                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-12-00176-CR

HAROLD ANDREW PIVONKA,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                          From the 361st District Court
                              Brazos County, Texas
                        Trial Court No. 09-03777-CRF-361


                          MEMORANDUM OPINION


      Appellant Harold Pivonka made an open plea of guilty to the offense of

indecency with a child (sexual contact).     At the sentencing hearing, the trial court

sentenced him to eight years’ imprisonment. Pivonka appealed. In his sole issue,

Pivonka contends that the trial court erred in allowing attorney’s fees and court costs to

be assessed against him after the trial court had found him indigent. The State agrees

with Pivonka that the judgment should be reformed by deleting the assessment of

attorney fees; however, the State argues that the court costs are properly included in the
judgment.

        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. 2012); see also Mayer v. State, No. 10-10-00302-CR, 2011 WL 653095, at *2

(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 Pivonka 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. 2012); 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 WL 4978316, at *1 (Tex. App.—Waco Oct. 19, 2011, no pet.)

(mem. op., not designated for publication); Willis v. State, No. 10-09-00420-CR, 2010 WL

4008368, at *1 (Tex. App.—Waco Oct. 13, 2010, 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.”). When 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, 309 S.W.3d at 557; see

also Cain v. State, No. 10-11-00045-CR, 2011 WL 4837723, at *4 (Tex. App.—Waco Oct. 12,

2011, no pet.) (mem. op., not designated for publication) (modifying judgment to delete

finding ordering appellant to pay court-appointed attorney’s and investigator’s fees).

        Article 26.05(g) provides, however, that, if the trial court determines that a

Pivonka v. State                                                                     Page 2
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.

        In this case, although there is no specific order in the clerk’s record showing that

the trial court found Pivonka indigent, the clerk’s record establishes that the trial court

did appoint Pivonka trial counsel. In its judgment sentencing Pivonka to eight years’

imprisonment, the trial court assessed attorney fees and court costs in the amounts of

$5,812.50 and $635.00, respectively.     Pivonka’s court-appointed trial counsel filed a

motion to withdraw but stated in the motion, “Defendant is indigent and is unable to

hire an attorney for purposes of appeal. Please appoint an attorney for this purpose.”

The trial court granted Pivonka’s trial counsel’s motion to withdraw and appointed

counsel for him in this appeal. Because Pivonka is entitled to the presumption of

indigence in light of the lack of evidence indicating a material change in his financial

situation, we conclude that the portion of the judgment ordering Pivonka to pay

attorney fees is improper. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); see also Mayer,

2011 WL 653095, at *2.

        A convicted defendant’s indigency is not relevant, however, to the amount of

court costs assessed when those court costs do not include an obligation to pay court-

appointed attorney’s fees under article 26.05(g) of the Code of Criminal Procedure. See

Slaven v. State, No. 02-11-00297-CV, 2012 WL 5535603, at *4 (Tex. App.—Fort Worth

Nov. 15, 2012, no pet.) (mem. op., not designated for publication); Dissette v. State, No.

Pivonka v. State                                                                      Page 3
09-11-00672-CR, 2012 WL 1249014, at *1 (Tex. App.—Beaumont Apr. 11, 2012, no pet.)

(mem. op., not designated for publication). Here, the trial court separately assessed

court-appointed attorney fees in the amount of $5,812.50 and thus did not include them

in the $635.00 assessed as court costs. We therefore agree with the State that the court

costs are properly included in the judgment.

        Based on the foregoing, we sustain Pivonka’s sole issue in part and overrule it in

part. We modify the trial court’s judgment to delete the assessment of attorney fees in

the amount of $5,812.50. We affirm the judgment as modified.




                                                 REX D. DAVIS
                                                 Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed as modified
Opinion delivered and filed August 8, 2013
Do not publish
[CR25]




Pivonka v. State                                                                    Page 4
