                                 NO. 07-10-00153-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL D

                                   AUGUST 31, 2010


                   STANLEY WAYNE KIRKPATRICK, APPELLANT

                                           v.

                         THE STATE OF TEXAS, APPELLEE


           FROM THE 54TH DISTRICT COURT OF MCLENNAN COUNTY;

          NO. 2004-474-C2; HONORABLE DERWOOD JOHNSON, JUDGE


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                              MEMORANDUM OPINION

      The community supervision of appellant Stanley Wayne Kirkpatrick was revoked

and he was sentenced to confinement in a state jail and assessed a fine and court

costs. He appeals that portion of the written judgment ordering reimbursement of court-

appointed attorney’s fees. Concluding no evidence supports the challenged portion of

the judgment, we will modify the judgment and affirm it as modified.
                                        Background


       Appellant was indicted for possession of cocaine in an amount less than one

gram.1 He filed a financial affidavit for appointment of counsel and counsel was

appointed on a finding of indigence.        After he plead guilty under a plea bargain

agreement, in December 2004, the trial court adjudicated him guilty, and assessed

punishment of a $2000 fine and two years confinement in a state jail, but probated the

confinement in favor of community supervision for five years.


       The State subsequently sought revocation of appellant’s community supervision

order alleging ten violations. Before hearing the motion, the trial court again found

appellant indigent and appointed counsel for him. At the revocation hearing in August

2008, appellant plead true to all but one of the violations alleged. The court revoked

appellant’s community supervision and sentenced him to two years confinement in a

state jail and assessed a $2,000 fine. The written judgment orders appellant pay court

costs of $1,353. It further provides “[t]he Court assesses all court appointed attorney’s

fees, investigator’s fees, and interpreter’s fees as costs in this cause and Orders the

defendant to pay the same.” According to the clerk’s bill of costs, court costs include

attorney’s fees of $900.




       1
            See Tex. Health & Safety Code Ann. § 481.115(b) (Vernon 2010). This is a
state jail felony punishable by confinement in a state jail facility for any term of not more
than two years or less than 180 days and a fine not to exceed $10,000. Tex. Penal
Code Ann. § 12.35 (Vernon Supp. 2009).

                                             2
                                          Analysis


        Through a single issue appellant argues, “[t]he trial court erred in assessing

court-appointed attorney’s fees against Appellant because Appellant was indigent.”2

The thrust of appellant’s supporting argument is a defendant who receives court-

appointed counsel may be required to offset the cost of counsel but nothing in the

present record supports appellant’s ability to repay his attorney’s fees. Appellant prays

for reformation of the judgment deleting the assessment of court-appointed attorney’s

fees.       The State acknowledges multiple findings by the trial court of appellant’s

indigence and concedes the record does not show appellant could repay the entire fee

of his appointed counsel. But it contends there was some evidence appellant could

repay a portion of his attorney’s fees and the case therefore should be remanded for

determination of this amount.


        Under article 26.05(g) of the Texas Code of Criminal Procedure, the trial court

has authority to order reimbursement of the fees of court-appointed counsel 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. Tex. Code Crim. Proc. Ann. art.

26.05(g) (Vernon Supp. 2009); see Mayer v. State, 274 S.W.3d 898, 901 (Tex.App.--

Amarillo 2008), aff’d, Mayer v. State, 309 S.W.3d 552 (Tex.Crim.App. 2010). “[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.”

Mayer, 309 S.W.3d at 556.         Accordingly, the record must supply a factual basis

        2
        Appellant was permitted an out-of-time appeal of the August 2008 judgment
revoking his community supervision.
                                              3
supporting a determination the defendant is capable of repaying the attorney’s fees

levied. Barrera v. State, 291 S.W.3d 515, 518 (Tex.App.--Amarillo 2009, no pet.) (per

curiam).


       To support its contention some evidence showed appellant’s ability to offset the

legal fees of appointed counsel, the State points to testimony at the revocation hearing

and the content of the financial affidavits appellant submitted in support of his requests

for appointed counsel. The reporter’s record from the revocation hearing contains nine

pages of testimony. No documentary evidence was offered or admitted. Appellant was

the lone witness.     The only conceivable evidentiary reference at the hearing to

appellant’s ability to repay or offset a portion of his legal fees occurred in the following

exchanges:


       Q.     Why did you stop reporting [to the community supervision office]?
       ***
       A.     I felt like I was unjustly treated.
       Q.     By whom?
       A.     By the City of Waco and also my lawyer.
       Q.     Did you seek counsel elsewhere?
       A.     I didn’t have the funds.
       Q.    Okay. Now, you are talking about the City of Waco. Would you tell
       the Court what that’s all about.
       A.     I had some land that my grandfather left and I was trying to work
       on. And I got all kinds of fines. I’ve got one now for three hundred dollars.
       They call it unlocked storage or some kind of storage thing. It’s on the
       record.
       ***
       Q.     And for three years you lived here in Waco; is that correct?
                                                4
      A.     That’s true.
      ***
      Q.     What did you do?
      A.      I worked on cars and tried to keep change in my pocket to help my
      family.
      Q.     What kind of family do you have in this area?
      A.     I have my mother. I have three kids and seven grandkids.
      Q.     Did you help support them?
      A.     Yes, I did.

      The clerk’s record contains the financial affidavits submitted by appellant prior to

his indictment and prior to the hearing of the State’s motion to revoke. Assuming,

without deciding, that we properly consider the contents of the affidavits in our

sufficiency review,3 we conclude they present no evidence appellant possessed

financial resources to repay or offset the costs of legal services. Appellant’s original

affidavit, dated in December 2003, contains limited data. It indicates appellant was self-

employed, claimed three dependants, ages 22, 23, and 24, worked some number of

hours each week at $7.00 per hour, did not own a house or real property, and did not

own a car or motorcycle. Inconsistently, it also contains no indications of expenses.


      3
         Neither document was offered or admitted in evidence at the revocation hearing
nor does the record indicate the trial court considered them before ordering repayment
of court appointed attorney’s fees. “When documents appear in the clerk’s record that
have not been introduced in evidence, they cannot be considered as part of the record.”
Webber v. State, 21 S.W.3d 726, 731 (Tex. App.--Austin 2000, pet. refused). This is not
a case where the trial court and the parties, without objection, treated documents
contained in the clerk’s record as admitted in evidence. See Killion v. State, 503 S.W.2d
765 (Tex.Crim.App. 1973) (even though written stipulations were not admitted in
evidence reviewing court could consider them as they were considered by trial court in
adjudicating guilt for theft and burglary).

                                            5
The document includes the trial court’s finding of indigence. The second affidavit, made

in July 2008, also contains skimpy data. It indicates appellant was unemployed for two

years, had no dependants, had no monthly income or expenses, owned no house or

real estate, had no bank account, savings account, or “other assets.” It also contained

a finding of indigence.


       Likewise, appellant’s trial testimony is of no evidentiary worth for establishing

financial resources sufficient to repay or offset appellant’s attorney’s fees. One perhaps

might infer from his one-sentence statement about “land that my grandfather left” that

he inherited an interest in the real property that was the subject of his dispute with the

City of Waco. Determining whether the property is a valuable asset or a liability for

appellant, however, requires resort to surmise and speculation.           Moreover, that

appellant worked for three years to support his family members affords no reasonable

basis for concluding that on the eve of commitment to a state jail he possessed

resources sufficient to repay or offset the fees of appointed counsel. Even under a

preponderance of the evidence standard, when the evidence offered to prove a vital fact

is so weak as to do no more than create a mere surmise or suspicion of its existence, it

is in legal effect no evidence, and will not support a verdict or judgment. Seideneck v.

Cal Bayreuther Assocs., 451 S.W.2d 752, 755 (Tex. 1970).


       We conclude the evidence, when viewed in the light most favorable to the

judgment of the trial court, does not support a conclusion that appellant was capable of

repaying or offsetting the attorney’s fees assessment.        Appellant’s sole issue is

sustained.

                                            6
       We also cannot agree with the State’s suggestion we remand for determination

of the “proper amount” of appellant’s attorney’s fees reimbursement. See Mayer, 309

S.W.3d at 557 (finding court of appeals did not err by failing to remand).


       We therefore modify the judgment as follows. From the total court costs taxed of

$1,353 we subtract $900 as the fees of appointed counsel leaving total court costs

assessed of $453. The judgment includes the following:


              “Furthermore, the following special findings or orders apply:


       The Court assesses all court appointed attorney’s fees, investigator’s fees,
       and interpreter’s fees as costs in this cause and Orders the defendant to
       pay the same.”
This order is modified to provide:
              “Furthermore, the following special findings or orders apply:


       The Court assesses all investigator’s fees and interpreter’s fees as costs
       in this cause and Orders the defendant to pay the same.
       As used in this judgment, the term “court costs” does not include court
       appointed attorney’s fees.”

                                       Conclusion


       Having sustained appellant’s sole issue, we modify the judgment of the

trial court in the manner specified and affirm the judgment as modified.




                                                        James T. Campbell
                                                             Justice


Do not publish.
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