                                   NO. 12-16-00102-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                        TYLER, TEXAS

EDDIE RAY JACKSON,                               §       APPEAL FROM THE 7TH
APPELLANT

V.                                               §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §       SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
        Eddie Ray Jackson appeals the trial court’s order revoking community supervision. In
two issues, Appellant argues that the trial court erred by assessing attorney’s fees, and that the
evidence is insufficient to support the restitution order. We affirm.


                                          BACKGROUND
        Appellant was charged by indictment with forgery. Pursuant to a plea bargain agreement
with the State, Appellant pleaded “guilty” to the offense, and after deferring a finding of guilt,
the trial court placed Appellant on community supervision for a period of three years. As a
condition of Appellant’s community supervision, the trial court ordered that he pay $1,565.32 in
restitution.
        Subsequently, the State filed an application to proceed to final adjudication alleging that
Appellant had violated certain conditions of his community supervision. The trial court granted
the State’s application, adjudicated Appellant’s guilt, and assessed his punishment at
imprisonment for two years, suspended for a period of five years. The trial court again ordered
that he pay $1,565.32 in restitution.
        Thereafter, the State filed an application to revoke Appellant’s community supervision.
The trial court granted the application, assessed Appellant’s punishment at imprisonment for
eighteen months, and ordered that he pay the remaining $1,270.32 in restitution. This appeal
followed.


                                        ATTORNEY’S FEES
       In Appellant’s first issue, he contends that the trial court erred by imposing attorney’s
fees against him.
Standard of Review and Applicable Law
       The imposition of court costs upon a criminal defendant is a “nonpunitive recoupment of
the costs of judicial resources expended in connection with the trial of the case.” Johnson v.
State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). When the imposition of court costs is
challenged on appeal, we review the assessment of costs to determine if there is a basis for the
costs, not to determine if sufficient evidence to prove each cost was offered at trial. Id. A bill of
costs is not required to sustain statutorily authorized and assessed court costs, but it is the most
expedient and, therefore, the preferable method. Id. at 396. If a bill of costs is omitted, one can
be prepared and presented to the appellate court in a supplemental clerk’s record. Id. at 392.
       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.
2016). But once a criminal defendant has been determined to be indigent, he “is presumed to
remain indigent for the remainder of the proceedings unless a material change in his financial
circumstances occurs.” TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2016). Before
attorney’s fees may be imposed, the trial court must make a determination supported by some
factual basis in the record that the defendant has the financial resources to enable him to offset in
part or in whole the costs of the legal services provided. See 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, there is no basis for the imposition of attorney’s fees. See
TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Mayer v. State, 309 S.W.3d 552, 553, 557 (Tex.
Crim. App. 2010); Johnson, 405 S.W.3d at 354.
       No objection is necessary to preserve a claim that there is no evidence of a defendant’s
ability to pay attorney’s fees. Mayer, 309 S.W.3d at 556. But where such a claim arises from an
order originally imposing community supervision, the defendant must bring it in a direct appeal
from that order or risk forfeiture. Wiley v. State, 410 S.W.3d 313, 318 (Tex. Crim. App. 2013).



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The claim is forfeited if the defendant was aware of his obligation to pay the fees but did not
bring the claim in a direct appeal. Riles v. State, 452 S.W.3d 333, 337 (Tex. Crim. App. 2015).
Analysis
       Appellant argues that the trial court erred by imposing attorney’s fees against him
without evidence of his ability to pay them. He first contends that because the record does not
contain a bill of costs, we should modify the trial court’s judgment to delete all of the court costs.
Alternatively, Appellant contends that we should modify the trial court’s judgment to delete only
the attorney’s fees. We decline to do either.
       First, we note that after Appellant filed his brief, the record was supplemented with a bill
of costs. See Johnson, 423 S.W.3d at 392. The bill of costs lists court costs totaling $604,
including $300 in attorney’s fees. However, the assessment of court costs in the final judgment
is $179, which is less than the court costs without the attorney’s fees. Thus, the bill of costs
provides a basis for the final court cost assessment. See id. at 390.
       Furthermore, even if the attorney’s fees were included in the final judgment, Appellant
has forfeited his claim that they are improper. Because Appellant’s claim arises from the order
originally imposing community supervision, he was required to bring it in a direct appeal from
that order, if he was aware of his obligation to pay the fees. See Wiley, 410 S.W.3d at 318; Riles,
452 S.W.3d at 337. The record shows that Appellant was aware of this obligation. He signed his
Conditions of Community Supervision, which provided that he was to “[p]ay all court cost [sic],
including any appointed counsel fee at the rate of $20 each month beginning June 2014.” We
conclude that Appellant forfeited his claim by failing to bring it in a direct appeal from the order
imposing community supervision. See id. Accordingly, we overrule Appellant’s first issue.


                                           RESTITUTION
       In Appellant’s second issue, he argues that there is insufficient evidence in the record to
support the assessment of restitution.
Standard of Review and Applicable Law
       An appellate court reviews a challenge to a restitution order under an abuse of discretion
standard. Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. [Panel Op.] 1980). Due
process is implicated when the trial court abuses its discretion in setting the amount of
restitution. See id. There must be sufficient evidence in the record to support a trial court’s



                                                  3
restitution order, and the defendant is not required to object to preserve an evidentiary
sufficiency challenge concerning the order. See Mayer v. State, 309 S.W.3d 552, 555 (Tex.
Crim. App. 2010). Due process places the following limitations on the restitution a trial court
may order: (1) the restitution must be for injuries or damages for which the defendant is
criminally responsible, (2) the restitution must be directed to the victim or victims of the offense,
and (3) the restitution amount must be just and supported by a factual basis in the record. Burt v.
State, 445 S.W.3d 752, 758 (Tex. Crim. App. 2014).
       While no objection is necessary to preserve a sufficiency challenge, if such a claim arises
from an order originally imposing community supervision, the defendant must bring it in a direct
appeal from that order or risk forfeiture. Manuel v. State, 994 S.W.2d 658, 662 (Tex. Crim.
App. 1999); see Bailey v. State, 160 S.W.3d 11, 13 (Tex. Crim. App. 2004). The claim is
forfeited if the defendant was aware of his obligation to pay the restitution but did not bring the
claim in a direct appeal. See Riles, 452 S.W.3d at 337.
Analysis
       Appellant argues that the evidence is insufficient to show that the restitution is directed to
the victim or victims of the offense. See Burt, 445 S.W.3d at 758. However, even if the
evidence is insufficient, Appellant has forfeited his claim. Because Appellant’s claim arises
from the order originally imposing community supervision, he was required to bring it in a direct
appeal from that order, if he was aware of his obligation to pay the restitution. See Manuel, 994
S.W.2d at 662; Bailey, 160 S.W.3d at 13; Riles, 452 S.W.3d at 337.
       The record shows that Appellant was aware of his obligation to pay restitution. He
signed his Conditions of Community Supervision, which provided that he was to “[p]ay
restitution in the total amount of $1,565.32 at the rate of $50 each month beginning June 2014.”
Moreover, Appellant acknowledged at his sentencing hearing that he had reviewed his
presentence investigation report, which contains the victim’s affidavit with the amount of
restitution. Finally, the trial court orally pronounced the restitution order when it placed him on
deferred adjudication community supervision. We conclude that Appellant forfeited his claim by
failing to bring it in a direct appeal from the order imposing community supervision. See id.
Accordingly, we overrule Appellant’s second issue.




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                                                   DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the trial court’s
judgment.

                                                                 GREG NEELEY
                                                                    Justice

Opinion delivered August 17, 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

                                           AUGUST 17, 2016


                                         NO. 12-16-00102-CR


                                      EDDIE RAY JACKSON,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                  Appeal from the 7th District Court
                         of Smith County, Texas (Tr.Ct.No. 007-0111-14)

                        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.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
