Opinion
NO. 09-11-00253-CR
01-18-2012
DEITRA RENE SIMMONS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 08-03143
MEMORANDUM OPINION
Pursuant to a plea bargain agreement, Deitra Rene Simmons pleaded guilty to securing execution of a document by deception. The trial court found the evidence sufficient to find Simmons guilty, but deferred further proceedings, and placed Simmons on community supervision for five years. The State subsequently filed a motion to revoke Simmons's unadjudicated community supervision. Simmons pleaded "true" to violating six conditions of her community supervision. The trial court found that Simmons violated the conditions of her community supervision, found Simmons guilty of securing execution of a document by deception, and sentenced Simmons to eighteen months in state jail. In its judgment, the trial court assessed $3,384 in administrative fees, which included $1,000 in court-appointed attorney's fees. On appeal, Simmons contends that she is indigent and the record is insufficient to show her ability to pay the attorney's fees. The State concedes that the record is devoid of evidence showing that Simmons's financial circumstances have materially changed and that the judgment should be modified to delete the attorney's fees award. We affirm the trial court's judgment as modified.
The indictment spells Simmons's name as "Dietra Renee Simmons a/k/a Deitra Renee Simmons." The judgment spells Simmons's name as "Deitra Rene Simmons a/k/a Deitra Rene Simmons." We, therefore, refer to Simmons as "Deitra Rene Simmons" in accordance with the original name in the judgment.
A trial court may order reimbursement of court-appointed attorney's fees when the "defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided[.]" Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2011). "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." Id. § 26.04(p) (West Supp. 2011). A "defendant's financial resources and ability to pay are explicit critical elements in the trial court's determination of the propriety of ordering reimbursement of costs and fees." Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010).
Because amended sections 26.04 and 26.05 contain no material changes applicable to this case, we cite to the current versions of the statutes.
--------
The trial court determined that Simmons was indigent both when it appointed trial counsel and when it appointed appellate counsel. The record does not demonstrate that Simmons had the financial resources to pay the court-appointed attorney's fees and contains no evidence to support a finding that Simmons's financial circumstances had materially changed. See Mayer, 309 S.W.3d at 556; see also Roberts v. State, 327 S.W.3d 880, 883-84 (Tex. App.—Beaumont 2010, no pet.); Barrera v. State, 291 S.W.3d 515, 518 (Tex. App.—Amarillo 2009, no pet.) ("There must be some factual basis in the record illustrating that an accused is capable of paying a legal fee levied under art. 26.05(g)[.]"). Absent a material change in Simmons's financial circumstances that would enable her to pay the attorney's fees, Simmons is presumed indigent and the trial court improperly taxed Simmons with $1,000 in attorney's fees. See Tex. Code Crim. Proc. Ann. art. 26.04(p); see also Roberts, 327 S.W.3d at 884; Barrera, 291 S.W.3d at 518. Accordingly, we subtract the $1,000 attorney's fees from the judgment and modify the judgment to reflect an administrative fee of $2,384. See Mayer, 309 S.W.3d at 557; see also Barrera, 291 S.W.3d at 518. We affirm the judgment in all other respects.
AFFIRMED AS MODIFIED.
STEVE McKEITHEN
Chief Justice
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.