                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-14-00254-CR


JAMES ALVIN GREENE                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY
                    TRIAL COURT NO. 2013-0021M-CR

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                         MEMORANDUM OPINION 1

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      In two points, James Alvin Greene contends that the trial court erred by

requiring him to pay $2,564 in court costs in its judgment adjudicating him guilty

of sexual assault. We modify the judgment to reduce the court costs to $564 and

affirm it as modified.




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       See Tex. R. App. P. 47.4.
      The State filed a petition to adjudicate appellant guilty of sexual assault, for

which he was on deferred adjudication community supervision. The trial court

found two of the allegations in the petition to adjudicate to be true.                After

receiving a presentencing report, the trial court assessed appellant’s punishment

at ten years’ confinement. The trial court did not orally assess a fine.              The

judgment included the imposition of “court costs” in the amount of $2,564. The

bill of costs prepared by the District Clerk’s office shows that $2,000 of the court

costs is attributable to a “fine” and that $450 is attributable to attorney’s fees.

      In his first point, appellant contends that the court costs improperly

included a $2,000 fine assessed in the original order placing him on deferred

adjudication community supervision because the trial judge did not orally

pronounce the fine as part of appellant’s sentence upon adjudicating him guilty.

The State concedes that the $2,000 cannot properly be assessed as court costs.

See Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004). Therefore, we

sustain appellant’s first point.

      In his second point, appellant challenges $450 of the remaining $564 in

court costs because he contends that the evidence is insufficient to show that he

has the ability to pay $450 in attorney’s fees. The original order placing appellant

on deferred adjudication, which was the result of a plea bargain, included $450 in

attorney’s fees. Because appellant did not challenge this part of the court costs

in a direct appeal from the order deferring adjudication, he has forfeited this

complaint. Wiley v. State, 410 S.W.3d 313, 320–21 (Tex. Crim. App. 2013); see


                                           2
also Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011) (explaining

that attorney’s fees may be included in court costs and, being nonpunitive, are

not required to be orally pronounced to be effective). We overrule appellant’s

second point.

                                  Conclusion

      Having sustained appellant’s first point and overruled his second point, we

modify the trial court’s judgment to reduce the court costs to $564 and affirm the

judgment as modified.


                                                  /s/ Terrie Livingston

                                                  TERRIE LIVINGSTON
                                                  CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 26, 2015




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