      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-11-00212-CR



                              Thomas Eugene Ludlow, Appellant

                                                 v.

                                  The State of Texas, Appellee


  FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 391ST JUDICIAL DISTRICT
    NO. D-10-0554-SB, THE HONORABLE THOMAS J. GOSSETT, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Thomas Eugene Ludlow pled guilty and judicially confessed to theft with

two prior convictions. See Tex. Penal Code Ann. §§ 31.03(a), (e)(4)(D) (West 2011). In addition,

Ludlow pled true to an enhancement paragraph alleging two prior sequential felony convictions,

thereby increasing the punishment range from that of a state jail felony to that of a second degree

felony. See id. § 12.42(a)(2) (West Supp. 2010). After receiving additional evidence, the trial court

assessed Ludlow’s punishment at confinement for twelve years in the Texas Department of Criminal

Justice. See id. § 12.33 (West 2011).

               Ludlow’s court-appointed attorney has filed a motion to withdraw supported by a

brief concluding that the appeal is frivolous and without merit. The brief meets the requirements of

Anders v. California by presenting a professional evaluation of the record demonstrating why there

are no arguable grounds to be advanced. See Anders v. California, 386 U.S. 738, 744 (1967);
Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009); see also Penson v. Ohio,

488 U.S. 75 (1988).

               Ludlow received a copy of counsel’s brief and was advised of his right to examine

the appellate record and to file a pro se brief. See Anders, 386 U.S. at 744; Garner, 300 S.W.3d at

766. No pro se brief or other written response has been filed.

               We have reviewed the record, including appellate counsel’s brief, and find no

reversible error. See Anders, 386 U.S. at 744; Garner, 300 S.W.3d at 766; Bledsoe v. State,

178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). We agree with counsel that the record presents

no arguably meritorious grounds for review and the appeal is frivolous. Counsel’s motion to

withdraw is granted.

               However, we note that the judgment of conviction orders Ludlow to pay court costs

with a notation to “SEE ATTACHED BILL OF COST.” The attached “BILL OF COSTS” includes

court-appointed attorney’s fees in the amount of $500.00. A trial court’s authority to order a

defendant to repay the cost of court-appointed legal counsel is expressly conditioned on the court

determining that the defendant has the financial resources and ability to pay. Tex. Code Crim. Proc.

Ann. art. 26.05(g) (West Supp. 2010). The defendant’s financial resources and ability to pay are

explicit critical elements under article 26.05(g) that must be supported by the record evidence.

Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). When the evidence does not support

the order to pay attorney’s fees, the proper remedy is to delete the order. Mayer, 309 S.W.3d at 557.

               The record reflects that the trial court found Ludlow indigent on two occasions,

appointing counsel to represent him prior to trial and again on appeal. The court also granted



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Ludlow’s request for a free record on appeal. Once an accused is found to be indigent, he is

presumed to remain so through the proceedings absent proof of a material change in his

circumstances. Tex. Code Crim. Proc. Ann. art. 26.04(p) (West Supp. 2010); Mayer, 309 S.W.3d

at 557. Nothing in the record indicates a change in Ludlow’s financial circumstances. Further, the

record contains no determination by the trial court that Ludlow has the ability to pay attorney’s fees

and we find no factual basis in the record to support such a determination. We, therefore, modify

the judgment of conviction to order Ludlow to pay the court costs as reflected in the bill of

costs minus the $500.00 attributed to court-appointed attorney’s fees. See Boone v. State,

No. 03-10-00440-CR, 2011 WL 3250573, at *1 (Tex. App.—Austin July 28, 2011) (mem. op., not

designated for publication) (modifying judgment by deleting attorney’s fees from bill of costs before

affirming conviction in frivolous appeal under Anders).

               As modified, the judgment of conviction is affirmed.



                                               __________________________________________
                                               Melissa Goodwin, Justice

Before Justices Puryear, Rose and Goodwin

Modified and, as Modified, Affirmed

Filed: January 11, 2012

Do Not Publish

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