                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-09-00358-CR

CLINTON STEVENSON,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                           From the 52nd District Court
                              Coryell County, Texas
                           Trial Court No. Fam-08-19632


                           MEMORANDUM OPINION


       The trial court found Clinton Stevenson guilty of assault on a public servant,

enhanced to a second-degree felony, and assessed his punishment, enhanced by a prior

felony conviction, at eight years’ imprisonment. The trial court also ordered Stevenson

to pay court costs and attorney’s fees.

       In pronouncing the sentence, the following was said:

              THE COURT: . . . Court having previously found the defendant
       guilty assesses punishment having found that the evidence substantiates
       this case and having found you guilty of the offense in this cause number,
       cause -- court assesses punishment, confinement in the Texas Department
        of Criminal Justice-Institutional Division for a period of eight years, will
        assess no fine, only court costs and attorney’s fees will be reflected on the
        judgment. And at this time, Mr. Stevenson, do you have any legal reason
        why you should not be sentenced at this time?

                 THE DEFENDANT: No, sir.

               THE COURT: Having stated no legal reason, I sentence you to
        eight years in the Texas Department of Criminal Justice-Institutional
        Division. As stated previously, will assess no fine, only court costs and
        attorney fees. And the attorney’s fees, [Stevenson’s trial counsel], if you’ll
        get that to the Court, then that will be reflected on the judgment.

In the written judgment, the trial court ordered Stevenson to pay “RESTITUTION IN

THE AMOUNT OF $2,500.00 TO REFLECT COURT APPOINTED ATTORNEY FEES.”

        In his first issue, Stevenson contends that the trial court’s written judgment

ordering payment of restitution does not reflect the oral pronouncement of judgment

and should be reformed to remove the order that restitution be paid. In his second

issue, Stevenson argues that the record does not support the trial court’s implicit

determination that he was able to pay his court costs and therefore the order to pay

attorney’s fees should be reformed to remove the findings and order to pay attorney’s

fees from the judgment. The State concedes that there is error in the judgment.

        For the purposes of assessing attorney’s fees, once an accused is found to be

indigent, he is presumed to remain so through the proceedings absent proof of a

material change in his circumstances. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West

Supp. 2010); see also Mayer v. State, No. 10-10-00302-CR, 2011 WL 653095, at *2 (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 determination


Stevenson v. State                                                                       Page 2
that Stevenson 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. 2010); Barrera v.

State, 291 S.W.3d 515, 518 (Tex. App.—Amarillo 2009, no pet.); see also Morris v. State,

No. 10-10-00158-CR, 2010 WL 4983491, at *2 (Tex. App.—Waco Dec. 8, 2010, no pet.)

(mem. op., not designated for publication).

        In this case, Stevenson was found to be indigent prior to trial and was appointed

trial counsel.       No evidence indicating a change in his financial circumstances was

proffered during the trial. Additionally, the trial court determined that Stevenson was

indigent for purposes of appeal and ordered the appointment of appellate counsel.

Accordingly, as the presumption of indigence remains, we hold that the evidence is

insufficient to support the trial court’s assessment of attorney’s fees. See TEX. CODE

CRIM. PROC. ANN. art. 26.04(p); see also Mayer, 2011 WL 653095, at *2. We consequently

sustain Stevenson’s second issue and modify the trial court’s judgment to delete the

order to pay attorney’s fees. See TEX. R. APP. P. 43.2(b). Having sustained Stevenson’s

second issue, we need not address his first issue.

        We affirm the trial court’s judgment as modified.




                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed as modified
Opinion delivered and filed October 19, 2011

Stevenson v. State                                                                  Page 3
Do not publish
[CR25]




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