

Opinion filed June 14,
2012
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-10-00187-CR
                                                    __________
 
                                     RUSSELL
CATES, Appellant
 
                                                             V.
 
                                      STATE
OF TEXAS, Appellee

 
                                   On
Appeal from the 19th District Court
 
                                                        McLennan
County, Texas
 
                                               Trial
Court Cause No. 2008-1575-C1
 

                                            M
E M O R A N D U M   O P I N I O N
Russell
Cates appeals his conviction by a jury for the offense of unauthorized use of a
motor vehicle.  The jury assessed his punishment at twenty-four months in a
state jail facility and a $5,000 fine.  He asserts in two issues that the trial
court erred by charging the jury not to consider sympathy when
considering his punishment and by ordering him to pay court-appointed
attorney’s fees as part of court costs.  We modify the judgment so as to limit
Cates’s obligation to pay for his court­­-appointed attorney’s fees to those
payments from his inmate trust fund as set forth in the trial court’s
communication with the Inmate Trust Fund of the Texas Department of Criminal
Justice, and we affirm the judgment as modified.
Cates
urges in Issue One that the trial court erred by charging the jury not to
consider sympathy when assessing his punishment.  In the charge to the jury at
punishment, the trial court instructed the jury, “Do not let personal bias,
prejudice, sympathy, or resentment on your part, or any such personal emotion
on your part, enter into your deliberations or affect your verdict in this
case.”  Such a charge was not erroneous.  Wilson v. State, 267 S.W.3d
215, 220 (Tex. App.—Waco 2008, pet. ref’d).  This court has previously followed
this case in our memorandum opinion in Heslep v. State,
No. 11-09-00226-CR, 2011 WL 2175873 (Tex. App.—Eastland June 2, 2011, no
pet.) (mem. op., not designated for publication).  We overrule Issue One.
                        Cates asserts in Issue Two that the
trial court erred in ordering him to pay court-appointed attorney’s fees as
part of court costs.  Although there was no objection made at trial to the
trial court’s assessment of the attorney’s fees as court costs, Cates contends
that he may complain of the insufficiency of the evidence to support the trial
court’s finding without a trial court objection.  An appellant need make no
objection at trial to preserve his complaint that the trial court erred in
ordering him to pay the costs of appointed counsel on the basis of his
indigence because such a complaint presents the issue of the sufficiency of the
evidence to support the trial court’s order.  Mayer v. State, 309 S.W.3d
552, 556 (Tex. Crim. App. 2010).  We therefore consider Cates’s contention that
the evidence is insufficient to support the trial court’s order that he pay the
costs of appointed counsel as costs of court.
            On
April 6, 2010, prior to trial, Cates requested a court-appointed attorney.  Although
Cates did not fill out any of the financial information of the form, the trial
court’s signature appears below a finding that Cates is indigent.  The judge’s
signature bears the date of April 7, 2010.  However, the record reflects a
Finding on Financial Affidavit and Order Appointing Counsel, also signed by the
judge on April 7, 2010, in which the trial court found that the defendant was
indigent or that justice otherwise required appointment of counsel.  Following
trial, on June 9, 2010, Cates signed a Financial Affidavit for Court
Appointment of Attorney, which showed that he was unemployed and had no
income.  The trial court found Cates indigent and appointed the attorney who
represents Cates in this appeal.  The court’s judgment, signed the same day,
assessed all court-appointed attorney’s fees and certain other fees as costs
and ordered Cates to pay them.  The court, also on June 9, 2010, signed an
instrument directed to the Inmate Trust Account of the Texas Department of
Criminal Justice in which the trial court made a finding that Cates was unable
to pay the costs “on this date” and that the funds should therefore be
withdrawn from his inmate trust account.  The instrument provided that the
amount to be withdrawn would be 20% of the first month’s deposit, or the total
amount due, whichever is less, and 10% of any subsequent month’s deposit, or
the total amount due, whichever is less.  Payments would continue until the
amount of costs are paid or until Cates is released from confinement.
            Article
26.05(g) of the Texas Code of Criminal Procedure provides that, 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 the
expenses and costs, the court shall order the defendant to pay, if convicted,
as court costs the amount that it finds the defendant is able to pay.  Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2011).
            We
construe the trial court’s order to be that, while the defendant might lack
other resources to reimburse the cost of his court-appointed attorney, he could
at least make reimbursement from a small percentage of any funds he might have
in his inmate trust account while incarcerated.  The evidence supports the
trial court’s order because it is undisputed that Cates will be incarcerated
for a period of time and that, if there were any funds in his inmate trust
account, a small portion of the account would be available to reimburse all or
a portion of the expenses of his court-appointed counsel.  
            Cates
urges that, because the trial court found him indigent and appointed counsel to
represent him, there is a presumption that he remains indigent.  He insists
that, for a judge to order a defendant previously determined to be indigent to
repay court-appointed fees as court costs, the judge is statutorily required to
determine that the defendant has financial resources that enable him to repay
the fees.  He urges that there is no factual basis in the record to support the
trial court’s determination that he can pay the fees.  We find that the record
supports the trial court’s determination that Cates can pay at least a portion
of the fees from a small percentage of any funds that might be available to him
through his inmate trust account while he is incarcerated.  We interpret the
order to limit Cates’s liability for the fees to the payment through his inmate
trust fund.  We agree with Cates that there is insufficient evidence to support
an order that he pay the fees except for the payments from his inmate trust
fund.  To the extent that the trial court’s judgment might order Cates to pay
the full amount of the fees if any is remaining due after Cates is released, we
modify the judgment to limit his liability for the fees to the payments made
through his inmate trust fund while he is incarcerated, as set forth in the
trial court’s communication to the Inmate Trust Fund of the Texas Department of
Criminal Justice.
            Cates
relies upon the opinions of Mayer, 309 S.W.3d 552, and Barrera v. State,
291 S.W.3d 515, 518 (Tex. App.—Amarillo 2009, no pet.). We find those cases to
be distinguishable because in each case the trial court ordered the defendant
to pay the full amount of the attorney’s fees without there being a showing of
ability to pay the fees.  Mayer, 309 S.W.3d at 553; Barrera, 291
S.W.3d at 518.  In Barrera, the court reformed that portion of the
judgment ordering the defendant to pay the full amount of the fees where there
was no evidence that he could do so.  Barrera, 291 S.W.3d at 518.  We
have modified the judgment in this case to limit Cates’s payments to those
outlined in the trial court’s communication with the Inmate Trust Fund of the
Texas Department of Criminal Justice because there was no evidence to support
his ability to pay the fees in full, except through such payments.  In neither Mayer
nor Barrera did the trial court make provisions for the fees to be
paid limited to a small percentage of the deposits made to the defendant’s
inmate trust fund during the time he was to be incarcerated as a result of the
conviction.  We sustain Issue Two in part and overrule Issue Two in part.
            The
judgment is modified so as to limit Cates’s liability for payment toward the
attorney’s fees assessed as costs to those payments made from Cates’s inmate
trust fund in accordance with the trial court’s communication to the Inmate
Trust Fund of the Texas Department of Criminal Justice, and the judgment is
affirmed as modified.
 
                                                                                    PER
CURIAM
                                                                                                
June 14, 2012
Do not publish. 
See Tex. R. App. P.
47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill.[1]




                [1]John
G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort
Worth, sitting by assignment.


