                                 NUMBER 13-12-00065-CR

                                 COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

NEALY NICOLE GIPSON,                                                                     Appellant,

                                                   v.

THE STATE OF TEXAS,                                                                      Appellee.


                      On appeal from the 252nd District Court
                           of Jefferson County, Texas.


                             MEMORANDUM OPINION1
              Before Justices Rodriguez, Benavides, and Perkes
                  Memorandum Opinion by Justice Perkes
        Appellant Nealy Nicole Gipson appeals her conviction for driving while intoxicated

with a child passenger, a state-jail felony. See TEX. PENAL CODE ANN. § 49.045 (a)–(b)

(West 2011). By one issue, appellant challenges the trial court’s judgment that she pay


        1
           This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
attorney’s fees despite her indigency. We affirm as modified.

                                         I. BACKGROUND2

        Appellant was indicted for the felony offense of driving while intoxicated with a

child passenger.        After appellant entered a plea agreement, the trial court found

appellant guilty and sentenced her to a term of two years’ confinement in state jail. The

trial court suspended the imposition of confinement and placed appellant on community

supervision for a term of five years. The trial court ordered appellant, as an express

condition of her community supervision, to pay “the amounts shown in this order in the

manner set out in this order.” Included in the listed amounts were a $500.00 fine and

$1,000.00 in attorney’s fees. The trial court later reduced the attorney’s fees to $500.00.

        The trial court revoked appellant's community supervision after she pleaded true to

allegations that she committed a new offense of driving while intoxicated in violation of

her community supervision terms.                The trial court sentenced her to two years'

confinement in the state jail and ordered her to pay $689.00 in court costs and $1,922.00

in administrative fees. The trial court’s balance sheet showed that appellant’s total

outstanding balance was $2,611.00, and it included $500.00 in attorney’s fees. This

appeal followed.

                                      II. ATTORNEY’S FEES

        By a single issue on appeal, appellant argues that the trial court erred in assessing

attorney’s fees against her because appellant had been previously determined to be


        2
           Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.

                                                     2
indigent by the trial court.3 The court costs and administrative fees assessed against

appellant are itemized in the trial court’s Revocation Restitution/Reparation Balance

Sheet, which was attached to the Judgment Revoking Community Supervision, as

follows:

ADMINISTRATIVE FINANCIAL OBLIGATIONS:

A.      SUPERVISION FEES                         Amount Owed:            $     322.00
B.      ASSESSMENT                               Amount Owed:            $      50.00
C.      MS CS FEE                                Amount Owed:            $      20.00
D.      PSI FEE                                  Amount Owed:            $     500.00
E.      FINE                                     Amount Owed:            $     500.00
F.      COURT COST                               Amount Owed:            $     305.00
G.      ATTORNEY[‘S] FEE[S]                      Amount Owed:            $     500.00
H.      TRANS FEE                                Amount Owed:            $       0.00
I.      CREDIT CARD FEE                          Amount Owed:            $       0.00
J.      REVOCATION COURT COSTS                   Amount Owed:            $     384.00

                                             Grand Total Balance: $ 2,611.00

        Appellant contends that the $500.00 attorney’s fees were newly imposed by the

trial court at the revocation hearing and, given that appellant was indigent, improper.

        The record does not indicate whether the attorney’s fees originated from the

revocation hearing or from previous proceedings. The record, however, does confirm

that the trial court had previously determined appellant to be indigent, and there is no

evidence in the record suggesting that her circumstances had changed by the time of her

revocation hearing.         The State does not dispute that appellant was indigent and

remained indigent throughout the proceedings in this case.                       And it is true that a

defendant determined to be indigent cannot be charged for legal services provided to

        3
            The State concedes that appellant was indigent and that the trial court should not have taxed
attorney’s fees against her. While the State's confession of error in a criminal case is an important factor,
it is not conclusive, and the appellate court must make an independent examination of the merits of any
issue raised on appeal. Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002).
                                                     3
him. See Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010) (concluding that a

"defendant's financial resources and ability to pay are explicit critical elements in the trial

court's determination of the propriety of ordering reimbursement of costs and fees."); see

also TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2011) ("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, including any expenses and costs, the

court shall order the defendant to pay during the pendency of the charges or, if convicted,

as court costs the amount that it finds the defendant is able to pay."); id. art. 26.04(p)

(West Supp. 2011) ("A defendant who is determined by the court to be indigent is

presumed to remain indigent for the remainder of the proceedings in the case unless a

material change in the defendant's financial circumstances occurs."). Therefore, as the

State concedes, the trial court erred in assessing $500.00 in attorney's fees against

appellant.4 We sustain appellant’s issue as to the trial court's assessment of attorney's

fees.



        4
            This is not to suggest that a court cannot condition community supervision on payment of
attorney’s fees. On the contrary, the Texas Code of Criminal Procedure expressly allows such conditions.
See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 11(a)(11) (West 2006). But, “agreeing to pay attorney’s
fees as a condition of community supervision and having the actual ability to pay those fees are two entirely
different concepts.” Wolfe v. State, No. 07-10-0201-CR, 2012 Tex. App. LEXIS 5368, at *11 (Tex.
App.—Amarillo Jul. 6, 2012, no pet. h.), reh’g denied, No. 07-10-0201-CR, 2012 Tex. App. LEXIS 5483, at
*1 (Tex. App.—Amarillo Jul. 10, 2012) (en banc). The trial court officially revoked appellant’s community
supervision. At issue is whether the trial court could then enforce attorney’s fees as part of its Judgment
Revoking Community Supervision. Given that “[a] defendant who is determined by the court to be indigent
is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in
the defendant's financial circumstances occurs,” TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp.
2011), the trial court could not impose attorney’s fees against appellant as part of the judgment absent
some evidence that her circumstances had changed since the indigency determination. Under Mayer,
because no such evidence appears in the record, appellant’s indigent status is presumed to have
continued, and she could not thus be ordered to pay attorney’s fees. See Mayer, 309 S.W.3d at 556; see
also Derby v. State, No. 09-11-00256-CR, 2011 Tex. App. LEXIS 9810, at *7 (Tex. App.—Beaumont Oct.
17, 2011, no pet.) (mem. op., not designated for publication).
                                                     4
                                 III. CONCLUSION

      Because the trial court's judgment was impermissible under the law and facts in

this case, we delete that portion of the judgment assessing $500.00 in attorney's fees

against appellant. We affirm the judgment as modified.



                                                GREGORY T. PERKES
                                                Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the
23rd day of August, 2012.




                                           5
