                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-12-00015-CR

VINCENT HARRIS,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 19th District Court
                            McLennan County, Texas
                           Trial Court No. 2007-862-C1


                      MEMORANDUM OPINION


      In one issue, appellant, Vincent Harris, argues that the evidence is insufficient to

support the portion of the trial court’s judgment ordering him to pay his court-

appointed attorney’s fees because he was determined to be indigent. We modify the

trial court’s judgment to reduce the court-costs finding by $400—the amount of Harris’s

court-appointed attorney’s fees—and affirm the judgment as modified.
                                    I.     BACKGROUND

        Pursuant to a plea-bargain agreement, Harris pleaded guilty to the offense of

delivery of less than one gram of cocaine in a drug-free zone, a third-degree felony. See

TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(b), 481.134(b)(1) (West 2010 & Supp. 2011).

In accordance with the plea-bargain agreement, the trial court sentenced Harris to four

years’ confinement in the Institutional Division of the Texas Department of Criminal

Justice with a $750 fine, suspended the sentence, and placed Harris on community

supervision for six years.

        Because Harris failed to comply with all of the terms and conditions of his

community supervision, several modifications were made. Despite the modifications,

Harris continued to violate the terms and conditions of his community supervision,

which prompted the State to file a motion to revoke Harris’s community supervision on

December 5, 2011. In its motion to revoke, the State alleged that Harris had violated his

community supervision twenty-three times, including, among other things, the alleged

commission of the offenses of evading arrest, resisting arrest, theft, criminal trespass,

criminal mischief, interference with an emergency call, and burglary of a habitation. At

the hearing on the State’s motion to revoke, Harris pleaded “true” to the first eight

allegations contained in the State’s motion to revoke and “not true” to the remaining

allegations. Harris testified at the hearing on the State’s motion to revoke. At the

conclusion of the evidence, the trial court found the first eight allegations in the State’s

motion to revoke to be true, revoked Harris’s community supervision, and imposed the

original four-year prison sentence. This appeal followed.

Harris v. State                                                                       Page 2
                              II.     COURT-APPOINTED ATTORNEY’S FEES

        In his sole issue on appeal, Harris complains that there is not sufficient evidence

to support the trial court’s judgment requiring him to pay his court-appointed

attorney’s fees because he was determined to be indigent in the trial court and on

appeal and because the record does not indicate that his financial situation had

changed.1 The State concedes that there is not sufficient evidence in the record to

support the trial court’s award of court-appointed attorney’s fees.

A.      Applicable Law

        “Sufficiency of the evidence is measured by viewing all of the record evidence in

the light most favorable to the verdict.” Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim.

App. 2010); see Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed.

2d 560 (1979); see also Lucio v. State, 351 S.W.3d 878, 894-95 (Tex. Crim. App. 2011).

        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. 2011); see also Mayer v. State, No. 10-10-00302-CR, 2011 Tex. App. LEXIS

1369, at *6 (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

        1 Harris’s appellate counsel also mentions that his client stated in open court that he wished to
appeal the revocation of his community supervision “because he does not feel revocation is justified if he
‘beats’ the subsequent criminal charges that serve as the grounds for allegations ten through sixteen in
the motion to revoke.” Harris’s counsel, however, concluded that such an appeal would be frivolous
because Harris pleaded “true” to the first eight allegations contained in the State’s motion to revoke, and
because case law states that proof of a single violation will support a judgment revoking community
supervision. See Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2011); see also Diaz v. State, No. 10-11-
00269-CR, 2012 Tex. App. LEXIS 2029, at **2-3 (Tex. App.—Waco Mar. 14, 2012, no pet.) (mem. op., not
designated for publication). Based on the record before us, we agree with Harris’s appellate counsel.

Harris v. State                                                                                        Page 3
determination that Harris 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. 2011);

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 Tex. App. LEXIS 8302, at *3 (Tex. App.—

Waco Oct. 19, 2011, no pet.) (mem. op., not designated for publication); Willis v. State,

No. 10-09-00420-CR, 2010 Tex. App. LEXIS 8255, at *2 (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."). In

instances where 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 v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); see also

Cain v. State, No. 10-11-00045-CR, 2011 Tex. App. LEXIS 8159, at *11 (Tex. App.—Waco

Oct. 12, 2011, no pet.) (mem. op., not designated for publication) (modifying the

judgment to delete the finding ordering appellant to pay his court-appointed attorney's

and investigator's fees).

B.      Discussion

        Here, Harris filed a financial affidavit indicating that he had no money or other

assets, including a car or a house. The trial court concluded that Harris was indigent

and appointed him trial counsel.        In its judgment revoking Harris’s community

supervision, the trial court assessed $817 in court costs, which included $400 in court-

appointed attorney’s fees.    The trial court subsequently found Harris indigent for

Harris v. State                                                                       Page 4
purposes of appeal and appointed him counsel for this appeal. The State did not

present any evidence at the revocation hearing regarding Harris’s financial

circumstances. Because Harris is entitled to the presumption of indigence in light of the

dearth of evidence indicating a material change in his financial situation, we conclude

that the portion of the judgment ordering Harris to pay his court-appointed attorney’s

fees is improper. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); see also Mayer, 2011 Tex.

App. LEXIS 1369, at *6. We therefore sustain Harris’s sole issue on appeal and modify

the judgment to delete the finding that orders Harris to pay his court-appointed

attorney’s fees. See Mayer, 309 S.W.3d at 557; see also Cain, 2011 Tex. App. LEXIS 8159, at

*11. The effect of our decision will be to subtract $400 from the $817 in total court costs

assessed against Harris, leaving $417 in court costs to remain.

                                    III.   CONCLUSION

        Based on the foregoing, we modify the trial court’s judgment to reduce the court-

costs finding by $400—the amount of Harris’s court-appointed attorney’s fees—and

affirm the judgment as modified.




                                                 AL SCOGGINS
                                                 Justice




Harris v. State                                                                      Page 5
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed as modified
Opinion delivered and filed May 23, 2012
Do not publish
[CR25]




Harris v. State                            Page 6
