                                   NO. 12-13-00351-CR

                           IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

OURTIA CLAY WASHINGTON, JR.,                     §      APPEAL FROM THE 241ST
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §      SMITH COUNTY, TEXAS

                                   MEMORANDUM OPINION
       Ourtia Clay Washington, Jr. appeals his conviction for arson. He raises two issues on
appeal relating to the imposition of attorney’s fees and court costs. We modify and affirm as
modified.


                                           BACKGROUND
       A Smith County grand jury returned an indictment against Appellant for the offense of
arson. Appellant pleaded guilty to the offense with no agreement on punishment. A presentence
investigation was conducted and a sentencing hearing was held. At the conclusion of the
hearing, the trial court found Appellant guilty and assessed punishment at forty years of
imprisonment. This appeal followed.


                              COURT COSTS AND ATTORNEY’S FEES
       In his first issue, Appellant contends that the trial court erred by imposing attorney’s fees
as court costs and by ordering that funds be withdrawn from his inmate trust account. In his
second issue, Appellant contends that the evidence is legally insufficient for the trial court to
assess costs. The State did not file a brief.
Standard of Review and Applicable Law
       When the imposition of court costs is challenged on appeal, we review the assessment of
costs to determine if there is a basis for the cost, not to determine if there is sufficient evidence
offered at trial to prove each cost. Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App.
2014). Although a defendant is entitled to notice and an opportunity to be heard when the state
attempts to withdraw funds from his inmate trust account, neither needs to occur before the funds
are withdrawn. Cardenas v. State, 423 S.W.3d 396, 399 (Tex. Crim. App. 2014) (citing Harrell
v. State, 286 S.W.3d 315, 319-21 (Tex. 2009)).
       “If the court determines that a defendant has financial resources that enable him to offset
in part or in whole the costs of the legal services provided” the court “shall order the defendant to
pay . . . as court costs the amount that it finds the defendant is able to pay.” See TEX. CODE
CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2014). The trial court’s determination that a
defendant has the financial resources to offset the costs of the legal services provided must be
supported by some factual basis in the record. See id.; Mayer v. State, 309 S.W.3d 552, 557
(Tex. Crim. App. 2010). Absent a finding that the defendant has the financial resources and
ability to pay, the evidence will be insufficient to support the imposition of attorney’s fees. See
id.; Johnson v. State, 405 S.W.3d 350, 354 (Tex. App.—Tyler 2013, no pet.) (citations omitted).
Discussion

       The judgment of conviction assesses $579.00 as court costs and contains an order of
withdrawal (Attachment A) reflecting the same amount.             The bill of costs includes the
assessment of attorney’s fees in the amount of $300.00.
       The record shows that the trial court appointed counsel to represent Appellant at trial and
later appointed counsel to represent him on appeal. There is no factual basis in the record that
shows Appellant has the financial resources to enable him to offset in part or in whole the costs
of the legal services provided. See id. Accordingly, there is no basis to support the imposition of
attorney’s fees as court costs. Id. We sustain Appellant’s first and second issues.


                                           DISPOSITION
       Having sustained Appellant’s first and second issues, we modify the trial court’s
judgment to reflect that the amount of court costs is $279.00. See TEX. R. APP. P. 43.2(b). We
also modify Attachment A to delete the assessment of attorney’s fees and to state that the total



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amount of “court costs, fees and/or fines and/or restitution” is $279.00. We affirm the judgment
as modified. See TEX. R. APP. P. 43.2(b).


                                                                JAMES T. WORTHEN
                                                                   Chief Justice


Opinion delivered August 20, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




                                                           3
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                           AUGUST 20, 2014


                                          NO. 12-13-00351-CR


                              OURTIA CLAY WASHINGTON, JR.,
                                        Appellant
                                           V.
                                  THE STATE OF TEXAS,
                                        Appellee


                                 Appeal from the 241st District Court
                         of Smith County, Texas (Tr.Ct.No. 241-1015-13)

                       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 reflect that the amount of court costs is $279.00. We
also modify Attachment A to delete the assessment of attorney’s fees and to state that the total
amount of “court costs, fees and/or fines and/or restitution” is $279.00; 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., Griffith, J., and Hoyle, J.
