      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00140-CR



                               Albert Eugene Jackson, Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
            NO. 67116, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Albert Eugene Jackson pled guilty to injury to a child. See Tex. Penal

Code Ann. § 22.04 (West 2011). There was no plea bargain, and the trial court assessed punishment

at ten years’ imprisonment. In his only issue on appeal, Jackson contends that the evidence does not

support the court’s order that he pay his court-appointed attorney’s fees. The State concedes error.

               A judge found Jackson to be indigent based on his completion of a financial

questionnaire in which Jackson stated that he was unemployed, had no income, owned no property,

and lived with his parents. Counsel was appointed to represent him until the “charges are dismissed,

the defendant is acquitted, appeals are exhausted, or until relieved by the court or replaced by other

counsel.” During Jackson’s punishment hearing, the trial court inquired whether Jackson had the

ability to work after his release from prison and then pay his attorney’s fees. Jackson answered

affirmatively. The trial court verbally ordered him to pay attorney’s fees in the case, but also
informed Jackson that both an attorney and the reporter’s record would be furnished to him on appeal

if he could not afford to pay for them. The trial court included in the judgment of conviction an

order requiring Jackson to pay attorney’s fees of $438.

                Article 26.04 of the Texas Code of Criminal Procedure governs the procedures for

appointing counsel in a criminal case. Tex. Code Crim. Proc. Ann. art. 26.04 (West Supp. 2010).

A defendant who is determined by the court to be indigent is presumed to remain indigent for the

remainder of the proceedings in the case unless a material change in the defendant’s financial

circumstances occurs. Id. art. 26.04(p). A trial court’s authority to order a defendant to repay the

cost of court-appointed counsel depends upon the court’s determining that the “defendant has

financial resources that enable him to offset in part or in whole the costs of the legal services

provided.” Id. art. 26.05(g) (West Supp. 2010).

                The defendant’s present financial resources and ability to pay are explicit

critical elements under article 26.05(g) that must be supported by record evidence. Mayer v. State,

309 S.W.3d 552, 556 (Tex. Crim. App. 2010). No trial objection is required to preserve the

sufficiency of the evidence for appellate review. Id. When the evidence does not support the order

to pay attorney’s fees, the proper remedy is to delete the order. Id. at 557.

                Appointed counsel represented Jackson at trial after he was determined to be indigent

and continues to represent him on appeal. The State acknowledges that there is no evidence that

Jackson’s financial circumstances materially changed after the court’s initial finding of indigency.

Having carefully reviewed all of the record evidence in the light most favorable to the trial court’s

ruling, we agree with the parties that nothing in the record supports a finding that Jackson’s financial



                                                   2
circumstances had materially changed. See id. (explaining standard of review that applies to trial

court’s decision to order defendant to pay attorney’s fees). As noted above, Jackson answered

affirmatively when the trial court inquired whether Jackson had the ability to work after his

release from prison and then pay his attorney’s fees. But Jackson’s affirmative answer is not

evidence that his financial circumstances had changed between the time of the trial court’s original

indigency determination and the court’s order to pay attorney’s fees; instead, it indicates a

mere possibility of changed future circumstances. See Roberts v. State, 327 S.W.3d 880, 883-84

(Tex. App.—Beaumont 2010, no pet.) (concluding that trial court’s presumption that defendant

might be able to find work in the future did not tend to prove that she presently had financial

resources enabling her to pay attorney’s fees).

               We sustain Jackson’s sole issue. The trial court’s judgment is modified to delete the

order that Jackson pay $438 in attorney’s fees. As modified, the judgment of conviction is affirmed.



                                              __________________________________________

                                              Diane M. Henson, Justice

Before Chief Justice Jones, Justices Pemberton and Henson

Modified, and as Modified, Affirmed

Filed: December 16, 2011

Do Not Publish




                                                  3
