Opinion
NO. 09-11-00374-CR
01-04-2012
RYAN ONEAL TURNER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 09-07260
MEMORANDUM OPINION
Appellant Ryan Oneal Turner appeals from the trial court's revocation of his community supervision and adjudication of guilt. Turner pled guilty to the offense of burglary of a habitation. The trial court found the evidence sufficient to find Turner guilty, but deferred finding him guilty. The trial court placed Turner on community supervision for four years and assessed a fine of $1,000. The State subsequently filed a motion to revoke Turner's unadjudicated community supervision. Turner pled "true" to six violations of the terms of his community supervision. The trial court found that Turner violated the terms of the community supervision order, revoked Turner's community supervision, and imposed a sentence of 20 years of confinement. The trial court also assessed administrative fees of $2,810.
In his sole issue, Turner argues that the trial court erred in assessing attorney fees when he was indigent and there is no evidence of his ability to pay appointed fees. The administrative fee balance sheet indicates that $1,000 of the administrative fees is attributable to attorney fees.
Article 26.04(p) of the Code of Criminal Procedure provides that "[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 Supp. 2011). The Code further gives the trial court the authority to order a defendant to pay, in whole or in part, the costs of appointed counsel, if the court determines that the defendant has financial resources that enable him to offset the costs of his legal services. Id. art. 26.05(g).
Here, the trial court determined Turner was indigent when it initially appointed him counsel at his plea hearing, and again when it appointed him counsel at his motion to revoke hearing, and again when it appointed him counsel to represent him in this appeal. We find no evidence in the record to support a finding that Turner's financial circumstances had materially changed between the date the trial court initially appointed trial counsel and the date it rendered judgment. Id. art. 26.04(p); see also Roberts v. State, 327 S.W.3d 880, 883-84 (Tex. App.—Beaumont 2010, no pet.). Further, there is no determination or finding in the record that Turner had financial resources that would enable him to pay the appointed attorney fees. See Tex. Code Crim. Proc. Ann. art. 26.04(p). Without evidence to demonstrate this ability, the trial court erred in ordering reimbursement of appointed attorney fees. See Mayer v. State, 274 S.W.3d 898, 901-02 (Tex. App.—Amarillo 2008), aff'd, 309 S.W.3d 552 (Tex. Crim. App. 2010).
In its brief, the State agrees that there is no evidence to support the trial court's decision to charge Turner with his appointed attorney fees. We reform the trial court's judgment and subtract the $1,000 in appointed attorney fees from the administrative fees. We modify the trial court's judgment to reflect an administrative fee of $1,810. The judgment is affirmed as modified.
AFFIRMED AS MODIFIED.
___________
CHARLES KREGER
Justice
Do not publish
Before McKeithen, C.J., Kreger and Horton, JJ.
See Tex. R. App. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref'd).