                                                                                             ACCEPTED
                                                                                         06-14-00155-cr
                                                                              SIXTH COURT OF APPEALS
                                                                                   TEXARKANA, TEXAS
                                                                                  12/29/2014 3:35:40 PM
                                                                                        DEBBIE AUTREY
                                   RED RIVER COUNTY                                              CLERK

                                 District and County Attorney
                                        Val J. Varley
                                       400 N. Walnut Street            FILED IN
                                                                6th COURT OF APPEALS
                                   Clarksville, TX 75426-4012     TEXARKANA, TEXAS
                                (903)427-2009 Fax (903)427-5316 12/30/2014 3:45:00 PM
                                                                    DEBBIE AUTREY
                                                                       Clerk



December 29, 2014

Debbie Autrey, Clerk
Sixth Judicial District Court of Appeals
100 N. State Line Ave., Ste. 20
Texarkana, Texas 75501

      RE:    Cause No. 06-14-00155-CR; Billy Wayne Marcy v. The State of Texas;
             in the Sixth Judicial District Court of Appeals at Texarkana

Dear Ms. Autrey:

      The State of Texas (the State), by and through Val J. Varley, the elected
County and District Attorney of Red River County, moves this Court
to accept this letter brief in “another form in the interest of justice.” See Tex. R.
App. P. 9.4. The State prays for such relief.

      On December 3rd, the appellant, Billy Wayne Marcy, filed his brief that
questioned whether the trial court erred in assessing attorney’s fees against him.
The State will confess error and concede this point. See Gonzalez v. State, 973
S.W.2d 427, 431 (Tex. App.--Austin 1998) (the judgment inaccurately reflected a
prior conviction for burglary of a habitation; The State confesses error and
concedes this point), aff’d, 8 S.W.3d 640 (Tex. Crim. App. 2000).

      A claim of insufficient evidence to support court-appointed attorney fees is
reviewable on direct appeal. See Robert Shane Kinslow v. The State of Texas, No.
06-14-00083-CR, 2014 Tex. App. LEXIS 13619, at * 3 (Tex. App.--Texarkana
December 19, 2014, n.p.h.) (mem. op., not designated for publication) (citing
Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)). In Kinslow, an
appeal from Red River County, this Court held that “[c]ourt-appointed attorney
fees cannot be assessed against an indigent person unless there is proof and a
finding that he or she is no longer indigent.” See Kinslow, 2014 Tex. App. LEXIS
13619, at * 4 (citing Cates v. State, 402 S.W.3d 250, 251-52 (Tex. Crim. App.
2013); Mayer, 309 S.W.3d at 556-57)).

       In the present case, it is undisputed that, before trial, the court determined
that Marcy was indigent and appointed trial counsel to represent him. The court
also appointed counsel to represent him on appeal. Nothing in this appellate record
provided sufficient proof to support a finding, either express or implied, that Marcy
was no longer indigent. Here, as in Kinslow, the assessment of attorney’s fees was
erroneous; and therefore, the State will concede error. See id (citing Cates, 402
S.W.3d at 252; Mayer, 309 S.W.3d at 552, Martin v. State, 405 S.W.3d 944, 946-47
(Tex. App.--Texarkana 2013, no pet.)). This Court should modify the trial court’s
judgment in CR01988 by deleting the attorney-fees component of the assessment
and should affirm, as modified. See Tex. R. App. P. 43.2(b); Gonzalez, 973 S.W.2d
at 431. The State prays for such relief along with any other relief, both at law and
in equity, to which it may be justly and legally entitled.

       Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, this
letter brief was a computer-generated document and contained 528 words--not
including the Appendix (not applicable here). The undersigned attorney certified
that he relied on the word count of the computer program, which was used to
prepare this document.

                                             Sincerely,
                                             /s/Val Varley

                                             Val J. Varley
