                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-12-00259-CR

SAM WILEY, JR.,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee


                          From the 54th District Court
                           McLennan County, Texas
                          Trial Court No. 2011-207-C2


                                   OPINION


      Sam Wiley, Jr. was convicted of the offense of hindering apprehension and

sentenced to eight years in prison and a $1,000 fine; however, that sentence was

suspended and Wiley was placed on community supervision for a period of eight years.

TEX. PEN. CODE ANN. § 38.05 (West 2011).       One of the terms of his community

supervision required Wiley to reimburse McLennan County for the cost of his court-

appointed attorney in the amount of $400. The State later filed a motion to revoke his

community supervision and the trial court found that Wiley had violated the terms and
conditions of his community supervision, revoked his community supervision, and

sentenced him to eight years in prison and a $1,000 fine. The judgment from the

revocation assessed attorney's fees against Wiley in the amount of $800, which included

the prior assessment from when he was placed on community supervision and a second

assessment of $400 for the attorney's fees assessed for the revocation proceedings.

Wiley complains that the evidence was insufficient for the trial court to have assessed

the entire amount of the attorney's fees pursuant to Mayer v. State. Mayer v. State, 309

S.W.3d 552 (Tex. Crim. App. 2010). The State again concedes that the evidence was

insufficient to support the assessment of the attorney's fees for the revocation of Wiley's

community supervision but not for the attorney's fees assessed at the time of the

imposition of the community supervision.1 We agree that the evidence was insufficient

for the second assessment of the $400 in attorney's fees at the time of the revocation of

Wiley's community supervision.

           However, as to the first assessment, we have previously determined that a

complaint regarding the assessment of attorney's fees as a condition of community

supervision must be raised at the time the condition was imposed. See Price v. State, No.

10-10-00303-CR, 2012 Tex. App. LEXIS 3321 at *5 (Tex. App.—Waco Apr. 25, 2012, no

pet.) (citing Speth v. State, 6 S.W.3d 530 (Tex. Crim. App. 1999)). We recognize that the

appellate courts are divided as to whether or not a complaint regarding the imposition


1   This is not the first time that the State has conceded error in an appeal from a post-Mayer judgment.

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of attorney's fees originally assessed in a criminal proceeding may be raised for the first

time on appeal from the revocation of community supervision. See, e.g., Wolfe v. State,

No. 07-10-00201-CR, 2012 Tex. App. LEXIS 5368 at *11 (Tex. App.—Amarillo July 6,

2012, no pet. h.) (concluding that even though a condition of appellant's community

supervision required payment of court-appointed attorney's fees, at the time of

adjudication evidence was insufficient to support the trial court's assessment of those

fees as court costs); Derby v. State, No. 09-11-0256-CR, 2011 Tex. App. LEXIS 9810, at *6-7

(Tex. App.—Beaumont Dec. 14, 2011, no pet.) (not designated for publication) (same);

Beck v. State, No. 13-11-00646-CR, 2012 Tex. App. LEXIS 7135 at *5 (Tex. App.—Corpus

Christi Aug. 23, 2012, no pet. h.) (not designated for publication) (same); but see, c.f.,

Jackson v. State, No. 02-09-00258-CR, 2010 Tex. App. LEXIS 10115 at *18 (Tex. App.—Fort

Worth Dec. 23, 2010, no pet.) (must challenge fees at the time original sentence

imposed); Hill v. State, No. 12-11-00292-CR, 2012 Tex. App. LEXIS 5492 at *8 (Tex.

App.—Tyler July 11, 2012, no pet. h.) (same). We will follow our recent decision in Price

and find that because Wiley did not complain about the assessment of the original $400

in attorney's fees when his community supervision was imposed, he has waived that

complaint. Id. Wiley’s sole issue is sustained in part and overruled in part.

Conclusion

        The evidence was insufficient for the trial court to have assessed the attorney’s

fees incurred by Wiley's revocation attorney in the judgment revoking Wiley's


Wiley v. State                                                                       Page 3
probation; however, the complaint regarding the attorney's fees assessed from the

judgment placing Wiley on community supervision was waived.               Therefore, the

judgment of the trial court is reversed in part as to the issue of the assessment of the

court appointed attorney's fees and this proceeding is remanded to the trial court for the

entry of a new judgment in accordance with this opinion.




                                         TOM GRAY
                                         Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed in part and remanded
Opinion delivered and filed November 29, 2012
Publish
[CR25]




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