                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-10-00424-CR

LARRY RANDALL STEELE,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                           From the 278th District Court
                              Madison County, Texas
                              Trial Court No. 11,379


                           MEMORANDUM OPINION


       Larry Randall Steele was convicted in a bench trial of the offense of possession of

cocaine less than one gram. TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2010).

He was sentenced to two years confinement in a state jail facility. The trial court

assessed attorney’s fees in the judgment. In one issue, Steele challenges the sufficiency

of the evidence to support the trial court’s assessment of attorney’s fees. We modify the

trial court’s judgment, and affirm it as modified.
        For the purposes of assessing attorney's fees, once an accused is found to be

indigent, he is presumed to remain so through the proceedings absent proof of a

material change in his circumstances. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West

Supp. 2011); Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Watkins v. State,

333 S.W.3d 771, 782 (Tex. App.—Waco 2010, pet. ref’d). Accordingly if the defendant is

found to be indigent at the outset of trial, there must be some evidence presented to the

trial court of a change in financial circumstances before attorney's fees can be assessed

against the defendant. See Mayer, 309 S.W.3d at 553.

        In this case, Steele was found to be indigent prior to trial and was appointed trial

counsel. No evidence indicating a change in his financial circumstances was proffered

during the trial. Additionally, the trial court determined that Steele was indigent for

purposes of appeal, ordered the appointment of appellate counsel, and granted Steele a

free record on appeal on account of his indigence. The State agrees that there is no

evidence to support the trial court’s assessment of attorney’s fees. Accordingly, as the

presumption of indigence remains, we hold that the evidence is insufficient to support

the trial court's assessment of attorney’s fees. See TEX. CODE CRIM. PROC. ANN. art.

26.04(p) (West Supp. 2011); Mayer, 309 S.W.3d at 557; Watkins, 333 S.W.3d 771, 782.

        Steele’s sole issue is sustained.

        Having found the evidence to be insufficient, we modify the trial court's

judgment to delete the order to pay attorney's fees and order Steele to pay only the costs


Steele v. State                                                                       Page 2
of court in the amount of $280.00. See Mayer, 309 S.W.3d at 557. The trial court’s

judgment, as modified, is affirmed.




                                       TOM GRAY
                                       Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed as modified
Opinion delivered and filed December 7, 2011
Do not publish
[CR25]




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