                                   NO. 12-15-00212-CR

                           IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

TONY LAMONT JONES,                                §     APPEAL FROM THE 7TH
APPELLANT

V.                                                §     JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                          §     SMITH COUNTY, TEXAS

                                   MEMORANDUM OPINION
          Tony Lamont Jones appeals following his conviction for felony theft. In one issue,
Appellant argues that the trial court improperly assessed attorney’s fees as costs against him. We
affirm.


                                           BACKGROUND
          Appellant was charged by indictment with felony theft and pleaded “guilty.” The trial
court deferred finding Appellant “guilty” and placed him on community supervision for four
years. As a condition of his community supervision, Appellant agreed to pay “all court cost[s],
including any appointed counsel fee at the rate of $20 each month beginning October 2014.”
          On July 1, 2015, the State filed a motion to proceed to final adjudication, arguing that
Appellant had violated certain terms and conditions of his community supervision. The trial
court conducted a hearing on the matter. At the conclusion of the hearing, the trial court found
that Appellant had violated certain terms and conditions of his community supervision as alleged
in the State’s motion, adjudicated Appellant “guilty” of felony theft, and sentenced him to
imprisonment for twenty-two months. The trial court also ordered Appellant to pay court costs.
This appeal followed.
                              ATTORNEY’S FEES AS COURT COSTS
       In his sole issue, Appellant argues that the trial court erred in assessing court costs as
attorney’s fees against him because he was found to be indigent.
       A challenge to the sufficiency of the evidence supporting court costs is reviewable on
direct appeal in a criminal case. See Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App.
2011). We measure sufficiency by reviewing the record in the light most favorable to the award.
See Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Cardenas v. State, 403
S.W.3d 377, 388 (Tex.–Houston [1st Dist.] 2013, no pet.). Requiring a convicted defendant to
pay court costs does not alter the range of punishment, is authorized by statute, and is generally
not conditioned on a defendant’s ability to pay. See TEX. CODE CRIM. PROC. ANN. art. 42.16
(West 2006); Armstrong, 340 S.W.3d at 767; see also Johnson v. State, 405 S.W.3d 350, 354
(Tex. App.–Tyler 2013, no pet.).
       Some court costs, such as attorney’s fees, may not be assessed against a defendant if he
was found indigent because his indigence is presumed to continue throughout the remainder of
the proceedings “unless a material change in [his] financial circumstances occurs.” See TEX.
CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2015). If a trial court does not make a
determination that a defendant’s financial circumstances materially changed that is also
supported by some factual basis in the record, the evidence will be insufficient to impose
attorney’s fees as court costs. See TEX. CODE CRIM. PROC. ANN. arts. 26.04(p), 26.05(g) (West
Supp. 2012); Mayer, 309 S.W.3d at 553; Wolfe v. State, 377 S.W.3d 141, 144, 146 (Tex. App.–
Amarillo 2012, no pet.).
       In the instant case, the Order of Deferred Adjudication reflects that the trial court
assessed $614.00 in court costs. A certified bill of costs appears in the record itemizing the
balance of the court costs imposed, which total $614.00. That bill of costs includes an item listed
as “attorney’s fees” in the amount of $300.00.
       Following the revocation of Appellant’s community supervision and imposition of
sentence, the trial court signed a written judgment adjudicating guilt, in which it assessed court
costs in the amount of $289.00. The judgment includes a document identified as “Attachment A
Order to Withdraw Funds,” which states that Appellant has incurred “[c]ourt costs, fees and/or




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fines and/or restitution” in the amount of $289.00. However, there is no other certified bill of
costs in the record that corresponds to this additional assessment of costs.1
Assessment of Court Costs in the Order of Deferred Adjudication
         When an accused receives deferred adjudication, the judgment adjudicating guilt sets
aside the order deferring adjudication. See Hunter v. State, No. 12-15-00268-CR, 2016 WL
1599917, at *2 (Tex. App.–Tyler Apr. 20, 2016, no pet. h.) (mem. op., not designated for
publication) (citing Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004)). Thus,
because the Order of Deferred Adjudication in the instant case is no longer in effect, its
assessment of attorney’s fees as costs is a nullity. We, thus, decline to modify that order.
Assessment of Costs in Judgment Adjudicating Guilt
         Appellant argues, in the alternative, that because the record is not clear regarding how the
$289.00 in costs was calculated, we should remand the cause to the trial court so that it may
clarify the basis, if any, for the costs ordered.
         Based on our review of the bill of costs, we note that when two items are removed,
namely the $300.00 assessed as attorney’s fees and the $25.00 assessed as “time payment,”2 the
total amount is reduced to $289. This amount corresponds to the costs assessed in the trial
court’s judgment. Because the Order of Deferred Adjudication is no longer in effect and the trial
court found Appellant to be indigent, the assessment of attorney’s fees would not have been
appropriate. See Mayer, 309 S.W.3d at 553. Moreover, the assessment of the “Time Payment”
cost is contingent on Appellant’s failure to pay by date certain. Therefore, we conclude that the
trial court did not assess any attorney’s fees as costs and remand is unnecessary to clarify the
basis for how the $289.00 in costs were calculated.
         Appellant’s sole issue is overruled.

                                                    DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.



         1
          We requested that the clerk’s record be supplemented to include any additional bill of costs, but were
informed that no such document exists.
         2
           At the bottom of the bill of costs, it is noted that the time payment fee is assessed only if any part of a
fine, court costs, or restitution is paid on or after the thirty-first day after the date the judgment assessing the fine,
court costs, or restitution is entered.




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                                                                JAMES T. WORTHEN
                                                                   Chief Justice



Opinion delivered May 11, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                              MAY 11, 2016


                                         NO. 12-15-00212-CR


                                      TONY LAMONT JONES,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                  Appeal from the 7th District Court
                         of Smith County, Texas (Tr.Ct.No. 007-0812-14)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
