Opinion
No. 06-20-00048-CR
11-12-2020
WINFORID LAJOYCE SOLOMON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 124th District Court Gregg County, Texas
Trial Court No. 47097-B Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
Winforid LaJoyce Solomon entered an open plea of guilty to unlawful possession of a firearm by a felon. The trial court sentenced Solomon to ten years' imprisonment and ordered her to pay $663.00 in attorney fees for the counsel it appointed Solomon after finding her indigent. In her sole point of error on appeal, Solomon argues that the evidence is insufficient to sustain a finding that she had the ability to pay attorney fees. We agree and modify the trial court's judgment and bill of costs by deleting the $663.00 assessment. As modified, we affirm the trial court's judgment.
Because the trial court found Solomon indigent, she was presumed to remain indigent absent proof of a material change in her circumstances. See TEX. CODE CRIM. PROC. ANN. arts. 26.04(p), 26.05(g); Walker v. State, 557 S.W.3d 678, 689 (Tex. App.—Texarkana 2018, pet. ref'd). Even so, the trial court, which also found Solomon indigent after trial for purposes of appeal, assessed $663.00 in attorney fees against her.
Under Article 26.05(g) of the Texas Code of Criminal Procedure, a trial court has the authority to order the reimbursement of court-appointed attorney fees only if "the judge determines that a defendant has financial resources that enable [her] to offset in part or in whole the costs of the legal services provided . . . , including any expenses and costs." TEX. CODE CRIM. PROC. ANN. art. 26.05(g). "[T]he 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" of legal services provided. Armstrong v. State, 340 S.W.3d 759, 765-66 (Tex. Crim. App. 2011) (quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)).
Here, the trial court's judgment recited a finding that Solomon had the resources to pay for court-appointed counsel. However, a finding under Article 26.05(g) must be supported by sufficient evidence. Mayer, 309 S.W.3d at 556. Solomon argues that the evidence is insufficient to support the trial court's finding that she had the ability to pay attorney fees, and the State does not contest the issue. We have also scoured the appellate record and conclude that nothing supported the trial court's finding that Solomon had a material change in her financial circumstances that provided her with the ability to pay attorney fees.
"Appellate courts 'have the authority to reform judgments and affirm as modified in cases where there is non reversible error.'" Walker, 557 S.W.3d at 690 (quoting Ferguson v. State, 435 S.W.3d 291, 294 (Tex. App.—Waco 2014, pet. struck) ("comprehensively discussing appellate cases that have modified judgments")). We sustain Solomon's sole point of error.
We modify the trial court's judgment and the bill of costs by deleting the assessment of $663.00 for attorney fees. As modified, we affirm the trial court's judgment.
Ralph K. Burgess
Justice Date Submitted: August 24, 2020
Date Decided: November 12, 2020 Do Not Publish