                                 NUMBER 13-11-00646-CR

                                 COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

KIRK D. BECK
A/K/A KIRK DARWIN BECK,                                                                  Appellant,

                                                   v.

THE STATE OF TEXAS,                                                                      Appellee.


                      On appeal from the 252nd District Court
                           of Jefferson County, Texas.


                             MEMORANDUM OPINION1
              Before Justices Rodriguez, Benavides, and Perkes
                  Memorandum Opinion by Justice Perkes
        Appellant Kirk D. Beck a/k/a Kirk Darwin Beck appeals his conviction for injury to

an elderly individual, a third-degree felony. See TEX. PENAL CODE ANN. § 22.04 (a)(3)(f)

(West 2011). By one issue, appellant challenges the sufficiency of the evidence to

        1
           This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
support the trial court’s judgment that he pay attorney’s fees despite his indigency. We

affirm as modified.

                                         I. BACKGROUND2

        Appellant was indicted for the felony offense of injury to an elderly individual.

After appellant pleaded guilty, the trial court deferred the adjudication of his guilt and

placed him on community supervision for ten years.                      The trial court subsequently

revoked appellant’s unadjudicated community supervision after he pleaded true to

violating the terms and conditions of his community supervision. Upon finding appellant

guilty, the trial court sentenced him to twenty years' confinement in the Texas Department

of Criminal Justice, Institutional Division, and it assessed $619.00 in court costs and

$2,920.00 in administrative fees against him.                        The trial court’s Revocation

Restitution/Reparation Balance Sheet itemized the fees, which included $1,000.00 in

attorney’s fees. This appeal followed.

                                      II. ATTORNEY’S FEES

        By a single issue on appeal, appellant argues that the trial court erred in assessing

attorney’s fees against him because it had previously determined that he was indigent.3

The court costs and administrative fees assessed against appellant are itemized in the

trial court’s Revocation Restitution/Reparation Balance Sheet, which was attached to the

Judgment Adjudicating Guilt, as follows:
        2
           Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
        3
            The State concedes that appellant was indigent and that the trial court should not have taxed
attorney’s fees against him. While the State's confession of error in a criminal case is an important factor,
it is not conclusive, and the appellate court must make an independent examination of the merits of any
issue raised on appeal. Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002).

                                                     2
       ADMINISTRATIVE FINANCIAL OBLIGATIONS:

       A.   SUPERVISION FEES                      Amount Owed:         $ 1020.00
       B.   BMT CS FEE                            Amount Owed:         $   50.00
       C.   PSI FEE                               Amount Owed:         $ 350.00
       D.   FINE                                  Amount Owed:         $ 500.00
       E.   COURT COST                            Amount Owed:         $ 295.00
       F.   ATTORNEY[‘S] FEE[S]                   Amount Owed:         $ 1000.00
       G.   TRANS FEE                             Amount Owed:         $    0.00
       H.   REVOCATION COURT COSTS                Amount Owed:         $ 324.00

       Appellant contends that the $1000.00 attorney’s fees were newly imposed by the

trial court at the revocation hearing and, given that appellant was indigent, improper.

       The record does not indicate whether the attorney’s fees originated from the

revocation hearing or from previous proceedings. But, the record does confirm that the

trial court had previously determined appellant to be indigent, and there is no evidence in

the record suggesting that his circumstances had changed by the time of his adjudication

hearing. The State does not dispute that appellant was indigent and remained indigent

throughout the proceedings in this case. And it is true that a defendant determined to be

indigent cannot be charged for legal services provided to him. See Mayer v. State, 309

S.W.3d 552, 556 (Tex. Crim. App. 2010) (concluding that a "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."); see also TEX. CODE CRIM.

PROC. ANN. art. 26.05(g) (West Supp. 2011) ("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, including any expenses and costs, the court shall order the defendant

to pay during the pendency of the charges or, if convicted, as court costs the amount that

it finds the defendant is able to pay."); id. art. 26.04(p) (West Supp. 2011) ("A defendant

                                              3
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."). Therefore, as the State concedes, the trial court erred

in assessing $1,000.00 in attorney's fees against appellant.4 We sustain appellant’s

issue as to the trial court's assessment of attorney's fees.

                                          III. CONCLUSION

        Because the trial court's judgment was impermissible under the law and facts in

this case, we delete that portion of the judgment assessing $1,000.00 in attorney's fees

against appellant. We affirm the judgment as modified.




                                                             GREGORY T. PERKES
                                                             Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the
23rd day of August, 2012.



        4
            This is not to suggest that a court cannot condition community supervision on payment of
attorney’s fees. On the contrary, the Texas Code of Criminal Procedure expressly allows such conditions.
See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 11(a)(11) (West 2006). But, “agreeing to pay attorney’s
fees as a condition of community supervision and having the actual ability to pay those fees are two entirely
different concepts.” Wolfe v. State, No. 07-10-0201-CR, 2012 Tex. App. LEXIS 5368, at *11 (Tex.
App.—Amarillo Jul. 6, 2012, no pet. h.), reh’g denied, No. 07-10-0201-CR, 2012 Tex. App. LEXIS 5483, at
*1 (Tex. App.—Amarillo Jul. 10, 2012) (en banc). The trial court officially revoked appellant’s
unadjudicated community supervision. At issue is whether the trial court could then enforce attorney’s
fees as part of its Judgment Adjudicating Guilt. Given that “[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,” TEX. CODE CRIM. PROC. ANN. art.
26.04(p) (West Supp. 2011), the trial court could not impose attorney’s fees against appellant as part of the
judgment absent some evidence that his circumstances had changed since the indigency determination.
Under Mayer, because no such evidence appears in the record, appellant’s indigent status is presumed to
have continued, and he could not thus be ordered to pay attorney’s fees. See Mayer, 309 S.W.3d at 556;
see also Derby v. State, No. 09-11-00256-CR, 2011 Tex. App. LEXIS 9810, at *7 (Tex. App.—Beaumont
Oct. 17, 2011, no pet.) (mem. op., not designated for publication).
                                                     4
