Benito, Rigoberto v. The State of TexasAppeal from 401st Judicial District Court of Collin County (memorandum opinion )
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AFFIRMED AS MODIFIED and Opinion Filed September 26, 2013. S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-00375-CR RIGOBERTO BENITO V. THE STATE OF TEXAS, Appellee On Appeal from the 401st Judicial District Court Collin County, Texas Trial Court Cause No. 401-81659-09 MEMORANDUM OPINION Before Justices Fillmore, Myers, and Maloney 1 Opinion by Justice Maloney The jury convicted Rigoberto Benito of continuous sexual abuse and indecency with a child and sentenced him to fifty-five years confinement for continuous sexual abuse and sentenced him to five years confinement for indecency with a child. The trial court ordered the sentences to be served concurrently. In a single point of error, appellant complains the trial court erred in assessing court appointed attorney s fees as court costs. The State agrees the record contains no evidence to support the fees assessed because appellant was indigent. Once the trial court finds a defendant indigent, we presume he remains indigent for the remainder of the proceedings unless a material change occurs in his financial resources. See 1 The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2012). To assess attorney s fees, the trial court must determine the defendant has the financial resources to cover those costs. See Youkers v. State, 400 S.W.3d 200, 212 13 (Tex. App. Dallas, pet. ref d); see also TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2012); Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). Neither the State nor appellant cites us to any evidence in the record that appellant s financial circumstances have materially changed since the trial court determined that he was indigent. We agree that the evidence does not support an assessment of attorney s fees as court costs. Consequently, we sustain appellant s issue and modify the trial s judgment by deleting the order taxing the cost of attorney s fees against appellant as court costs. We affirm the trial court s judgment as modified. /Frances Maloney/ FRANCES MALONEY JUSTICE, ASSIGNED Do Not Publish TEX. R. APP. P. 47 120375F.U05 2 S Court of Appeals Fifth District of Texas at Dallas JUDGMENT RIGOBERTO BENITO, Appellant No. 05-12-00375-CR On Appeal from the 401st Judicial District Court, Collin County, Texas Trial Court Cause No. 401-81659-09. Opinion delivered by Justice Maloney. Justices Fillmore and Myers participating. V. THE STATE OF TEXAS, Appellee Based on the Court s opinion of this date, the judgment of the trial court is MODIFIED as follows: We modify the trial court's judgment to delete the order taxing the cost of attorney s fees against appellant as court costs. As MODIFIED, the judgment is AFFIRMED. Judgment entered this 26th day of September, 2013. /Frances Maloney/ FRANCES MALONEY JUSTICE, ASSIGNED 3
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