                              Fourth Court of Appeals
                                     San Antonio, Texas
                                             OPINION
                                        No. 04-13-00029-CR

                                  Horacio Fidencio BENAVIDEZ,
                                             Appellant

                                                 v.
                                             The State of
                                        The STATE of Texas,
                                              Appellee

                      From the 218th Judicial District Court, Frio County, Texas
                                 Trial Court No. 10-11-00132-CRF
                              Honorable Stella Saxon, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: February 5, 2014

AFFIRMED; MOTION TO WITHDRAW GRANTED

           Horacio Fidencio Benavidez was indicted for three counts of aggravated sexual assault of

a child. Benavidez pled nolo contendere to each count in the indictment. The trial court held a

sentencing hearing, assessed punishment at forty years’ imprisonment for each count, and ordered

the sentences to run concurrently. The trial court signed a separate judgment for each count.

Benavidez appealed.
                                                                                                        04-13-00029-CR


                                             APPEAL ON THE MERITS

         Benavidez’s court-appointed appellate counsel has filed a brief stating that he has

conducted a thorough examination of the record and researched the law, and he cannot find any

ground of error that supports a legitimate argument for reversal. Counsel analyzes one potential

ground of error, but ultimately concludes that this appeal is wholly frivolous and without merit.

See Anders v. California, 386 U.S. 738 (1967); High v. State, 573 S.W.2d 807 (Tex. Crim. App.

1978). Counsel represents that Benavidez was provided with a copy of the brief, and was informed

of his right to review the record and file his own brief. See Bruns v. State, 924 S.W.3d 176, 177

n.1 (Tex. App.—San Antonio 1996, no pet.). Counsel has filed a motion to withdraw. Benavidez

has not filed a pro se brief.

         We have reviewed counsel’s brief and the record. We conclude this appeal is frivolous and

without merit. We affirm the trial court’s judgments, and grant counsel’s motion to withdraw. 1 See

Nichols v. State, 954 S.W.2d 83, 85-86 (Tex. App.—San Antonio 1997, no pet.); id.

                                                ATTORNEY’S FEES

         The district clerk has filed a supplemental record containing a certified bill of costs. See

TEX. CODE CRIM. PROC. ANN. art. 103.006 (West 2006) (providing that if a criminal action is

appealed, an officer of the court shall certify and sign a bill of costs stating the costs that have

accrued and send the bill of costs to the appellate court). Although the trial court’s judgments do

not expressly order Benavidez to pay court-appointed attorney’s fees, the certified bill of costs



1
 No substitute counsel will be appointed. Should Benavidez wish to seek further review of this case by the Texas
Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review or file a pro se
petition for discretionary review. Any petition for discretionary review must be filed within thirty days from the later
of (1) the date of this opinion; or (2) the date the last timely motion for rehearing is overruled by this court. See TEX.
R. APP. P. 68.2. Any petition for discretionary review must be filed in the Court of Criminal Appeals. See TEX. R. APP.
P. 68.3. Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules
of Appellate Procedure. See TEX. R. APP. P. 68.4.


                                                          -2-
                                                                                         04-13-00029-CR


shows that Benavidez accrued $2000.00 in attorney’s fees in this case. The Texas Court of

Criminal Appeals has stated that “attorney’s fees as set forth in a certified bill of costs are effective

whether or not incorporated by reference in the written judgment.” Armstrong v. State, 340 S.W.3d

759, 767 (Tex. Crim. App. 2011).

        The record shows the trial court found Benavidez to be indigent and appointed appellate

counsel to represent him. “A defendant who is determined by the court to be indigent is presumed

to remain indigent for the remainder of the proceedings in the case unless a material change in the

defendant’s financial circumstances occurs.” TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West

2009); see Fulmer v. State, 401 S.W.3d 305, 318-19 (Tex. App.—San Antonio 2013, pet. ref’d)

(holding the trial court erred in ordering an indigent criminal defendant to pay court-appointed

attorney’s fees when there was no evidence of a material change in his financial circumstances).

Here, nothing in the record shows a material change in Benavidez’s financial circumstances since

counsel was appointed to represent him. Absent a showing of a material change in Benavidez’s

financial circumstances, it was error for the district clerk to assess attorney’s fees against him in

the bill of costs.

        Because the assessment of attorney’s fees against Benavidez was erroneous, it must be

corrected. Accordingly, we order the district clerk to delete the $2,000.00 in attorney’s fees from

the bill of costs, and to prepare and file a corrected bill of costs in this case. See Green v. State,

No. 04-13-00018-CR, 2013 WL 6200328, at *2 (Tex. App.—San Antonio Nov. 27, 2013, no pet.)

(mem. op., not designated for publication) (reforming both the judgment and the bill of costs to

delete the assessment of attorney’s fees against an indigent criminal defendant).

                                                    Karen Angelini, Justice


Publish


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