                                      NO. 12-15-00290-CR

                             IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

DUSTIN EDWARD KLENDWORTH,                            §     APPEAL FROM THE
APPELLANT

V.                                                   §     COUNTY COURT AT LAW NO. 2

THE STATE OF TEXAS,
APPELLEE                                             §     HENDERSON COUNTY, TEXAS

                                     MEMORANDUM OPINION
       Dustin Edward Klendworth appeals his conviction for resisting arrest, search, or
transport. In his sole issue on appeal, Appellant contends that the evidence is insufficient to
support the trial court’s order that he pay attorney’s fees. We modify the trial court’s judgment,
and affirm as modified.


                                              BACKGROUND
       Appellant was charged by complaint and information for the offense of resisting arrest,
search, or transport.1 The trial court determined that Appellant was indigent and appointed
counsel to represent him. The case proceeded to a jury trial. The jury found Appellant guilty of
the charged offense, sentenced him to 365 days of confinement in the Henderson County jail,
and assessed a fine of $2,000.00.          No evidence was presented by either side at the trial
concerning Appellant’s indigence or attorney’s fees. The trial court’s judgment ordered that
Appellant pay $900.00 in attorney’s fees. This appeal followed.




       1
           See TEX. PENAL CODE ANN. § 38.03 (West 2011).
                                        ATTORNEY’S FEES
         In his sole issue, Appellant contends that the evidence is legally insufficient to support
the trial court’s assessment of attorney’s fees. He argues that the trial court found him indigent
and that status has not changed.
         A trial court has the authority to assess attorney’s fees against a criminal defendant who
received court appointed counsel. TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp.
2015). Unless a material change in a criminal defendant’s financial resources is established by
competent legal evidence, once that defendant has been found to be indigent, he is presumed to
remain indigent for the remainder of the proceedings.        TEX. CODE CRIM. PROC. ANN. art.
26.04(p) (West Supp. 2015). Before any imposition of attorney’s fees, the trial court must
determine that the defendant has financial resources which enable him to offset, in whole or in
part, the cost of the legal services provided, and that determination must be supported by a
factual basis in the record. Johnson v. State, 405 S.W.3d 350, 354 (Tex. App.—Tyler 2013, no
pet.).   If the record does not show that the defendant’s financial circumstances materially
changed after the previous determination that he was indigent, the evidence will be insufficient
to support the imposition of attorney’s fees. TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Mayer
v. State, 309 S.W.3d 552, 553 (Tex. Crim. App. 2010). An appellant’s complaint about the
sufficiency of the evidence of his financial resources and ability to pay is not waived by his
failure to raise the complaint in the trial court. Mayer, 309 S.W.3d at 556.
         The record shows that the trial court found Appellant indigent and appointed counsel.
However, the judgment indicates that Appellant was ordered to pay $900.00 in attorney’s fees.
Moreover, there is no evidence in the record of a change in Appellant’s financial situation.
Therefore, the trial court erred in ordering Appellant to pay the attorney’s fees. We sustain
Appellant’s sole issue.


                                           DISPOSITION
         Where the evidence is insufficient to support a court’s order of reimbursement of
attorney’s fees, the proper remedy is to reform the judgment by deleting the court appointed
attorney’s fees. See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013). Accordingly,
we modify the trial court’s judgment to delete the order that Appellant pay $900.00 in attorney’s
fees. As modified, we affirm the trial court’s judgment.



                                                 2
                                                                BRIAN HOYLE
                                                                   Justice



Opinion delivered July 20, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)


                                                          3
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JULY 20, 2016


                                         NO. 12-15-00290-CR


                              DUSTIN EDWARD KLENDWORTH,
                                        Appellant
                                           V.
                                  THE STATE OF TEXAS,
                                        Appellee


                            Appeal from the County Court at Law No. 2
                    of Henderson County, Texas (Tr.Ct.No. 2015-0475CCL2)

                       THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below should be modified and, as modified, affirmed.
                       It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment below be modified to delete the order that Appellant pay $900.00 in attorney’s
fees; and as modified, the trial court’s judgment is affirmed; and that this decision be certified
to the trial court below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
