                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-15-00062-CR



          BILLY JOE WALDROUP, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 124th District Court
                 Gregg County, Texas
               Trial Court No. 44403-B




      Before Morriss, C.J., Moseley and Burgess, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                     MEMORANDUM OPINION
           Billy Joe Waldroup was convicted of assault family violence by impeding breathing or

blood circulation, was sentenced to ten years’ imprisonment, and was ordered to pay $1,062.50 in

attorney fees for his court-appointed counsel.1 In his sole point of error on appeal, which the State

concedes, Waldroup challenges only the trial court’s assessment of attorney fees against him. We

sustain Waldroup’s point of error because the record (1) established that he was indigent and (2)

contained no evidence that he had the ability to pay attorney fees for court-appointed counsel.

Accordingly, we modify the trial court’s judgment by deleting the assessment of attorney fees

against Waldroup and affirm the trial court’s judgment, as modified.

           A claim of insufficient evidence to support court costs and court-appointed attorney fees is

reviewable on direct appeal. Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). Under

Article 26.05(g) of the Texas Code of Criminal Procedure, a trial court has the authority to order

the reimbursement of court-appointed attorney fees only 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, including any expenses and costs.” TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West

Supp. 2014). “‘[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’” of legal services provided. Armstrong v. State, 340 S.W.3d 759, 765–66 (Tex. Crim. App.

2011) (quoting Mayer, 309 S.W.3d at 556).




1
    See TEX. PENAL CODE ANN. § 22.01(b)(2)(B) (West Supp. 2014).

                                                        2
       The State concedes that Waldroup is indigent and that the record is devoid of any

determination or finding by the trial court that he had financial resources or was otherwise able to

pay the appointed attorney fees. See Wiley v. State, 410 S.W.3d 313, 317 (Tex. Crim. App. 2013).

Thus, the assessment of attorney fees was erroneous and should be removed. Cates v. State, 402

S.W.3d 250, 252 (Tex. Crim. App. 2013); see Mayer, 309 S.W.3d 552; Martin v. State, 405 S.W.3d

944, 946–47 (Tex. App.—Texarkana 2013, no pet.). Accordingly, we modify the trial court’s

judgment by deleting the $1,062.50 assessment for attorney fees from the judgment.

       We affirm the trial court’s judgment, as modified.



                                              Josh R. Morriss, III
                                              Chief Justice
Date Submitted:        August 24, 2015
Date Decided:          September 2, 2015

Do Not Publish




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