                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-12-00167-CR



       ALAN MICHAEL RODRIGUEZ, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 241st District Court
                 Smith County, Texas
             Trial Court No. 241-0867-12




       Before Morriss, C.J., Carter and Moseley, JJ.
         Memorandum Opinion by Justice Carter
                               MEMORANDUM OPINION
       In Smith County, Texas, Alan Michael Rodriguez was indicted on one count of engaging

in organized criminal activity. Rodriguez entered an open plea of guilty. The trial court, after

hearing argument regarding punishment, assessed a sentence of thirty-seven years’ confinement.

The trial court ordered Rodriguez to pay court costs of $574.00, which included $300.00 for

attorney’s fees.

       On appeal, Rodriguez argues that the trial court erred in assessing attorney’s fees because

he was indigent. To its credit, the State agrees with Rodriguez.

       Article 26.05 of the Texas Code of Criminal Procedure provides that the costs of

appointed counsel may be imposed against a defendant if the court finds that the defendant “has

financial resources that enable him to offset in part or in whole the costs of the legal services

provided.” TEX. CODE CRIM. PROC. ANN. art 26.05(g) (West Supp. 2012). Where the record

fails to establish and support a defendant’s financial ability, a trial court errs if it orders the

reimbursement of attorney’s fees. Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010).




                                                2
        Because he was indigent, the trial court appointed counsel for Rodriguez. The record

does not reflect a change in Rodriguez’s indigent status. There is also no evidence in the record

of Rodriguez’s ability to pay any or all of the costs for his appointed counsel. Therefore, the trial

court erred in assessing $574.00 in costs, and we modify the judgment to correctly reflect a total

of $274.00 in court costs. 1 See TEX. R. APP. P. 43.2(b).

        We affirm the judgment, as modified.



                                                           Jack Carter
                                                           Justice

Date Submitted:          January 30, 2013
Date Decided:            January 31, 2013

Do Not Publish




1
Rodriguez remains liable for other administrative costs incurred. Williams v. State, 332 S.W.3d 694, 700 (Tex.
App.—Amarillo 2001, pet. denied).
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