                                     NO. 12-12-00245-CR

                           IN THE COURT OF APPEALS

             TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

THOMAS CLEVELAND SMITH,                                §             APPEAL FROM THE 7TH
APPELLANT

V.                                                     §             JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                               §            SMITH COUNTY, TEXAS

                                       MEMORANDUM OPINION
        Thomas Cleveland Smith appeals his conviction for aggravated assault. He raises one
issue on appeal relating to the imposition of court costs. We modify and affirm as modified.


                                                BACKGROUND
        Appellant was charged by indictment with the felony offense of aggravated assault.1 On
April 15, 2006, Appellant pleaded guilty to the offense and pleaded true to the deadly weapon
allegation. Appellant’s pleas of guilty and true were made without an agreement on punishment.
The trial court conducted the sentencing hearing on June 12, 2006. Ultimately, the trial court
assessed punishment at fifteen years of imprisonment, with no fine.
        The judgment of conviction assessed $558.00 in costs and was signed on July 3, 2006.2



        1
            See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011).
        2
           The Texas Court of Criminal Appeals granted Appellant’s request for an out-of-time appeal. Ex parte
Smith, No. AP-76815, 2012 WL 2133699 (Tex. Crim. App. June 13, 2012) (not designated for publication). Thus, this
appeal is properly before this court.
                     SUFFICIENCY OF THE EVIDENCE SUPPORTING COURT COSTS
        Appellant argues that the trial court erred by imposing court costs that were not supported
by the bill of costs and requests that those costs be deleted from the trial court’s judgment. After
Appellant filed his brief, the record was supplemented with a bill of costs. Accordingly, we
review Appellant’s issue as a challenge to the sufficiency of the evidence supporting court costs.
See Johnson v. State, No. 12-12-00289-CR, 2013 WL 3054994, at *2 (Tex. App.—Tyler June 19,
2013, no pet.) (permitting supplementation of record with bill of costs and conducting sufficiency
analysis).3
Standard of Review and Applicable Law
        A challenge to the sufficiency of the evidence supporting court costs is reviewable on
direct appeal in a criminal case. See Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App.
2011). We measure sufficiency by reviewing the record in the light most favorable to the award.
Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Cardenas v. State, No.
01-11-01123-CR, 2013 WL 1164365, at *6 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013, no
pet.) (not yet released for publication). Requiring a convicted defendant to pay court costs does
not alter the range of punishment, is authorized by statute, and is generally not conditioned on a
defendant’s ability to pay. See TEX. CODE CRIM. PROC. ANN. art. 42.16 (West 2006); Armstrong,
340 S.W.3d at 767; see also Johnson, 2013 WL 3054994, at *3.
        Some court costs, such as attorney’s fees, may not be assessed against a defendant if he was
found indigent because his indigence is presumed to continue throughout the remainder of the
proceedings ―unless a material change in [his] financial circumstances occurs.‖ See TEX. CODE
CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2012). If a trial court does not make a determination
that a defendant’s financial circumstances materially changed that is also supported by some
factual basis in the record, the evidence will be insufficient to impose attorney’s fees as court costs.
See TEX. CODE CRIM. PROC. ANN. arts. 26.04(p), 26.05(g) (West Supp. 2012); Mayer, 309 S.W.3d
at 553; Wolfe v. State, 377 S.W.3d 141, 144, 146 (Tex. App.—Amarillo 2012, no pet.).


        3
          Appellant contends that his right to due process was violated because the trial court’s assessment of court
costs was issued in such a way as to prevent him from being able to challenge whether the costs were correctly
assessed. Because the record was supplemented with a bill of costs, this argument is moot. See Ballinger v. State,
No. 12-12-00280-CR, 2013 WL 3054935, at *2 n.4 (Tex. App.–Tyler June 19, 2013, no pet.) (not yet released for
publication).
                                                         2
Discussion
         The judgment of conviction reflects that the trial court assessed $558.00 in court costs.
The supplemental clerk’s record shows that a bill of costs was filed on October 26, 2012 that
assessed $558.00 in court costs. We have reviewed each of the fees listed in the bill of costs.
Except for the item listed as ―SB7 ATTY FEE FOR 7TH DISTRICT COURT,‖ all other costs and
fees are authorized by statute.
         The State concedes that the imposition of the attorney’s fees is improper. The record
shows that Appellant was determined indigent on two separate occasions because he received
appointed counsel to represent him for the first time at trial and for the second time on appeal.
There is no evidence in the record to rebut the presumption that Appellant’s indigence continued
throughout the remainder of the proceedings. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p);
Wolfe, 377 S.W.3d at 144. Consequently, the evidence is insufficient to support the imposition of
attorney’s fees as court costs. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p), 26.05(g); Mayer,
309 S.W.3d at 553; Wolfe, 377 S.W.3d at 146. The record is, however, sufficient to support the
imposition of $258.00 in court costs. Accordingly, we sustain Appellant’s sole issue on appeal in
part.


                                                    DISPOSITION
         Having sustained Appellant’s sole issue in part, we modify the judgment of the trial court
to reflect that the amount of court costs is $258.00. See TEX. R. APP. P. 43.2(b). We affirm the
judgment of the trial court as modified. See id.


                                                                JAMES T. WORTHEN
                                                                   Chief Justice

Opinion delivered July 24, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)
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                                COURT OF APPEALS
           TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                          JUDGMENT
                                             JULY 24, 2013


                                       NO. 12-12-00245-CR

                                THOMAS CLEVELAND SMITH,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee

_____________________________________________________________________________
                       Appeal from the 7th Judicial District Court
                   of Smith County, Texas. (Tr.Ct.No. 007-1835-05)
_____________________________________________________________________________

                       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 of the
trial court below should be modified and, as modified, affirmed.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the trial court below be modified to reflect that the amount of court costs is $258.00; and as
modified, the judgment of the trial court is affirmed; and that this decision be certified to the trial
court below for observance.
                       James T. Worthen, Chief Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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