                                    NO. 12-17-00276-CR

                              IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 TAMLA GAY GLOVER,                                 §      APPEAL FROM THE 294TH
 APPELLANT

 V.                                                §      JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                          §      VAN ZANDT COUNTY, TEXAS

                                    MEMORANDUM OPINION
       Tamla Gay Glover appeals the trial court’s judgment adjudicating her guilty of injury to an
elderly individual. In one issue, Appellant argues that the trial court erred by ordering her to
reimburse her court appointed attorney’s fees. We modify and affirm as modified.


                                          BACKGROUND
       Appellant was charged by indictment with injury to an elderly individual. Pursuant to a
plea bargain agreement with the State, Appellant pleaded “guilty” to the offense, and the trial court
deferred a finding of guilt, placed Appellant on community supervision for a term of four years,
and assessed a fine of $1,000.00.
       Subsequently, the State filed a motion to adjudicate Appellant’s guilt and revoke her
community supervision. Appellant pleaded “not true” to the allegation in the motion. After a
contested hearing, the trial court granted the State’s motion and assessed Appellant’s punishment
at imprisonment for six years. This appeal followed.


                                        ATTORNEY’S FEES
       In Appellant’s sole issue, she contends that the trial court erred by imposing attorney’s fees
after finding her indigent.
Standard of Review and Applicable Law
       The imposition of court costs upon a criminal defendant is a “nonpunitive recoupment of
the costs of judicial resources expended in connection with the trial of the case.” Johnson v. State
423 S.W.3d 385, 390 (Tex. Crim. App. 2014). When the imposition of court costs is challenged
on appeal, we review the assessment of costs to determine if there is a basis for the costs, not to
determine if sufficient evidence to prove each cost was offered at trial. Id.
       A trial court has the authority to assess attorney’s fees against a criminal defendant who
received court-appointed counsel if the court determines that the defendant has financial resources
to offset the fees in part or in whole. TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp.
2017). But once a criminal defendant has been determined to be indigent, he “is presumed to
remain indigent for the remainder of the proceedings unless a material change in his financial
circumstances occurs.” Id. art. 26.04(p) (West Supp. 2017). Before attorney’s fees may be
imposed, the trial court must make a determination supported by some factual basis in the record
that the defendant has the financial resources to enable him to offset in part or in whole the costs
of the legal services provided. See Johnson v. State, 405 S.W.3d 350, 354 (Tex. App.—Tyler
2013, no pet.). If the record does not show that the defendant’s financial circumstances materially
changed, there is no basis for the imposition of attorney’s fees. See TEX. CODE CRIM. PROC. ANN.
art. 26.04(p); Mayer v. State, 309 S.W.3d 552, 553, 557 (Tex. Crim. App. 2010); Johnson, 405
S.W.3d at 354.
       No objection is necessary to preserve a claim that there is no evidence of a defendant’s
ability to pay attorney’s fees. Mayer, 309 S.W.3d at 556. But where such a claim arises from an
order originally imposing community supervision, the defendant must bring it in a direct appeal
from that order or risk forfeiture. Wiley v. State, 410 S.W.3d 313, 318 (Tex. Crim. App. 2013).
The claim is forfeited if the defendant was aware of her obligation to pay the fees but did not bring
the claim in a direct appeal. Riles v. State, 452 S.W.3d 333, 337 (Tex. Crim. App. 2015).
Analysis
       Appellant argues that the trial court erred by imposing attorney’s fees against her without
evidence of her ability to pay them. She contends that we should modify the trial court’s judgment
and attached withdrawal order to delete the attorney’s fees. We agree only that the portion of the
attorney’s fees imposed when Appellant’s community supervision was revoked should be deleted.




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       The record shows that Appellant completed an affidavit of indigency at the outset of the
proceedings. Based on the affidavit, the trial court found that Appellant was indigent, but that she
had the financial resources to offset “in whole or in part”1 the cost of her legal services. The trial
court ordered Appellant to pay $50.00 per month for her court appointed attorney, beginning thirty
days after the order’s execution and without a stated end date.
       When Appellant was placed on community supervision, she was ordered to pay $690.00 in
attorney’s fees as a condition of community supervision. She was ordered to pay the attorney’s
fees, her fine, and her court costs combined at a rate of $50.00 per month. The final judgment
contains an order for “PRIOR Court appointed attorney reimbursement” in the amount of $182.40.
       Appellant was required to bring any claim arising from the order imposing community
supervision in a direct appeal from that order, if she was aware of her obligation to pay the fees.
See Wiley, 410 S.W.3d at 318; Riles, 452 S.W.3d at 337. The record shows that Appellant signed
a written statement of her conditions of community supervision, and therefore was aware of the
obligation. We conclude that Appellant forfeited this portion of her claim by failing to bring it in
a direct appeal from the order imposing community supervision. See id. Accordingly, we overrule
Appellant’s issue as it pertains to the prior attorney’s fees.
       When the State filed its motion to revoke and adjudicate, Appellant completed another
affidavit of indigency. The trial court again found her indigent and ordered her to pay $50.00 per
month for her court appointed attorney without a determination of what part of the attorney’s fees
she was able to pay or any end date for the payments. The final judgment contains an order for
“Court appointed attorney reimbursement” in the amount of $1,537.00. The attached order to
withdraw funds contains a finding that “the offender is unable to pay the court costs, fees, and/or
fines and/or restitution on this date,” but orders payments to be made from Appellant’s inmate
trust account for her court costs, including the $1,537.00 in attorney’s fees.
       Texas Code of Criminal Procedure 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). The trial court’s withdrawal order in this case
indicates it determined that Appellant was presently unable to pay any of her attorney’s fees.
Therefore, the trial court had no authority to assess new attorney’s fees against Appellant. See



       1
           The order does not specify what part of the cost Appellant was able to pay.


                                                          3
TEX. CODE CRIM. PROC. ANN. art. 26.05(g); Cates, 402 S.W.3d at 252. Accordingly, we sustain
Appellant’s issue as it pertains to the $1,537.00 in attorney’s fees.


                                                   DISPOSITION
         Having sustained in part and overruled in part Appellant’s sole issue, we modify the trial
court’s judgment and attached withdrawal order to delete the imposition of $1,537.00 in attorney’s
fees. We affirm the judgment as modified.

                                                                  GREG NEELEY
                                                                     Justice



Opinion delivered September 19, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        SEPTEMBER 19, 2018


                                         NO. 12-17-00276-CR


                                      TAMLA GAY GLOVER,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 294th District Court
                      of Van Zandt County, Texas (Tr.Ct.No. CR12-00439)

                       THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein, and the same being inspected, it is the opinion of the Court that the judgment and
withdrawal order of the trial court below should be modified and, as modified, affirmed.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
and withdrawal order of the court below be modified to delete the imposition of $1,537.00 in
attorney’s fees; and as modified, the trial court’s judgment is affirmed; and that this decision be
certified to the trial court below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
