2011); Armstrong v. State, 340 S.W.3d 759, 765-67 (Tex. Crim. App. 2011); Mayer v. State, 309 S.W.3d 552, 553-58 (Tex. Crim. App. 2010). Nothing in the record indicates a change in Erwin's financial circumstances, and the record contains no determination by the trial court that Erwin has the ability to pay attorney fees.
We modify the judgment adjudicating guilt to delete the portion requiring Erwin to pay $1,000 in attorney fees. We need not order appointment of new counsel to re-brief the appeal. Compare Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). We find no other arguable error. We affirm the judgment as modified.
AFFIRMED AS MODIFIED.
___________
DAVID GAULTNEY
Justice
Do Not Publish
Before McKeithen, C.J., Gaultney and Kreger, JJ.