Opinion
NUMBER 13-17-00041-CR
08-17-2017
MICKEL MARK POYNEER, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 452nd District Court of McCulloch County, Texas.
MEMORANDUM OPINION Before Justices Rodriguez, Contreras, and Benavides
Memorandum Opinion by Justice Benavides
Pursuant to a docket-equalization order issued by the Supreme Court of Texas, this appeal was transferred to this Court from the Third Court of Appeals in Austin. See TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through Ch. 49, 2017 R.S.)
Appellant Mickel Mark Poyneer pleaded guilty to burglary of a habitation, a second-degree felony. See TEX. PENAL CODE ANN. § 30.02(c)(2) (West, Westlaw through Ch. 49, 2017 R.S.). Poyneer elected to have the trial court assess punishment. After conducting a punishment hearing, the trial court sentenced Poyneer to fourteen years' confinement at the Texas Department of Criminal Justice—Institutional Division with credit for time served. The trial court further ordered that Poyneer pay, among other things, $1,000 in attorney's fees.
By one issue, Poyneer asserts that the trial court erred in ordering him to pay $1,000 in attorney's fees because the evidence is insufficient to rebut the presumption of his indigence. We affirm as modified.
I. COURT-ORDERED DEFENDANT ATTORNEY'S FEES
Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
In Texas, if a trial court 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 by appointed counsel, the trial court shall order the defendant to pay during the pendency of the charges or, if convicted, the amount that the judge finds the defendant is able to pay as court costs. TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West, Westlaw through Ch. 49, 2017 R.S.); see id. art. 1.051(c)-(d) (discussing the right of an indigent defendant to counsel in trial and appellate proceedings). Furthermore, the defendant may not be ordered to pay an amount that exceeds: (1) the actual costs, including any expenses and costs, paid by the county for the legal services provided by an appointed attorney; or (2) if the defendant was represented by a public defender's office, the actual amount, including any expenses and costs, that would have otherwise been paid to an appointed attorney had the county not had a public defender's office. Id.
A defendant who challenges the sufficiency of the evidence supporting his conviction and subsequent judgment is not required to assert a trial objection in order to preserve an appellate claim. See Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). The same is true for a defendant who wishes to challenge the order to reimburse court-appointed attorney's fees on appeal. See id.
Here, the undisputed record shows that the trial court appointed counsel to Poyneer on July 5, 2016, after determining that Poyneer was "too poor to employ counsel." Poyneer's appointed counsel filed an attorney's-fee voucher requesting compensation of $1,050 from the trial court, which was approved on November 22, 2016. After sentencing Poyneer, the trial court again determined that Poyneer was "too poor to employ counsel" and appointed appellate counsel. Based on this record, Poyneer asserts that the evidence is insufficient to rebut the presumption of his indigence and to support the trial court's order requiring him to pay $1,000 in attorney's fees. The State agrees with Poyneer, and so do we.
A defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant's financial circumstances occurs. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West, Westlaw through Ch. 49, 2017 R.S.). If there is a material change in financial circumstances after a determination of indigency or nonindigency is made, the defendant, the defendant's counsel, or the attorney representing the State may move for reconsideration of the determination. Id.; see Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim. App. 2013).
The record in this case is devoid of any evidence showing a material change in Poyneer's financial circumstances from the initial appointment of trial counsel through this appeal. Therefore, we conclude that the evidence is insufficient to support the trial court's order. When insufficient evidence supports a trial court's ordering of reimbursement of attorney's fees, the proper appellate remedy is to reform the trial court's judgment by deleting the fees assessed. See Cates, 402 S.W.3d at 252. Accordingly, we modify the trial court's judgment to delete the $1,000 attorney's fees assessed by the trial court. See TEX. R. APP. P. 43.2(b).
We sustain Poyneer's sole issue.
II. CONCLUSION
We affirm the judgment as modified.
GINA M. BENAVIDES,
Justice Do not publish.
TEX. R. APP. P. 47.2 (b). Delivered and filed the 17th day of August, 2017.