                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-13-00291-CR

JOSEPH ROBERT MCELWAIN, JR.,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                           From the 249th District Court
                              Johnson County, Texas
                              Trial Court No. F46929


                             DISSENTING OPINION


      In the instant case, the majority has concluded that there is an arguable ground

for appeal regarding the trial court’s assessment of appellant’s court-appointed

attorney’s fees. Relying on this Court’s decision in Evans v. State, the majority believes

that we should abate and remand the matter to the trial court for the appointment of

new counsel to address the attorney’s fees issue. See 933 S.W.2d 334, 335-36 (Tex.

App.—Waco 1996, order) (per curiam). Because I believe that such a course of action is
a waste of judicial resources, and because I question the rationale in the Evans decision,

I respectfully dissent.

            I.      THE TRIAL COURT’S ASSESSMENT OF APPELLANT’S COURT-APPOINTED
                                           ATTORNEY’S FEES

        At the outset, I recognize that the majority is correct in questioning the trial

court’s assessment of appellant’s court-appointed attorney’s fees when the record

clearly demonstrates that appellant is indigent. For purposes of assessing attorney’s

fees, once an accused is found to be indigent, he is presumed to remain so throughout

the proceedings absent proof of a material change in his circumstances. See TEX. CODE

CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2013); Mayer v. State, 309 S.W.3d 552, 557

(Tex. Crim. App. 2010); see also Mayer v. State, No. 10-10-00302-CR, 2011 Tex. App.

LEXIS 1369, at *5 (Tex. App.—Waco Feb. 23, 2011, pet. ref’d). Furthermore, the record

must reflect some factual basis to support the determination that appellant was capable

of paying all or some of his attorney’s fees at the time of the judgment. See TEX. CODE

CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2013); Barrera v. State, 291 S.W.3d 515, 518

(Tex. App.—Amarillo 2009, no pet.); see also Stevenson v. State, No. 10-09-00358-CR, 2011

Tex. App. LEXIS 8302, at *3 (Tex. App.—Waco Oct. 19, 2011, no pet.) (mem. op., not

designated for publication).

        Here, the trial court appointed appellate counsel after appellant testified at the

arraignment that he does not have any property or money to hire an attorney. 1 The


        1Appellant filed a pro se affidavit of indigence on July 31, 2013, two weeks after the trial court
signed the judgment of conviction in this case. In his affidavit, appellant requested that the trial court
appoint him counsel to handle his appeal. The trial court found that appellant was indigent and
appointed appellate counsel to handle appellant’s appeal.

McElwain v. State                                                                                  Page 2
record does not indicate a material change in appellant’s financial situation. However,

in its judgment, the trial court assessed $1,796 in court costs, which, as reflected in the

bill of costs, included a $1,500 reimbursement of appellant’s court-appointed attorney’s

fees. Because the record reflects that appellant has been indigent through the duration

of this case, there is insufficient evidence in the record to support the assessment of

appellant’s court-appointed attorney’s fees. See Mayer, 309 S.W.3d at 557; see also Willis

v. State, No. 10-09-00420-CR, 2010 Tex. App. LEXIS 8255, at *2 (Tex. App.—Waco Oct.

13, 2010, no pet.) (mem. op., not designated for publication) (“If the State fails to present

evidence that the defendant is able to pay all or part of his court-appointed attorney’s

fees, then the trial court commits error by assessing any part of those fees as costs of

court.”). In such cases, the proper remedy is to reform the judgment by deleting the

attorney’s fees.2 See Mayer, 309 S.W.3d at 557; see also Moten v. State, No. 10-12-00027-

CR, 2012 Tex. App. LEXIS 9541, at *22 (Tex. App.—Waco Nov. 15, 2012, pet. ref’d). But,

to complicate matters further, appellant’s appellate counsel has filed a motion to

withdraw and an accompanying Anders brief, arguing that this is a frivolous appeal—a

contention from which the majority disagrees.                       Nevertheless, the crux of my

disagreement with the majority centers on whether we can reform a judgment and

affirm the judgment as modified in Anders cases.




         2 In addition, it is worth noting that, unlike Wiley v. State, this case does not involve a deferred-

adjudication order. See 410 S.W.3d 313 (Tex. Crim. App. Sept. 25, 2013) (concluding that a defendant
procedurally defaults on his claim that the record does not support the trial court’s assessment of court-
appointed attorney’s fees during the initial guilty-plea proceedings when he fails to bring a direct appeal
from the initial judgment); see also Richards v. State, No. 10-12-00252-CR, 2013 Tex. App. LEXIS 14302, at
**1-9 (Tex. App.—Waco Nov. 21, 2013, no pet.) (mem. op., not designated for publication).

McElwain v. State                                                                                      Page 3
                                    II.    THE EVANS OPINION

       In Evans, a 1996 opinion, this Court held that an appeal is not frivolous if a

defendant is entitled to any relief from an appellate court, which includes reformation

of a judgment. However, as I noted in Ferguson v. State, No. 10-13-00173-CR, __ S.W.3d

__, 2014 Tex. App. LEXIS ____ (Tex. App.—Waco March 6, 2014), numerous Texas

courts have held to the contrary: that appellate courts have the authority to reform

judgments and affirm as modified in cases where there is non-reversible error. See Bray

v. State, 179 S.W.3d 725, 729-30 (Tex. App.—Fort Worth 2005, no pet.) (reforming the

trial court’s judgment in an Anders case because abatement “would require the trial

court to do a useless task—appoint counsel to raise an issue of law that we have

previously ruled on . . .” and affirming the judgment as modified); Getts v. State, 155

S.W.3d 153, 154 (Tex. Crim. App. 2005) (affirming a court of appeals’ reformation of the

trial court’s judgment in an Anders case); see also R.J.O. v. Tex. Dep’t of Family & Protective

Servs., No. 03-13-00478-CV, 2013 Tex. App. LEXIS 13874, at **4-5 & n.3 (Tex. App.—

Austin Nov. 13, 2013, no pet.) (mem. op.) (reforming the trial court’s final decree to

remove a statutory ground for termination and affirming the judgment as modified in

an Anders case); Sheddan v. State, No. 12-12-00391-CR, 2013 Tex. App. LEXIS 8197, at **3-

5 (Tex. App.—Tyler July 3, 2013, no pet.) (mem. op., not designated for publication)

(reforming the trial court’s judgment to reflect that appellant pleaded “true” to an

enhancement paragraph and the trial court found the enhancement paragraph to be

“true” and affirming the judgment as modified in an Anders case); Thomas v. State, No.

13-12-00283-CR, 2012 Tex. App. LEXIS 10550, at **4-5 (Tex. App.—Corpus Christi Dec.

McElwain v. State                                                                        Page 4
20, 2012, no pet.) (mem. op., not designated for publication) (deleting a $500 fine from

appellant’s administrative fees and affirming the judgment as modified in an Anders

case); McBreen v. State, Nos. 05-03-01424-CR, 05-03-01425-CR, 2005 Tex. App. LEXIS

9524, at **10-11 (Tex. App.—Dallas Nov. 14, 2005, no pet.) (mem. op., not designated for

publication) (modifying the trial court’s written judgment to reflect the sentence orally

pronounced and affirming the judgment as modified in an Anders case); Burnett v. State,

No. 06-00-00147-CR, 2001 Tex. App. LEXIS 714, at **4-5 (Tex. App.—Texarkana Feb. 1,

2001, no pet.) (mem. op., not designated for publication) (reforming the trial court’s

judgment to delete a condition of parole and affirming the judgment as modified in an

Anders case); Adams v. State, No. 14-97-00553-CR, 1999 Tex. App. LEXIS 1872, at **4-5

(Tex. App.—Houston [14th Dist.] Mar. 18, 1999, no pet.) (mem. op., not designated for

publication) (reforming the judgment to reflect that appellant was convicted of a third-

degree felony, rather than a second-degree felony, noting that this error “does not

entitle appellant to reversal of his conviction,” and affirming the judgment as modified

in an Anders case).

       I have not found any cases following the rationale articulated in Evans.

Moreover, the Texas Court of Criminal Appeals has stated that “the law does not

compel us to require courts to perform useless tasks.” Homan v. Hughes, 708 S.W.2d 449,

454 (Tex. Crim. App. 1986).      And after conducting a full examination of all the

proceedings, see Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 349-50, 102 L. Ed. 2d 300

(1988), it is clear that all of the court-appointed attorney’s fees imposed against

appellant should be deleted from the judgment. See Mayer, 309 S.W.3d at 557; see also

McElwain v. State                                                                    Page 5
Moten, 2012 Tex. App. LEXIS 9541, at *22. Accordingly, I do not believe that abatement

is necessary because it would amount to ordering the trial court to do a useless task that

this Court is already authorized to do:      reform the judgment to delete the court-

appointed attorney’s fees and affirm the judgment as modified. See Mayer, 309 S.W.3d

at 557; Homan, 708 S.W.2d at 454; Bray, 179 S.W.3d at 729-30; see also Moten, 2012 Tex.

App. LEXIS 9541, at *22. Therefore, in the interest of judicial economy, I would simply

reform the trial court’s judgment to eliminate the court-appointed attorney’s fees and

affirm the judgment as modified. See TEX. R. APP. P. 43.2(b); Pfeiffer v. State, 363 S.W.3d

594, 599 (Tex. Crim. App. 2012) (observing that “when a defendant appeals his

conviction, the courts of appeals have the jurisdiction to address any error in that

case”); Martin, 335 S.W.3d at 873; French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App.

1992) (stating that an appellate court has authority to reform a judgment to include an

affirmative finding to make the record speak the truth when the matter has been called

to its attention by any source); see also Romero v. State, No. 13-13-00270-CR, 2013 Tex.

App. LEXIS 15198, at *5 (Tex. App.—Corpus Christi Dec. 19, 2013, no pet. h.) (mem. op.,

not designated for publication) (“Appellate courts may modify the trial court’s

judgment to make the record speak the truth when we have the necessary information

to do so, even in cases where appellant’s counsel files an Anders brief.”). And to the

extent that Evans requires abatement in circumstances such as this, I would overrule the

case. See 933 S.W.2d at 344.




McElwain v. State                                                                    Page 6
                                              AL SCOGGINS
                                              Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Dissenting opinion delivered and filed March 6, 2014
Publish




McElwain v. State                                           Page 7
