                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-11-00284-CR

GARY INMAN,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 52nd District Court
                             Coryell County, Texas
                         Trial Court No. FDWI-09-20104


                          MEMORANDUM OPINION


      In one issue, appellant, Gary James Inman, complains that there is insufficient

evidence to support the trial court’s judgment ordering him to pay his court-appointed

attorney’s fees because he was determined to be indigent. We modify the judgment to

delete the finding requiring Inman to pay his court-appointed attorney’s fees and affirm

the judgment as modified.
                                            I.       BACKGROUND

        In this case, Inman was charged by indictment with driving while intoxicated

(“DWI”). See TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2011). Because this was his

third DWI offense, Inman was subject to the punishment range corresponding with

third-degree felonies. See id. § 49.09(b)(2) (West Supp. 2011).

        Shortly thereafter, Inman was determined to be indigent and was appointed an

attorney to represent him.1 On December 10, 2010, Inman executed a financial affidavit

wherein he stated that he worked part-time as a professional mover and earned a gross

salary of $800 per month. However, he also averred that he does not have a spouse

contributing income to the household and that he does not have any assets or other

sources of income, including real estate, bank accounts, personal property, or

governmental assistance.2 Apparently relying on Inman’s financial affidavit, the trial

court entered an “Order for Payment of Cost of Legal Services.” In this order, the trial

court concluded “that the Defendant was not presently able to retain counsel to

represent him but that the Defendant has sufficient income, assets, and resources to

defray the cost of legal services paid by Coryell County in his behalf as provided by the

plan,” which required Inman to pay $50 per month starting on January 28, 2010 until



         1 Inman executed an initial financial affidavit pertaining to his personal recognizance bond. In

this affidavit, Inman noted that he earned $800 in gross salary as a day laborer; he had $62 in cash but no
bank accounts or real estate; and he owned a 1978 Chevy vehicle valued at approximately $1,500.

        2Inman’s December 10, 2010 affidavit did not address either the small amount of cash or the 1978
Chevy vehicle which were referenced in his earlier financial affidavit pertaining to the personal
recognizance bond. Given the limited record before us, we are unclear as to what happened to those
assets.


Inman v. State                                                                                      Page 2
the total sum of $1,000 was paid for legal services rendered. Nevertheless, the trial

court once again determined that Inman was indigent and appointed him counsel.

          After a jury trial, Inman was convicted of the charged offense and was sentenced

to six years’ incarceration in the Institutional Division of the Texas Department of

Criminal Justice with no fine. In the judgment, Inman was ordered to pay $509 in court

costs and $2,210 in “restitution,” which the judgment characterized as attorney’s fees.3

However, at the sentencing hearing, the trial court specifically noted that Inman is

required to pay $2,460 in attorney’s fees. This amount was reduced by $250 that Inman

allegedly had already paid, leaving a total of $2,210 owed.4 The trial court then certified

Inman’s right to appeal, and this appeal followed.

                                    II.      COURT-APPOINTED ATTORNEY’S FEES

          In his sole issue on appeal, Inman complains that there is insufficient evidence to

support the trial court’s judgment requiring him to pay his court-appointed attorney’s

fees because he was determined to be indigent in the trial court and on appeal and

because the record does not indicate that his financial situation had changed. We

agree.5




          We note that the assessment of attorney’s fees against a criminal defendant is not characterized
          3

as restitution but rather court costs. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2011);
Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010); see also Willis v. State, No. 10-09-00420-CR, 2010
Tex. App. LEXIS 8255, at *2 (Tex. App.—Waco Oct. 13, 2010, no pet.) (mem. op., not designated for
publication).

         Despite its statements during the punishment hearing, the trial court granted Inman’s “Motion
          4

and Affidavit for Free Appellate Record,” which was premised on a subsequent finding of indigency.

          5   The State has not filed an appellee’s brief in this matter.


Inman v. State                                                                                         Page 3
A. Applicable Law

        “Sufficiency of the evidence is measured by viewing all of the record evidence in

the light most favorable to the verdict.” Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim.

App. 2010); see Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed.

2d 560 (1979); see also Lucio v. State, 351 S.W.3d 878, 894-95 (Tex. Crim. App. 2011).6

        For the purpose of assessing attorney’s fees, once an accused is found to be

indigent, he is presumed to remain so throughout the proceedings absent proof of a

material change in his circumstances. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p)

(West Supp. 2011); see also Mayer v. State, No. 10-10-00302-CR, 2011 Tex. App. LEXIS

1369, at *6 (Tex. App.—Waco Feb. 23, 2011, pet. ref’d) (mem. op., not designated for

publication). Furthermore, the record must reflect some factual basis to support the

determination that Inman was capable of paying all or some of his attorney’s fees at the

time of the judgment. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West. Supp. 2011);

Barrera v. State, 291 S.W.3d 515, 518 (Tex. App.—Amarillo 2009, no pet.); see also

Stevenson v. State, No. 10-09-00358-CR, 2011 Tex. App. LEXIS 8302, at *3 (Tex. App.—

Waco Oct. 19, 2011, no pet.) (mem. op., not designated for publication); Willis v. State,

No. 10-09-00420-CR, 2010 Tex. App. LEXIS 8255, at *2 (Tex. App.—Waco Oct. 13, 2010,

        6  On appeal, Inman urges us to apply the now-extinct factual-sufficiency review of the record
evidence in this criminal case. The Court of Criminal Appeals in Brooks v. State, 323 S.W.3d 893, 912 (Tex.
Crim. App. 2010), abandoned the factual-sufficiency standard in criminal cases, instructing that we need
only consider the sufficiency of the evidence under the legal-sufficiency standard articulated in Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). As such, we analyze Inman’s
sufficiency claims under the Jackson legal-sufficiency standard of review. See Brooks, 323 S.W.3d at 902
(concluding that there is “no meaningful distinction between the Jackson v. Virginia legal sufficiency
standard and the . . . factual-sufficiency standard, and these two standards have become
indistinguishable.”); see also Harrison v. State, No. 14-10-00254-CR, 2011 Tex. App. LEXIS 9133, at *16 (Tex.
App.—Houston [14th Dist.] Nov. 17, 2011, no pet.) (mem. op., not designated for publication) (construing
a factual-sufficiency challenge as a legal-sufficiency challenge).

Inman v. State                                                                                        Page 4
no pet.) (mem. op., not designated for publication) (“If the State fails to present

evidence that the defendant is able to pay all or part of his court-appointed attorney’s

fees, then the trial court commits error by assessing any part of those fees as costs of

court.”). In instances where there is insufficient evidence to support the assessment of

court-appointed attorney’s fees, the proper remedy is to reform the judgment by

deleting the attorney’s fees. See Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App.

2010); see also Cain v. State, No. 10-11-00045-CR, 2011 Tex. App. LEXIS 8159, at *11 (Tex.

App.—Waco Oct. 12, 2011, no pet.) (mem. op., not designated for publication)

(modifying the judgment to delete the finding ordering appellant to pay his court-

appointed attorney’s and investigator’s fees).

       However, article 26.05(g) provides that, if the trial court determines that a

defendant has the financial resources that enable him to offset in whole or in part the

costs of the legal services provided, the court shall order him to pay, as court costs, the

amount that it finds the defendant is able to pay. TEX. CODE CRIM. PROC. ANN. art.

26.05(g); Mayer, 309 S.W.3d at 556.

B. Discussion

       In December 2010, the trial court entered an order determining that Inman could

pay all or some of the costs for the legal services provided and ordering him to pay $50

per month.       Apparently, this order was premised on Inman’s December 10, 2010

financial affidavit wherein he stated that he made $800 in gross monthly salary.

However, despite his alleged monthly salary, the trial court determined Inman to be

indigent and appointed him counsel.         At the sentencing hearing, the trial court

Inman v. State                                                                       Page 5
concluded that Inman was “partially indigent” and ordered him to pay $2,460 in

attorney’s fees as “restitution,” a characterization which, as we noted earlier, was

improper.7

        Based on our review of this record, we do not find sufficient evidence to support

the trial court’s requirement that Inman pay his court-appointed attorney’s fee. See

Mayer, 309 S.W.3d at 557; see also Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2788-89; Lucio,

351 S.W.3d at 894-95. Inman’s most recent financial affidavit executed approximately

six months prior to trial indicated that he had no cash on hand, no bank accounts, no

real estate, and no assets. While Inman’s affidavit does state that he earns a gross

monthly salary of $800, the State did not proffer any evidence demonstrating that

Inman was earning any money from his job as a professional mover or any other job or

that he had any assets on hand at the time of the judgment. See TEX. CODE CRIM. PROC.

ANN. art. 26.05(g); Barrera, 291 S.W.3d at 518; see also Stevenson, 2011 Tex. App. LEXIS

8302, at *3; Willis, 2010 Tex. App. LEXIS 8255, at *2. In fact, the State did not proffer any

evidence demonstrating Inman’s financial situation at the time of the judgment. See

TEX. CODE CRIM. PROC. ANN. art. 26.05(g); Barrera, 291 S.W.3d at 518; see also Stevenson,

2011 Tex. App. LEXIS 8302, at *3; Willis, 2010 Tex. App. LEXIS 8255, at *2.

        While we recognize that the trial court stated in open court that Inman had paid

$250 for legal services rendered and that Inman did not object to that characterization,

the record does not contain any documentation showing that such payments were



        7 None of the documents contained in the record specifically indicate a finding that Inman was or
is “partially indigent.”

Inman v. State                                                                                    Page 6
made by Inman. We find it telling that: (1) based on his December 10, 2010 financial

affidavit, Inman was determined to be indigent; and (2) no evidence in the record

indicates a material change in Inman’s financial situation.8 See TEX. CODE            OF   CRIM.

PROC. ANN. art. 26.04(p); see also Mayer, 2011 Tex. App. LEXIS 1369, at *6. Because

Inman was entitled to the presumption of indigence in light of the dearth of evidence

indicating a material change in his financial situation, we conclude that the portion of

the judgment ordering Inman to pay his court-appointed attorney’s fees is improper.

See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); see also Mayer, 2011 Tex. App. LEXIS 1369,

at *6. We therefore sustain Inman’s sole issue on appeal and modify the judgment to

delete the finding that orders Inman to pay his court-appointed attorney’s fees. See

Mayer, 309 S.W.3d at 557; see also Cain, 2011 Tex. App. LEXIS 8159, at *11.

                                        III.    CONCLUSION

       We modify the trial court’s judgment to delete the finding that orders Inman to

pay his court-appointed attorney’s fees. We affirm the judgment as modified.




                                                   AL SCOGGINS
                                                   Justice




       8  From what we can tell, no hearing was conducted to determine whether Inman’s financial
situation had materially changed.

Inman v. State                                                                             Page 7
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed as modified
Opinion delivered and filed March 14, 2012
Do not publish
[CR25]




Inman v. State                               Page 8
