                              Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION
                                        No. 04-14-00348-CR

                                           Jacob KLEIN,
                                             Appellant

                                                v.
                                           The STATE
                                       The STATE of Texas,
                                             Appellee

                     From the 144th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2013CR2866
                               Honorable Pat Priest, Judge Presiding

Opinion by:      Rebeca C. Martinez, Justice

Sitting:         Karen Angelini, Justice
                 Marialyn Barnard, Justice
                 Rebeca C. Martinez, Justice

Delivered and Filed: February 4, 2015

AFFIRMED AS MODIFIED; MOTION TO WITHDRAW GRANTED

           Jacob Klein pled true to violating conditions of his deferred adjudication community

supervision. The trial court found that Klein violated the conditions of his community supervision,

adjudicated Klein guilty, and revoked his community supervision. The court sentenced Klein to

five years’ imprisonment in the Texas Department of Criminal Justice–State Jail Division, assessed

a fine of $1,000, and maintained the prior restitution order. Klein was also assessed court costs

and attorney’s fees. He now appeals.
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       Klein’s court-appointed attorney filed a brief containing a professional evaluation of the

record in accordance with Anders v. California, 386 U.S. 738 (1967). Counsel concludes that the

appeal has no merit. Counsel provided Klein with a copy of the brief and informed him of his

right to review the record and to file his own brief. See Nichols v. State, 954 S.W.2d 83, 85-86

(Tex. App.—San Antonio 1997, no pet.); Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.—

San Antonio 1996, no pet.). Klein did not file a pro se brief. After reviewing the record and

counsel’s brief, we agree that the appeal is frivolous and without merit.

       The judgment signed by the trial court on April 14, 2014, however, assesses attorney’s fees

in an undetermined amount against Klein. The district clerk has filed a supplemental record

containing a certified bill of costs. See TEX. CODE CRIM. PROC. ANN. art. 103.006 (West 2006)

(providing that if a criminal action is appealed, an officer of the court shall certify and sign a bill

of costs stating the costs that have accrued and send the bill of costs to the appellate court). The

bill of costs states that the amount of court-appointed attorney’s fees assessed against Klein is

“TBD.” See Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011) (“attorney’s fees

as set forth in a certified bill of costs are effective whether or not incorporated by reference in the

written judgment”). It is apparent from the record that the trial court found Klein to be indigent

and appointed counsel to represent him in the trial court and on appeal. There is nothing in the

record to support a finding that Klein’s ability to pay attorney’s fees changed after the trial court

determined him to be indigent. See Wiley v. State, 410 S.W.3d 313, 317 (Tex. Crim. App. 2013)

(explaining that a defendant who was previously found to be indigent is presumed to remain

indigent and, absent any indication in the record that the defendant’s financial status has changed,

the evidence will not support the imposition of attorney’s fees); see also TEX. CODE CRIM. PROC.

ANN. art. 26.04(p) (West Supp. 2014). Absent a showing of a material change in Klein’s financial

circumstances, it was error for attorney’s fees to be assessed against him. See Fulmer v. State, 401
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S.W.3d 305, 318-19 (Tex. App.—San Antonio 2013, pet. ref’d). Therefore, we modify the

judgment to delete the assessment of attorney’s fees against Klein. Id. at 318. The district clerk

is ordered to delete the attorney’s fees from the bill of costs and to prepare and file a corrected bill

of costs in this case. See Green v. State, No. 04-13-00018-CR, 2013 WL 6200328, at *2 (Tex.

App.—San Antonio Nov. 27, 2013, no pet.) (mem. op., not designated for publication) (reforming

both the judgment and the bill of costs to delete the assessment of attorney’s fees against an

indigent criminal defendant); see also Benavidez v. State, 423 S.W.3d 520, 522 (Tex. App.—San

Antonio 2014, no pet.).

        Accordingly, the judgment of the trial court is affirmed as modified, and appellate

counsel’s request to withdraw is granted. Nichols, 954 S.W.2d at 86; Bruns, 924 S.W.2d at 177

n.1. No substitute counsel will be appointed. Should Klein wish to seek further review of this

case by the Texas Court of Criminal Appeals, Klein must either retain an attorney to file a petition

for discretionary review or Klein must file a pro se petition for discretionary review. Any petition

for discretionary review must be filed within thirty days from the later of: (1) the date of this

opinion; or (2) the date the last timely motion for rehearing is overruled by this court. See TEX. R.

APP. P. 68.2. Any petition for discretionary review must be filed in the Texas Court of Criminal

Appeals. See TEX. R. APP. P. 68.3. Any petition for discretionary review should comply with the

requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.


                                                    Rebeca C. Martinez, Justice


Do not publish




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