Roy Edward Smith v. The State of TexasAppeal from 4th District Court of Rusk County (memorandum opinion )

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In The Court of Appeals Sixth Appellate District of Texas at Texarkana No. 06-13-00187-CR ROY EDWARD SMITH, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 4th District Court Rusk County, Texas Trial Court No. CR 13-002 Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION Roy Edward Smith was convicted of retaliation, and the trial court sentenced Smith to twenty years confinement. 1 On appeal, Smith challenges only the trial court s assessment of attorney s fees against him. The State concedes error, and we agree; consequently, we will modify the trial court s judgment by deleting the assessment of attorney s fees against Smith. In all other respects, the trial court s judgment is affirmed. Article 26.05(g) of the Texas Code of Criminal Procedure governs the assessment of court-appointed attorney s fees. TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2013). A trial court s authority to order a defendant to repay the cost of court-appointed counsel depends upon the court s determination that the defendant has financial resources that enable him to offset in part or in whole the costs of legal services provided. Id. Once an accused is found to be indigent, he is presumed to remain so through the proceedings absent proof of a material change in his circumstances. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2013). Accordingly, to require a defendant to repay court-appointed attorney s fees, the State must present evidence that the defendant s financial circumstances have materially changed since the court s initial finding of indigence and that the defendant is now capable of paying some or all of those fees. See Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010) (striking order to pay attorney fees where defendant found indigent and qualified for courtappointed attorney at trial and on appeal). When evidence does not support a court s order to pay attorney s fees, the proper remedy is to delete the order. Id. at 557. 1 Retaliation is a third degree felony. TEX. PENAL CODE ANN. § 36.06(c) (West 2011). The State also alleged and proved a prior felony conviction. TEX. PENAL CODE ANN. § 12.42(a) (West Supp. 2013). 2 The record shows Smith applied for court-appointed counsel shortly after being indicted. The sworn request states that Smith was unemployed, without income or assets. The trial court, without specifically finding Smith indigent, appointed counsel. Viewing the record as a whole, including the State s concession, we will treat the trial court s appointment of counsel as an implied finding of indigence. There is nothing in the record demonstrating a material change in [Smith s] financial circumstances ; as a result, the presumption that Smith remain indigent was never rebutted. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p). There is no evidence in the record to support a determination that Smith can pay some or all of the assessed attorney s fees; therefore, the correct remedy is to modify the trial court s judgment by deleting the unsupported assessment. We modify the trial court s judgment to delete the assessment of $400.00 for attorney s fees. As modified, the trial court s judgment is affirmed. Jack Carter Justice Date Submitted: Date Decided: May 20, 2014 June 6, 2014 Do Not Publish 3

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