                                  NO. 07-10-00337-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL E

                                      JULY 29, 2011


                             REY MARTINEZ, APPELLANT

                                             v.

                          THE STATE OF TEXAS, APPELLEE


             FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

            NO. 60,684-E; HONORABLE DOUGLAS WOODBURN, JUDGE


Before CAMPBELL and HANCOCK , JJ., and BOYD, S.J.1


                               MEMORANDUM OPINION

       A jury convicted appellant Rey Martinez of the offense of theft of property under

$1,500, third offense.2 Appellant then plead true to two prior state jail felony convictions

and the jury assessed punishment at ten years‟ confinement in prison and a fine of




       1
       John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
       2
          See Tex. Penal Code Ann. § 31.03(e)(4)(D) (West 2011) (providing theft of
property valued at less than $1,500 is a state jail felony if the defendant has two or more
prior final convictions of any grade of theft).
$10,000.3 Through two issues on appeal, appellant challenged the sufficiency of the

evidence supporting an elemental enhancement paragraph and the portion of the

judgment ordering his repayment of court-appointed attorney‟s fees. Finding appellant

voluntarily withdrew his sufficiency of the evidence issue and the judgment erroneously

requires appellant repay court-appointed attorney‟s fees, we will modify the judgment

and affirm it as modified.


                                         Analysis


       Because of the narrow issues on appeal, we will discuss only so much of the

factual background as necessary for our disposition.


First Issue: Sufficiency of Evidence of Prior Theft Convictions


       A person commits the offense of theft if he unlawfully appropriates property with

the intent to deprive the owner of property. Tex. Penal Code Ann. § 31.03(a) (West

2011). A person commits the offense of theft--third offense if the value of the property

stolen is less than $1,500 and the defendant has two or more prior final convictions for

any grade of theft. Tex. Penal Code Ann. § 31.03(e)(4)(D) (West 2011). Thus, proof of

the offense requires sufficient evidence that appellant unlawfully appropriated property

with intent to deprive the owner of the property; the value of the property stolen was less


       3
         On a showing at the trial of a state jail felony that the defendant has two prior
final convictions for state jail felonies, on conviction the defendant shall be punished for
a third-degree felony. Tex. Penal Code Ann. § 12.42(a)(1) (West 2011). The range of
punishment for a third-degree felony is imprisonment for 2 to 10 years in the Texas
Department of Criminal Justice, and a fine not exceeding $10,000 may also be
assessed. Tex. Penal Code Ann. § 12.34(a)(b) (West 2011).

                                             2
than $1,500; and appellant was previously convicted two or more times of any grade of

theft.   Lockett v. State, No. 01-03-0851-CR, 2004 Tex. App. Lexis 8782, at *4-*5

(Tex.App.--Houston [1st Dist.] Sept. 30, 2004, pet. refused) (mem. op., not designated

for publication).


         In his brief, appellant argued the State offered insufficient evidence of one of the

two required prior theft convictions because the reporter‟s record omitted the judgment.

According to the trial record, at the beginning of the State‟s case-in-chief two judgments

showing appellant‟s prior convictions for theft were admitted in evidence.              After

appellant filed his brief, a supplemental reporter‟s record containing the omitted

judgment was filed.      With leave of court, appellant then filed a supplemental brief.

Therein he stated his first issue was “made moot by the sworn supplement to the record

filed by the trial court reporter.” He presents no further argument of the issue and his

prayer asks only for reformation of the judgment. We conclude appellant has voluntarily

withdrawn his first issue.


Second Issue: Assessment of Court-Appointed Attorney‟s Fees


         In his second issue, appellant asserts the trial court abused its discretion by

ordering appellant to repay court-appointed attorney‟s fees. He asks us to reform the

judgment to delete the assessment of attorney‟s fees. According to the clerk‟s record,

trial counsel was appointed for appellant on the basis of indigence. A post-trial order

appointed appellate counsel for appellant, also on the ground of indigence.             The

judgment, among other things, orders appellant to pay court costs. As for the amount of

court costs, the judgment provides “see attached.” Immediately following the judgment

                                              3
in the clerk‟s record appears a bill of costs issued two days after imposition of sentence.

Among the items listed on the bill of costs is “Attorney Fees (Court Appointed) $4,500.”


       A trial court has authority to order reimbursement of the fees of court-appointed

counsel 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. Tex. Code Crim.

Proc. Ann. art. 26.05(g) (West Supp. 2010); Mayer v. State, 274 S.W.3d 898, 901

(Tex.App.--Amarillo 2008), aff'd, 309 S.W.3d 552 (Tex.Crim.App. 2010).            But “[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. 2010). “[T]he 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.” Mayer, 309 S.W.3d at 556. Accordingly, the record

must supply a factual basis supporting a determination the defendant is capable of

repaying the attorney's fees levied. Barrera v. State, 291 S.W.3d 515, 518 (Tex.App.--

Amarillo 2009, no pet.) (per curiam).


       Here, the record does not show the trial court reconsidered its determination of

indigency, the occurrence of a material change in appellant‟s financial circumstances, or

his ability to offset the cost of legal services provided. Tex. Code Crim. Proc. Ann. art.

26.04(p) and art. 26.05(g) (West Supp. 2010). We agree with appellant, and the State

concedes, there is no evidence appellant is able to repay the $4,500 attorney‟s fee

assessment. Appellant‟s second issue is sustained.

                                            4
                                     Conclusion


      We modify the judgment of the trial court as follows. At page 2, beneath the

heading “Furthermore, the following special findings or orders apply:” there is added,

“As used in this judgment, the term „court costs‟ does not include court-appointed

attorney‟s fees.” As so modified, we affirm the trial court‟s judgment. Tex. R. App. P.

43.2(b).




                                                     James T. Campbell
                                                          Justice
Do not publish.




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