Sheri Jane Hustead v. The State of Texas Appeal from 216th Judicial District Court of Gillespie County (memorandum opinion)
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-16-00807-CR Sheri Jane HUSTEAD, Appellant v. The STATE of Texas, Appellee From the 216th Judicial District Court, Gillespie County, Texas Trial Court No. 5772 Honorable N. Keith Williams, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Patricia O. Alvarez, Justice Delivered and Filed: September 13, 2017 AFFIRMED AS MODIFIED Appellant Sheri Jane Hustead was found guilty of possessing a controlled substance and was sentenced to two years of confinement in state jail. Her sentence was then suspended and she was placed on community supervision for four years. She was also ordered to pay $2,000 in courtappointed attorney’s fees. On appeal, Hustead argues the evidence is insufficient to support the trial court’s judgment against her for court-appointed attorney’s fees because the presumption of her indigence was never rebutted. The State agrees with Hustead. 04-16-00807-CR Article 26.05(g) of the Texas Code of Criminal Procedure permits the trial court to order a defendant to re-pay the costs of court-appointed attorney’s fees if the trial court “determines that a defendant has financial resources that enable the defendant to offset in part or in whole the costs of the legal services provided to the defendant . . . .” TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2016). Under article 26.05(g), “the 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.” Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim. App. 2013) (citation omitted). Here, on December 15, 2015, the trial court found Hustead to be indigent and appointed counsel to represent her. On September 13-14, 2016, Hustead’s trial was held. On November 10, 2016, the trial court sentenced Hustead. At no time during these proceedings did the trial court make a finding that Hustead’s financial status had changed. 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. 2016). Because the trial court found Hustead to be indigent and never found that her financial status had changed, there is no factual basis in the record to support the trial court’s determination that Hustead could pay her court-appointed attorney’s fees. See Cates, 402 S.W.3d at 252. We therefore modify the judgment to delete the requirement that Hustead pay courtappointed attorney’s fees. See id. As modified, the judgment of the trial court is AFFIRMED. Karen Angelini, Justice Do not publish -2-
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