Melissa Browning Hernandez v. The State of Texas Appeal from 392nd District Court of Henderson County (memorandum opinion by chief justice worthen)

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NO. 12-15-00112-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS MELISSA BROWNING HERNANDEZ, APPELLANT § APPEAL FROM THE 392ND V. § JUDICIAL DISTRICT COURT THE STATE OF TEXAS, APPELLEE § HENDERSON COUNTY, TEXAS MEMORANDUM OPINION Melissa Browning Hernandez appeals her felony conviction for theft. In her sole issue on appeal, Appellant contends that the evidence is insufficient to support the trial court’s order that she pay attorney’s fees. We modify the trial court’s judgment, and affirm as modified. BACKGROUND Appellant was indicted for the second degree felony offense of theft of an elderly person’s property in an amount greater than $20,000.00 but less than $100,000.00.1 The trial court determined that Appellant was indigent and appointed counsel to represent her. Appellant subsequently pleaded guilty to the charged offense, and the trial court accepted the plea. After a hearing on punishment, the trial court sentenced Appellant to six years of imprisonment. No evidence was presented by either side concerning Appellant’s indigence or attorney’s fees. The trial court’s judgment ordered that Appellant pay $750.00 in attorney’s fees. followed. 1 See TEX. PENAL CODE ANN. § 31.03(e)(5), (f)(3)(A) (West Supp. 2015). This appeal ATTORNEY’S FEES In her sole issue, Appellant contends that the evidence is legally insufficient to support the trial court’s assessment of attorney’s fees. She argues that the trial court found her indigent and that status has not changed. A trial court has the authority to assess attorney’s fees against a criminal defendant who received court appointed counsel. TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2015). Unless a material change in a criminal defendant’s financial resources is established by competent legal evidence, once that defendant has been found to be indigent, she is presumed to remain indigent for the remainder of the proceedings. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2015). Before any imposition of attorney’s fees, the trial court must determine that the defendant has financial resources which enable her to offset, in whole or in part, the cost of the legal services provided, and that determination must be supported by a factual basis in the record. Johnson v. State, 405 S.W.3d 350, 354 (Tex. App.—Tyler 2013, no pet.). If the record does not show that the defendant’s financial circumstances materially changed after the previous determination that she was indigent, the evidence will be insufficient to support the imposition of attorney’s fees. TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Mayer v. State, 309 S.W.3d 552, 553 (Tex. Crim. App. 2010). An appellant’s complaint about the sufficiency of the evidence of her financial resources and ability to pay is not waived by her failure to raise the complaint in the trial court. Mayer, 309 S.W.3d at 556. The record shows that the trial court found Appellant indigent and appointed counsel. However, the judgment indicates that Appellant was ordered to pay $750.00 in attorney’s fees. Moreover, there is no evidence in the record of a change in Appellant’s financial situation. Therefore, the trial court erred in ordering Appellant to pay the attorney’s fees. We sustain Appellant’s sole issue. DISPOSITION Where the evidence is insufficient to support a court’s order of reimbursement of attorney’s fees, the proper remedy is to reform the judgment by deleting the court appointed attorney’s fees. See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013). Accordingly, we modify the trial court’s judgment to delete the order that Appellant pay $750.00 in attorney’s fees. As modified, we affirm the trial court’s judgment. 2 JAMES T. WORTHEN Chief Justice Opinion delivered July 6, 2016. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J. (DO NOT PUBLISH) 3 COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS JUDGMENT JULY 6, 2016 NO. 12-15-00112-CR MELISSA BROWNING HERNANDEZ, Appellant V. THE STATE OF TEXAS, Appellee Appeal from the 392nd District Court of Henderson County, Texas (Tr.Ct.No. B-21,601) THIS CAUSE came on to be heard on the appellate record and the briefs filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s judgment below should be modified and, as modified, affirmed. It is therefore ORDERED, ADJUDGED and DECREED that the trial court’s judgment below be modified to delete the order that Appellant pay $750.00 in attorney’s fees; and as modified, the trial court’s judgment is affirmed; and that this decision be certified to the trial court below for observance. James T. Worthen, Chief Justice. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

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