       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                     NO. 03-19-00761-CR


                                Jacob Joseph Romo, Appellant

                                                v.

                                 The State of Texas, Appellee




             FROM THE 119TH DISTRICT COURT OF TOM GREEN COUNTY
       NO. B-17-0417-SA, THE HONORABLE BEN WOODWARD, JUDGE PRESIDING



                           MEMORANDUM OPINION


               Jacob Joseph Romo appeals the assessment of court-appointed attorney’s fees and

a jury-reimbursement fee as court costs when the district court adjudicated his guilt in 2019. We

will modify the judgment adjudicating guilt and affirm it as modified.

               Romo was charged with the state-jail-felony offense of burglary of a building,

committed in 2016; pled guilty to that offense; and was placed on two years’ deferred-

adjudication community supervision in 2017. See Tex. Penal Code § 30.02(a)(1) (defining

offense of burglary), (c)(1) (providing that offense is state-jail felony if committed in building

other than habitation); Tex. Code Crim. Proc. art. 42A.101 (addressing deferred-adjudication

community supervision). Romo’s community-supervision term was extended by three years in

lieu of revocation. The State subsequently filed a “Motion to Revoke Deferred Adjudication

Probation and to Proceed to Adjudicate Guilt,” alleging that he violated his community
supervision when he was arrested for public intoxication. See Tex. Code Crim. Proc. art.

42A.751 (addressing detention and hearing after violation of community supervision). Romo

pled “true” to three of the violation paragraphs in the motion to revoke.

               At the hearing on the motion to revoke, the district court heard testimony from

three community-supervision officers and Romo. One of the community-supervision officers

stated that Romo’s community supervision was transferred to another county for a job

opportunity and noted that Romo made the monthly payments required by his community

supervision terms. Romo testified that his work involved welding battery tanks in the oil field

six days a week, for eleven to twelve hours a day, and that “[i]t was a good paying job.” Romo’s

earnings were unspecified. However, the record reflects that he lost this job when he was

arrested for public intoxication and that he had that job for only three or four months.

               At the conclusion of evidence, the district court revoked Romo’s community

supervision, adjudicated his guilt for the burglary offense, and sentenced him to 545 days in the

state-jail division of the Texas Department of Criminal Justice. See id. art. 42A.755 (addressing

revocation of community supervision); Tex. Penal Code § 12.35 (providing punishment range of

180 days to two years’ imprisonment for state-jail felony offense). The judgment adjudicating

guilt incorporated the assessed court costs, including $750.00 for court-appointed attorney’s fees

and a $4.00 jury-reimbursement fee. Romo had court-appointed counsel at all stages of the case:

before trial, for the motion to revoke, and on appeal. He received a free record.

               Given his indigent status, Romo contends that the district court improperly

assessed the court-appointed attorney’s fees and jury-reimbursement fee against him.1         We


       1
          Romo’s appellate issues relate only to the court costs assessed for court-appointed
attorney’s fees and the jury-reimbursement fee. Recitation of the facts underlying Romo’s
                                                 2
address only Romo’s challenge to the assessment of the attorney’s fees and jury-reimbursement

fee ordered with the 2019 judgment adjudicating guilt,2 which we will modify and affirm as

modified.

                                         DISCUSSION


Court-Appointed Attorney’s Fees

               In his first issue, Romo contends that the district court improperly assessed

$750.00 for court-appointed attorney’s fees against him. Romo notes that his indigent status

never changed during his case.

               We construe this issue as a complaint about the sufficiency of the evidence

supporting the district court’s judgment adjudicating guilt incorporating the assessed $750.00 for

court-appointed attorney’s fees.    A complaint about the sufficiency of evidence as to a

defendant’s financial resources and ability to pay are not waived when, as here, there is no such



adjudication of guilt is unnecessary to our disposition of these issues. See Tex. R. App. P. 47.1
(requiring issuance of opinion that is brief as possible but addresses every issue raised and
necessary to final disposition of appeal).
       2
           Romo cannot appeal these costs as to his 2017 deferred-adjudication judgment.
Although those fees could have been challenged on appeal from the imposition of community
supervision, Romo executed a waiver of his right to appeal that judgment when he pleaded
guilty. Thus, he has forfeited any challenge to the assessment of the attorney’s fees and jury-
reimbursement fee that were ordered in 2017 when his adjudication was deferred and he was
placed on community supervision. See Riles v. State, 452 S.W.3d 333, 338 (Tex. Crim. App.
2015) (holding that, by foregoing her initial appeal, defendant forfeited her complaint as to
attorney’s fee originally imposed when defendant was placed on deferred adjudication); Perez v.
State, 424 S.W.3d 81, 85-86 (Tex. Crim. App. 2014) (“Appellant’s waiver of his right to appeal
does not excuse his failure to appeal the assessment of court costs at the time of the original
imposition of community supervision.”); Wiley v. State, 410 S.W.3d 313, 318 (Tex. Crim. App.
2013) (concluding that defendant forfeited complaint as to sufficiency of evidence supporting
attorney’s fees imposed when his community supervision was ordered because defendant failed
to present that complaint in direct appeal from order originally imposing community
supervision).
                                                3
complaint raised before the trial court. See Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim.

App. 2010). We evaluate the sufficiency of the evidence by viewing all the record evidence in

the light most favorable to the trial court’s ruling. See id. at 557.

               Article 26.05(g) of the Code of Criminal Procedure addresses the compensation of

appointed counsel, providing that a defendant may be ordered to repay costs of court-appointed

legal counsel that the trial court finds the defendant can pay:


       If the judge determines that a defendant has financial resources that enable the
       defendant to offset in part or in whole the costs of the legal services provided to
       the defendant in accordance with Article 1.0151(c) or (d) [discussing
       circumstances entitling defendant to appointment of counsel], including any
       expenses and costs, the judge shall order the defendant to pay during the
       pendency of the charges or, if convicted, as court costs the amount that the judge
       finds the defendant is able to pay. A trial judge has the authority to order a
       defendant to repay costs of court-appointed legal counsel that the court finds the
       defendant is able to pay.


Tex. Code Crim. Proc. art. 26.05(g). Thus, “the defendant’s financial resources and ability to

pay are explicit critical elements in the trial court’s determination of the propriety of ordering

reimbursement of costs and fees.” Mayer, 309 S.W.3d at 556 (citing Tex. Code Crim. Proc. art.

26.05(g)). “Article 26.05(g) requires a present determination of financial resources and does not

allow speculation about possible future resources.” Cates v. State, 402 S.W.3d 250, 252 (Tex.

Crim. App. 2013). Further, “[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. art. 26.04(p);

Mayer, 309 S.W.3d at 557; see Cates, 402 S.W.3d at 251-52 (concluding that because trial court

had determined that defendant was indigent and because there was no subsequent finding that



                                                   4
defendant was able to repay any amount of costs of his court-appointed legal counsel, record

lacked factual basis to support determination that defendant could pay those assessed fees).

               Here, the record contains insufficient evidence of Romo’s financial circumstances

and his ability to pay the assessed attorney’s fees. Although there was testimony that Romo

made monthly payments required by his community-supervision terms and that he had a “good

paying job” as a welder, there was no evidence in the record about how much he earned from

that work.   More importantly, the record reflects that Romo lost his job after the public-

intoxication arrest and after he held that job for only three or four months.

               As we have noted, the district court provided Romo with appointed counsel

before trial, for the motion to revoke, and on appeal, and Romo received a free appellate record.

Significantly, the record contains no evidence or court finding showing that Romo’s indigent

status had changed. See Cates, 402 S.W.3d at 251-52; Mayer, 309 S.W.3d at 557. Further,

nothing in the record shows that the district court made any “present determination of [Romo’s]

financial resources” and ability to pay his court-appointed attorney’s fees when the court

adjudicated Romo’s guilt. Cf. Tex. Code Crim. Proc. art. 26.05(g) (authorizing trial judge to

order defendant to repay costs of court-appointed legal counsel that court finds defendant has

ability to pay); see Cates, 402 S.W.3d at 252. In this context, the proper remedy is to delete the

court-appointed attorney’s fees from the assessment of costs. See Cates, 402 S.W.3d at 252.

               Accordingly, we sustain Romo’s first issue and modify the judgment adjudicating

guilt, which incorporates the assessed court costs, to delete the $750.00 cost for court-appointed

attorney’s fees.




                                                  5
Jury-Reimbursement Fee

               In his second issue, Romo contends that the district court improperly assessed a

$4.00 jury-reimbursement fee against him. He notes that a jury was never called or empaneled

for any matter on his case and states that the jury-reimbursement fee “is a fee for a service never

rendered.” However, assessment of this fee was required by statute and not dependent on

whether there was a jury in his criminal case.

               Former article 102.0045(a) of the Code of Criminal Procedure—applicable

because Romo’s burglary offense occurred before January 1, 20203—required that


       [a] person convicted of any offense, other than an offense relating to a pedestrian
       or the parking of a motor vehicle, shall pay as a court cost, in addition to all other
       costs, a fee of $4 to be used to reimburse counties for the cost of juror services as
       provided by Section 61.0015, Government Code.


Act of May 27, 2005, 79th Leg., R.S., ch. 1360, § 5, 2005 Tex. Gen. Laws 4255, 4256, repealed

by Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 1.19(2), 2019 Tex. Gen. Laws __, __; see

Tex. Gov’t Code § 61.0015 (addressing State’s reimbursements to counties). Texas courts have

determined that the jury-reimbursement fee is an appropriate cost even when a defendant pleads

guilty and no jury was summoned. See, e.g., Davila v. State, 441 S.W.3d 751, 763 (Tex. App.—

Houston [1st Dist.] 2014, pet. ref’d) (rejecting challenge to jury-reimbursement fee included as

court costs assessed against defendant after he pled guilty); Adams v. State, 431 S.W.3d 832, 838


       3
           The Texas Legislature repealed subsection 102.0045(a) of the Code of Criminal
Procedure effective January 1, 2020. See Act of May 23, 2019, 86th Leg., R.S., ch. 1352,
§ 1.19(2), 2019 Tex. Gen. Laws __, __. The prior law applies to Romo’s 2016 burglary offense.
See id. §§ 5.01 (providing that amendments apply only to fee on conviction for offense
committed on or after Act’s effective date, that offense committed before effective date is
governed by prior law, and that offense was committed before Act’s effective date if any element
of offense occurred before effective date), .04 (providing effective date of January 1, 2020).
                                                 6
(Tex. App.—Houston [14th Dist.] 2014, no pet.) (same); see also Scroggin v. State, No. 02-19-

00096-CR, 2020 Tex. App. LEXIS 860, at *5 (Tex. App.—Fort Worth Jan. 30, 2020, no pet.)

(mem. op., not designated for publication) (noting that under plain terms of subsection

102.0045(a), assessment of jury-reimbursement fee is not limited to defendant who was tried by

jury); Mason v. State, No. 14-18-00505-CR, 2019 Tex. App. LEXIS 6366, at *3 (Tex. App.—

Houston [14th Dist.] July 25, 2019, no pet.) (mem. op., not designated for publication) (noting

that “the jury reimbursement fee is an appropriate cost even if no jury was summoned”).

               Here, because Romo was convicted of the offense of burglary of a building and

because the jury-reimbursement fee was required for “any person convicted of any offense,” the

district court did not err by assessing the $4.00 jury-reimbursement fee against him. See former

Tex. Code Crim. Proc. art. 102.0045(a); Scroggin, 2020 Tex. App. LEXIS 860, at *5.

Accordingly, we overrule Romo’s second issue.


                                         CONCLUSION

               We modify the district court’s judgment adjudicating guilt, which incorporates the

assessed court costs, to delete the $750.00 cost for court-appointed attorney’s fees. We affirm

the district court’s judgment adjudicating guilt as modified.



                                              __________________________________________
                                              Gisela D. Triana, Justice

Before Chief Justice Rose, Justices Baker and Triana

Modified and as Modified, Affirmed

Filed: August 19, 2020

Do Not Publish

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