AFFIRMED AS MODIFIED and Opinion Filed September 26, 2013.




                                                  SIn The
                                             Court of Appeals
                                      Fifth District of Texas at Dallas

                                               No. 05-12-00375-CR

                                         RIGOBERTO BENITO
                                                 V.
                                     THE STATE OF TEXAS, Appellee

                           On Appeal from the 401st Judicial District Court
                                        Collin County, Texas
                                Trial Court Cause No. 401-81659-09

                                     MEMORANDUM OPINION
                               Before Justices Fillmore, Myers, and Maloney 1
                                        Opinion by Justice Maloney

         The jury convicted Rigoberto Benito of continuous sexual abuse and indecency with a

child and sentenced him to fifty-five years’ confinement for continuous sexual abuse and

sentenced him to five years confinement for indecency with a child. The trial court ordered the

sentences to be served concurrently. In a single point of error, appellant complains the trial court

erred in assessing court appointed attorney’s fees as court costs. The State agrees the record

contains no evidence to support the fees assessed because appellant was indigent.

         Once the trial court finds a defendant indigent, we presume he remains indigent for the

remainder of the proceedings unless a material change occurs in his financial resources. See


    1
      The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by
assignment.
TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2012). To assess attorney’s fees, the

trial court must determine the defendant has the financial resources to cover those costs. See

Youkers v. State, 400 S.W.3d 200, 212–13 (Tex. App.—Dallas, pet. ref’d); see also TEX. CODE

CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2012); Mayer v. State, 309 S.W.3d 552, 556 (Tex.

Crim. App. 2010).

       Neither the State nor appellant cites us to any evidence in the record that appellant’s

financial circumstances have materially changed since the trial court determined that he was

indigent. We agree that the evidence does not support an assessment of attorney’s fees as court

costs. Consequently, we sustain appellant’s issue and modify the trial’s judgment by deleting the

order taxing the cost of attorney’s fees against appellant as court costs.

       We affirm the trial court’s judgment as modified.




                                                       /Frances Maloney/
                                                       FRANCES MALONEY
                                                       JUSTICE, ASSIGNED


Do Not Publish
TEX. R. APP. P. 47

120375F.U05




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                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

RIGOBERTO BENITO, Appellant                          On Appeal from the 401st Judicial District
                                                     Court, Collin County, Texas
No. 05-12-00375-CR         V.                        Trial Court Cause No. 401-81659-09.
                                                     Opinion delivered by Justice Maloney.
THE STATE OF TEXAS, Appellee                         Justices Fillmore and Myers participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       We modify the trial court's judgment to delete the order taxing the cost of
       attorney’s fees against appellant as court costs.

As MODIFIED, the judgment is AFFIRMED.


Judgment entered this 26th day of September, 2013.




                                                     /Frances Maloney/
                                                     FRANCES MALONEY
                                                     JUSTICE, ASSIGNED




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