                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                 ________________________

                                      No. 07-12-00451-CR
                                 ________________________

                                 VICTOR PEREZ, APPELLANT

                                                 V.

                             THE STATE OF TEXAS, APPELLEE



                             On Appeal from the 108th District Court
                                      Potter County, Texas
              Trial Court No. 59,609-E; Honorable Douglas R. Woodburn, Presiding


                                           May 23, 2014

                               MEMORANDUM OPINION
                      Before CAMPBELL and HANCOCK and PIRTLE, JJ.


      Following the revocation of a prior order deferring an adjudication of guilt,

Appellant, Victor Perez, was found guilty of the first-degree felony offense of aggravated

robbery1 and sentenced to fifteen years confinement. By three issues, he challenges

(1) the final judgment adjudicating his guilt as being erroneous because it describes the

deadly weapon used as a “firearm,” when the indictment alleged the use or exhibition of

a BB gun, (2) the sufficiency of the evidence to sustain attorney’s fees, and (3) the

sufficiency of the evidence to support the assessment of a “Time Payment Fee.” By its
      1
          TEX. PENAL CODE ANN. § 29.03 (West 2011).
brief, the State agrees with Appellant as to issue one but disagrees as to issues two and

three. We reform the judgment, and as reformed, affirm.


                                     BACKGROUND


      On April 16, 2009, Appellant was indicted for the offense of aggravated robbery,

allegedly committed by the use or exhibition of a deadly weapon, namely a BB gun,

while in the course of committing robbery. On May 17, 2011, pursuant to an open plea

without an agreed recommendation on punishment, adjudication was deferred, and he

was placed on community supervision for ten years and assessed a $2,500 fine. Less

than a year later, the State moved to proceed with an adjudication of guilt, alleging

Appellant had committed the new offense of driving while intoxicated. At a hearing on

the State’s motion held October 3, 2012, Appellant entered a plea of true. After hearing

testimony, the trial court found Appellant had violated the terms and conditions of his

community supervision and revoked his deferred adjudication.        The trial court then

proceeded to enter a judgment adjudicating Appellant guilty of the deferred offense and

assessed a fifteen-year sentence.


ISSUE ONE


      Appellant asserts, and the State agrees, that the Judgment Adjudicating Guilt

incorrectly reflects “YES, A FIREARM” in the summary portion of the judgment under

the heading Findings on Deadly Weapon. The Judgment also inaccurately recites on

page 2 under the heading Furthermore, the following special findings or orders apply:

“The Court finds that the deadly weapon was a firearm.” This Court has the power to

modify the judgment of the court below to make the record speak the truth when we

                                            2
have the necessary information to do so. See Ramirez v. State, 336 S.W.3d 846, 852

(Tex. App.—Amarillo 2011, pet. ref'd) (citing Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.

Crim. App. 1993)). See also Cobb v. State, 95 S.W.3d 664, 668 (Tex. App.—Houston

[1st Dist.] 2002, no pet.). Appellate courts have the power to reform whatever the trial

court could have corrected by a judgment nunc pro tunc where the evidence necessary

to correct the judgment appears in the record. Ashberry v. State, 813 S.W.2d 526, 529

(Tex. App.—Dallas 1991, pet. ref'd).      Based on the record before us, issue one is

sustained, and we reform the judgment to properly recite in the summary portion “Yes,

Not A Firearm,” and on page 2 to recite “The Court finds that the deadly weapon was

not a firearm.”


ISSUE TWO


       By his second issue, Appellant maintains the evidence is insufficient to sustain

the assessment of attorney’s fees in the amount of $100. The Bill of Cost generated

October 5, 2012, two days after Appellant was sentenced, reflects “Attorney Fee(s) -

Original Plea Agreement. CCP 26.05 100.00.” At the time this case was originally

briefed, the Texas Court of Criminal Appeals had not issued its opinion in Wiley v. State,

410 S.W.3d 313 (Tex. Crim. App. 2013), nor had this Court issued its opinion in Riles v.

State, 417 S.W.3d 616 (Tex. App. 2013, pet. granted April 2, 2014). In Wiley, 410

S.W.3d at 320-21, the Court of Criminal Appeals, relying on its decision in Manuel v.

State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999), held the appellant had

procedurally defaulted his claim that the record did not support an order to reimburse

the county for court-appointed attorney’s fees by failing to appeal that particular issue at

the time he was placed on community supervision. In Riley, this Court reached a similar

                                             3
conclusion. See also Perez v. State, 424 S.W.3d 81, 85-86 (Tex. Crim. App. 2014)

(holding that failure to appeal from the imposition of deferred adjudication waived any

subsequent challenge to the imposition of court costs assessed in the original

proceeding).       Therefore, on the face of the Bill of Costs, Appellant would be

procedurally barred from contesting those fees.


        Appellant, however, maintains that the Bill of Costs contains a clerical error and

that the $100 at issue reflects attorney fees actually incurred in connection with the

revocation proceeding.2 Appellant notes that the record contains a Bill of Costs, dated

May 17, 2011, the date of the original proceeding placing Appellant on deferred

adjudication, which provides “Attorney Fees (Court Appointed) [Blank].”


        In response, the State questions whether the trial court actually ordered

repayment of court-appointed attorney’s fees because on October 10, 2012, the court

signed an Order to Withdraw Funds reflecting the amount of $70 as the amount of court

costs assessed.3 Assuming the Bill of Costs was in error, the State further contends the

trial court’s order is nevertheless justified because Appellant was represented by

retained counsel throughout most of the underlying proceeding, including the final

revocation hearing. Based on the record, we agree with Appellant that the Bill of Costs

incorrectly reflects that the attorney’s fees were assessed in conjunction with the

original proceeding, and we find those fees were in fact assessed in connection with the

        2
          In that regard, we note the record does contain an Attorney Fee Voucher signed April 30, 2012,
awarding Mike Watkins the sum of $100. The voucher describes the services rendered in the case as:
“Open file, review DA case file, attempt to locate client - review of new offense.” The State’s Motion to
Proceed With Adjudication of Guilt was filed February 23, 2012, and Watkins was appointed March 21,
2012.
        3
         In his reply brief in support of his third issue, Appellant refutes that the trial court excluded the
sum of $100 attorney’s fees in the Order to Withdraw Funds.

                                                      4
revocation proceeding. Accordingly, we find Wiley and Riles to be inapposite, and we

conclude the $100 line item for court-appointed attorney’s fees is properly before this

Court to determine whether Appellant is required to repay them.


      It is well established that in order to assess court-appointed attorney’s fees in a

judgment, a trial court must determine that the defendant has financial resources that

enable him to offset in part or in whole the costs of the legal services provided. See

TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2013); Mayer v. State, 309

S.W.3d 552, 555-56 (Tex. Crim. App. 2010). See also TEX. CODE CRIM. PROC. ANN. art.

26.04(m) (West Supp. 2013).       Not only must the trial court make a determination

regarding the defendant’s ability to pay, the record must reflect some factual basis to

support that determination. See Wolfe v. State, 377 S.W.3d 141, 144 (Tex. App.—

Amarillo 2012, no pet.).    Additionally, a defendant who is found to be indigent is

presumed to remain indigent for the remainder of the proceedings unless a material

change in the defendant’s financial circumstances occurs. If a material change occurs,

the State may move for reconsideration of the defendant’s financial status. See TEX.

CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2013).


      Here, the State’s argument that Appellant is liable for court-appointed attorney’s

fees because he was ultimately represented by retained counsel in the original

proceeding does not satisfy the requirement of establishing a “material change in the

defendant’s financial circumstances” in the revocation proceeding. The record before

us does not reflect a factual basis to support a determination that Appellant himself paid

for his retained counsel or had the present financial resources to offset the cost of his

legal representation.   To the contrary, the presumption that Appellant is indigent is

                                            5
supported by the trial court’s order granting him a free appellate record based on his

most recent financial information form.          Additionally, the State did not move to

reconsider Appellant’s financial status. Under these circumstances, we decline to hold

that a defendant’s use of retained counsel preempts his indigent status. Issue two is

sustained.


ISSUE THREE


       By his third issue, Appellant contends the evidence is insufficient to support a

“Time Payment Fee” of $25. We disagree.


       In his brief, Appellant describes this issue as an issue of “first impression.”

However, since he filed his brief, at least one appellate court has written on the merits of

the time payment fee. See Davis v. State, No. 04-13-00413-CR, 2013 Tex. App. LEXIS

13659, at *2 (Tex. App.—San Antonio Nov. 6, 2013, no pet.) (mem. op., not designated

for publication).


       Section 133.103(a) of the Texas Local Government Code (West Supp. 2013)

mandates that a person convicted of a felony shall pay a $25 fee if that person pays any

part of a fine, court costs or restitution on or after the 31st day after the date on which

judgment was entered. In the underlying case, judgment was entered on October 3,

2012, and the 31st day fell on Saturday, November 3, 2012. The Bill of Costs dated

October 5, 2012, shows a total balance of $420 in costs and fees. Once the sum of

$100 for improperly assessed court-appointed attorney’s fees is deducted, the correct

total would be $320. The Bill of Costs also shows a payment of $250, therefore there

remains a balance of $70.

                                             6
      Appellant argues that because 31 days had not passed since the judgment was

entered, and he could have paid the balance within that 31 day period, the record does

not support assessment of the $25 time payment fee. In his reply brief, he asserts the

Order to Withdraw Funds signed a week after judgment “entails deleting the premature

Time Payment Fee and refunding the appellant $55 . . . .”          Appellant’s argument

presupposes he would have paid the entire balance within the time allotted by section

133.103(a)(2). The record clearly does not support his argument. Accordingly, we

conclude the $25 time payment fee was properly assessed. See Davis, 2013 Tex. App.

LEXIS 13659, at *2.    Furthermore, because the time payment fee is a legislatively

mandated court cost, it is not subject to an evidentiary sufficiency challenge. Johnson

v. State, 423 S.W.3d 385, 389-390 (Tex. Crim. App. 2014). Issue three is overruled.


                                      CONCLUSION


      We reform the Judgment Adjudicating Guilt to show under Findings on Deadly

Weapon “Yes, Not A Firearm.” We also reform page 2 of the judgment to recite under

the heading Furthermore, the following special findings or orders apply: “The Court

finds that the deadly weapon was not a firearm.”       The Bill of Costs generated on

October 5, 2012, is reformed to delete the amount of $100 for court-appointed

attorney’s fees. Because the Order to Withdraw Funds signed on October 10th reflects

the correct balance of $70, it need not be corrected. As reformed, the trial court’s

Judgment Adjudicating Guilt is affirmed.


                                               Patrick A. Pirtle
                                                   Justice


Do not publish.
                                           7
