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

              No. 06-11-00022-CR
        ______________________________


        GLEN MORRIS BROWN, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 114th Judicial District Court
                Smith County, Texas
           Trial Court No. 114-1287-10




     Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Justice Moseley
                                        MEMORANDUM OPINION

         Glen Morris Brown1 entered an open plea of guilty to the state-jail offense of manufacture

or delivery of less than one gram of cocaine, a controlled substance. 2 After accepting the guilty

plea and finding Brown guilty, the trial court sentenced him to serve two years’ incarceration and

to pay a reimbursement fee of $140.00 to the Texas Department of Public Safety (DPS).                        Finding

that there was no evidence in the record to support findings which were requisite to the trial court’s

assessment of the reimbursement fee, we modify the judgment to strike the provision for

reimbursement and affirm the judgment and sentence, as modified.

         At Brown’s sentencing hearing, the trial court orally announced a sentence of two years’

confinement and ordered “reimbursement . . . paid to the Department of Public Safety in the

amount of $140.[00].” The judgment reiterates that the $140.00 is for a “reimbursement” fee of

$140.00 due to the DPS. On appeal, both Brown and the State treat the trial court’s order of

“reimbursement” as an order for restitution. We point out that reimbursement and restitution are

not identical terms. “Restitution” is provided for in Article 42.037 of the Texas Code of Criminal


1
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2005). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
2
 In the same proceeding, Brown pled guilty to another state-jail felony charge of manufacture or delivery of a
controlled substance, cocaine, less than one gram (our cause number 06-11-00024-CR); and a first-degree felony
charge of possession of a controlled substance, cocaine, with an intent to deliver, in an amount of four grams or more,
but less than 200 grams (our cause number 06-11-00023-CR). See generally TEX. HEALTH & SAFETY CODE ANN.
§481.112 (West 2010). Brown has filed a single brief raising the same issue in all three cases; we reach the same
result in those other two cases, released today in separate opinions bearing those cause numbers.

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Procedure as being something that is available to be ordered paid to “any victim of the offense or to

the compensation to victims of crime fund.” See TEX. CODE CRIM. PROC. ANN. art. 42.037 (West

Supp. 2010). In contrast, “reimbursement” is authorized in Article 42.12, Section 11(19) of the

Texas Code of Criminal Procedure as something to be paid to “[r]eimburse a law enforcement

agency for the analysis, storage, or disposal of . . . controlled substances . . . seized in connection

with the offense” as a condition of community supervision. See TEX. CODE CRIM. PROC. ANN. art.

42.12, § 11(19) (West Supp. 2010).3

         While conceding that there is no evidence in the record of the $140.00 charge which Brown

was ordered to reimburse the DPS, the State argues that because Brown lodged no objection at

sentencing to the trial court’s assessment of the fee, he cannot now complain of the assessment on

appeal. See TEX. R. APP. P. 33.1.

         A party need not object to preserve a claim of evidentiary sufficiency for appellate review.

Mayer v. State, 309 S.W.3d 552, 555–56 (Tex. Crim. App. 2010).4 In Mayer, the Texas Court of

Criminal Appeals found that Mayer did not waive his right to contest the trial court’s order to pay

court-appointed attorney’s fees as reimbursement, despite his failure to object to the order before




3
 See also Aguilar v. State, 279 S.W.3d 350, 353 n.1 (Tex. App.––Austin 2007, no pet.) (examining distinction between
“restitution or reparation” and “reimbursement”).
4
 See also Idowu v. State, 73 S.W.3d 918, 922 (Tex. Crim. App. 2002) (“Whether the record provides a sufficient
factual basis for a particular restitution order could be considered an evidentiary sufficiency question that need not be
preserved by objection at the trial level.” However, a complaint about the propriety of the restitution order, as
opposed to the factual basis of that order, must be made in the trial court. Id. at 921.

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the trial court. We will, therefore, address Brown’s complaint that there is no evidence to support

the trial court’s order to reimburse the DPS.

           Texas courts have held that although a trial court can order a defendant to pay laboratory

fees as a condition of community supervision5 or pursuant to a plea agreement, since the expenses

incurred during such testing are not sustained as a result of the ordered payee being the victim of a

crime, it cannot order payment of laboratory fees as restitution. Aguilar, 279 S.W.3d at 353;

Uresti v. State, 98 S.W.3d 321, 338 (Tex. App.––Houston [1st Dist.] 2003, no pet.). Despite the

parties’ conflation of the terms “restitution” and “reimbursement,” the trial court’s judgment

clearly orders Brown to pay reimbursement to the DPS for laboratory fees, which is a clear

reference to the authority in Article 42.12, Section 11(19). In Mayer, the defendant had been

found indigent and qualified for court-appointed counsel at trial and on appeal. Mayer thus

claimed it was error for the trial court to order him to reimburse the county for court-appointed

attorney’s fees. In light of the evidence of Mayer’s indigency, and the State’s failure to offer any

evidence that Mayer then possessed the ability to pay those fees, it was proper for the court of

appeals to have stricken the reimbursement order and to decline to remand to the trial court for

further evidence on Mayer’s ability to pay. Mayer, 309 S.W.3d at 557.

           We find the reasoning in Mayer controlling here.   Brown, having been found indigent by

the trial court, is presumed (absent any evidence of a material change in his circumstances) to

remain indigent throughout the proceedings of the case. TEX. CODE CRIM. PROC. ANN. art.
5
    See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 11(a)(19).

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26.04(p) (West Supp. 2010). There being neither any evidence in the record of the charges upon

which the ordered $140.00 reimbursement fee was based, nor a showing of Brown’s ability to pay

that reimbursement fee, we modify the trial court’s judgment to delete the award of

reimbursement.6

        As modified, we affirm the trial court’s judgment and sentence.




                                                     Bailey C. Moseley
                                                     Justice

Date Submitted:           July 11, 2011
Date Decided:             August 2, 2011

Do Not Publish




6
 The cases cited by the State are inapposite: Barton v. State, 21 S.W.3d 287, 290 (Tex. Crim. App. 2000) (restitution
assessed as term of community supervision); Campbell v. State, 5 S.W.3d 693, 695, 702 (Tex. Crim. App. 1999)
(restitution recommended as term of parole). The State’s citation to an unpublished case, Jester v. State, No.
12-08-00072-CR, 2010 Tex. App. LEXIS 341 (Tex. App.––Tyler Jan. 10, 2010, no pet.), is unpersuasive, as it
involved restitution for back child support where the conviction was for criminal nonsupport. The Texas Court of
Criminal Appeals in Mayer also rejected the State’s request for a remand to the trial court to supplement the record
regarding the appellant’s ability to pay reimbursement.

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