                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-13-00213-CR


                            RUSHEL CURTIS LAMAR, APPELLANT

                                                   V.

                              THE STATE OF TEXAS, APPELLEE

                               On Appeal from the 47th District Court
                                       Potter County, Texas
                   Trial Court No. 66002-A, Honorable Dan L. Schaap, Presiding

                                             May 7, 2014

                                 MEMORANDUM OPINION
                   Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Rushel Curtis Lamar, appellant, appeals his conviction for aggravated assault

with a deadly weapon.          Appellant was tried by a jury, found guilty, and assessed

punishment at six years in prison. He then appealed.

      Appellant’s appointed counsel filed a motion to withdraw, together with an

Anders1 brief, wherein he certified that, after diligently searching the record, he

concluded that the appeal was without merit. Along with his brief, appellate counsel

      1
          See Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct.1396,18 L.Ed.2d 493 (1967).
filed a copy of a letter sent to appellant informing him of counsel’s belief that there was

no reversible error and of appellant’s right to file a response pro se. By letter dated

March 13, 2014, this court notified appellant of his right to file his own brief or response

by April 11, 2014, if he wished to do so. To date, no response has been filed.

       In compliance with the principles enunciated in Anders, appellate counsel

discussed one potential area for appeal which was the admission of extraneous

offenses. However, counsel then proceeded to explain why the issue was without merit.

       In addition, we conducted our own review of the record to assess the accuracy of

appellate counsel’s conclusion and to uncover any arguable error pursuant to In re

Shulman, 252 S.W.3d 403 (Tex. Crim. App. 2008) and Stafford v. State, 813 S.W.2d

508 (Tex. Crim. App. 1991). In doing so, we noticed that the judgment assessed court

costs in the amount of $4,409 against appellant. The bill of costs indicates that the

$4,409 sum is comprised of attorney’s fees in the amount of $4,100. However, there is

no evidence of record indicating a change in appellant’s status as an indigent. Such is

required before an indigent defendant may be assessed attorney’s fees. TEX. CODE

CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2013-2014); Mayer v. State, 309 S.W.3d

552, 557 (Tex. Crim. App. 2010). Because no objection is required to challenge the

sufficiency of the evidence regarding a defendant’s ability to pay those fees, Mayer v.

State, 309 S.W.3d at 556, the proper remedy is to delete attorney’s fees from the bill of

costs and any ensuing order permitting withdrawals from appellant’s inmate account of

those costs. Cates v. State, 402 S.W.3d 250, 251-52 (Tex. Crim. App. 2013). Other

than that matter, we also uncovered no arguable issue.




                                             2
       Accordingly, the bill of costs is modified to delete the requirement that appellant

pay $4,100 in court-appointed attorney’s fees. The motion to withdraw is granted, and

the judgment is affirmed as modified.2



                                                                      Brian Quinn
                                                                      Chief Justice

Do not publish.




       2
           Appellant has the right to file a petition for discretionary review with the Court of Criminal
Appeals.

                                                        3
