Affirmed as Modified; Opinion Filed November 7, 2013.




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-12-01319-CR

                        CHRISTOPHER JOHN CORTEZ, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                      On Appeal from the 366th Judicial District Court
                                   Collin County, Texas
                          Trial Court Cause No. 366-80365-2012

                             MEMORANDUM OPINION
                         Before Justices O'Neill, Lang-Miers, and Evans
                                    Opinion by Justice Evans
       Christopher John Cortez pleaded guilty to burglary of a habitation without the benefit of a

plea-bargain agreement. Following a hearing on punishment, the trial court sentenced appellant

to twenty years’ imprisonment. In his sole point of error, appellant contends there is insufficient

evidence to support the trial court’s assessment of court-appointed attorney’s fees against him.

After reviewing the record, we agree. We therefore modify the trial court’s judgment to delete

the provision requiring appellant to reimburse the County the cost of his court-appointed counsel.

We affirm the judgment as modified.

                                 FACTUAL BACKGROUND

       Appellant was charged with burglary of a habitation. The trial court found appellant

indigent and appointed counsel for him on November 3, 2011. Appellant entered an open plea
of guilty and the trial court assessed punishment at twenty years’ imprisonment. Among other

things, the trial court’s written judgment provided:

       It is further ORDERED that the cost to Collin County for the payment of this
       defendant’s court-appointed attorney, if any, is taxed against this defendant as
       court cost. The District Clerk is granted leave to amend the court cost to reflect
       this amount without the necessity of a further order.

       A certified bill of costs in the clerk’s record indicates that appellant has been assessed

$1,175 for his attorney’s fees as a court cost. Appellant filed a pro se notice of appeal on

September 21, 2012 stating he was indigent and had previously filed with the court an affidavit

of indigency. On October 4, 2012, after a hearing, the trial court appointed new counsel to

represent appellant for purposes of appeal.

                                           ANALYSIS

       In his sole point of error, appellant argues that the trial court erred when it assessed

attorney’s fees in the amount of $1,175 as part of appellant’s court costs because the evidence is

insufficient to support the assessment. The State concedes that the trial court erred in taxing

court-appointed attorney’s fees as court costs in this case and agrees the judgment should be

modified as requested by appellant.

       The code of criminal procedure provides the trial court with discretionary authority to

order reimbursement of appointed attorney’s fees when the defendant has financial resources to

repay all or part of the cost of the legal services provided. See Tex. Code Crim. Proc. Ann. art.

26.05(g) (West Supp. 2012). But where the trial court has previously found the defendant

indigent, a reimbursement order must be supported by sufficient evidence in the record to show a

material change in the defendant’s financial status such that he is able to pay his appointed

attorney’s fees. See Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). Here, the

trial court determined that appellant was indigent when it initially appointed him counsel, and

again when it appointed him counsel to represent him in this appeal. There is no evidence in the

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record before us that appellant’s financial circumstances had materially changed so as to support

the trial court’s assessment of attorney’s fees as court costs. Accordingly, we sustain appellant’s

sole issue and modify the judgment to strike the following language: “It is further ORDERED

that the cost to Collin County for the payment of this defendant’s court-appointed attorney, if

any, is taxed against this defendant as a court cost. The District Clerk is granted leave to amend

the court cost to reflect this amount without the necessity of a further order.” See id. at 557.

       As modified, the judgment is affirmed.




                                                      /David Evans/
                                                      DAVID EVANS
                                                      JUSTICE



Do Not Publish
TEX. R. APP. P. 47
121319F.U05




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                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                        JUDGMENT

CHRISTOPHER JOHN CORTEZ,                             On Appeal from the 366th Judicial District
Appellant                                            Court, Collin County, Texas
                                                     Trial Court Cause No. 366-80365-2012
No. 05-12-01319-CR         V.                        Opinion delivered by Justice Evans,
                                                     Justices O'Neill and Lang-Miers
THE STATE OF TEXAS, Appellee                         participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
to STRIKE the following language:

       It is further ORDERED that the cost to Collin County for the payment of this
       defendant's court-appointed attorney, if any, is taxed against this defendant as
       court cost. The District Clerk is granted leave to amend the court cost to reflect
       this amount without the necessity of a further order.

As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 7th day of November, 2013.




                                                     /David Evans/
                                                     DAVID EVANS
                                                     JUSTICE




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