                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-10-00303-CR

ROBERT WILLIAM PRICE,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                          From the 220th District Court
                            Hamilton County, Texas
                            Trial Court No. CR07566


                          MEMORANDUM OPINION


      Appellant Robert William Price was charged by indictment with burglary of a

habitation with commission of assault, a second-degree felony. See TEX. PENAL CODE

ANN. § 30.02(a), (c)(2) (West 2011). Under a plea agreement, Price pleaded guilty to the

charged offense. The trial court sentenced Price to five years’ imprisonment, suspended

the sentence, and placed him on community supervision for five years. As a condition

of his supervision, Price was ordered to pay court-appointed attorney’s fees of $500.
        The State subsequently filed a motion to revoke Price’s community supervision.

After finding that Price had violated several conditions of his community supervision,

the trial court revoked his community supervision and reinstated the five-year prison

sentence. The trial court also ordered Price “to pay the amount of $350.00 for court

appointed attorney’s fees associated with the Motion to Revoke, as well as the $298.00

outstanding balance on previously assessed attorney’s fees.” In two issues, Price argues

that: (1) the evidence is insufficient to support the trial court’s assessment of attorney’s

fees; and (2) the judgment erroneously states that he was convicted of a first-degree

felony. We affirm as modified.

       SUFFICIENCY OF THE EVIDENCE SUPPORTING ASSESSMENT OF ATTORNEY’S FEES

        In his first issue, Price contends that the evidence is insufficient to support the

trial court’s order that he pay costs for appointed counsel because he had previously

been found to be indigent and there was no determination that he had the ability to pay

such fees. The State counters that Price waived this complaint by failing to object in the

trial court. In the alternative, the State asserts that only the portion of the judgment that

imposes attorney’s fees incurred in the revocation action should be modified.

Attorney’s Fees Levied as Condition of Community Supervision

        “Sufficiency of the evidence is measured by viewing all of the record evidence in

the light most favorable to the verdict.” Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim.

App. 2010); see Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed.

2d 560 (1979); see also Lucio v. State, 351 S.W.3d 878, 894-95 (Tex. Crim. App. 2011).

“[N]o trial objection is required to preserve an appellate claim of insufficient evidence.”

Price v. State                                                                         Page 2
Mayer, 309 S.W.3d at 556; accord Rankin v. State, 46 S.W.3d 899, 901 (Tex. Crim. App.

2001). Accordingly, the Mayer court held that “the court of appeals did not err in

addressing appellant’s [evidentiary-sufficiency] complaint about the order to reimburse

court-appointed attorney[‘s] fees” even though Mayer did not raise such a complaint at

trial.1 Mayer, 309 S.W.3d at 556.

        But the Mayer court was not addressing fees arising from a plea bargain and

levied as a condition of community supervision. This situation was addressed by the

Court of Criminal Appeals in Speth v. State, 6 S.W.3d 530 (Tex. Crim. App. 1999). The

Speth court stated:

               An award of community supervision is not a right, but a
        contractual privilege, and conditions thereof are terms of the contract
        entered into between the trial court and the defendant. Therefore,
        conditions not objected to are affirmatively accepted as terms of the
        contract. Thus, by entering into the contractual relationship without
        objection, a defendant affirmatively waives any rights encroached upon
        by the terms of the contract. A defendant who benefits from the
        contractual privilege of probation, the granting of which does not involve
        a systemic right or prohibition, must complain at trial to conditions he
        finds objectionable. A trial objection allows the trial court the opportunity
        to either risk abusing his discretion by imposing the condition over
        objection or reconsider the desirability of the contract without the
        objectionable condition.

Id. at 534-35 (footnotes omitted).

        Given Speth, we agree with the State that Price should have complained to the

trial court about the condition of his community supervision obligating him to pay the

        1 As the State points out, in the Mayer case, Judge Keasler dissented and, joined by three other

judges, argued that Mayer did not raise a legal-sufficiency claim on the imposition of attorney’s fees and
questioned whether the issue was properly preserved. Mayer v. State, 309 S.W.3d 552, 558 (Tex. Crim.
App. 2010) (Keasler, J., dissenting) (citing Speth v. State, 6 S.W.3d 530, 531 n.1 (Tex. Crim. App. 1999)
(holding that appellant cannot complain about community-supervision conditions for first time on
appeal)). Nevertheless, the majority held to the contrary. See id. at 556.

Price v. State                                                                                     Page 3
$500 in court-appointed attorney’s fees at the time the condition was imposed. Because

he did not complain, he affirmatively accepted it and forfeited any complaint about it.

Thus, we overrule Price’s first issue to the extent that he complains of the order to pay

“the $298.00 outstanding balance on previously assessed attorney’s fees.”

Attorney’s Fees Associated with Revocation Action

        The $350 for court-appointed attorney’s fees assessed once Price was adjudicated

guilty, however, is controlled by Mayer, and Price’s complaint about it is thus

preserved. See Mayer, 309 S.W.3d at 556; see also Reyes v. State, 324 S.W.3d 865, 867-68

(Tex. App.—Amarillo 2010, no pet.) (holding objection waived to condition of probation

obligating appellant to pay $750 in attorney’s fees because no complaint was made at

time condition was imposed, but, as to $300 in attorney’s fees assessed once appellant

was adjudicated guilty, complaint was not waived).

        For the purpose of assessing attorney’s fees, once an accused is found to be

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

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

(West Supp. 2011); see also Mayer v. State, No. 10-10-00302-CR, 2011 WL 653095, at *2

(Tex. App.—Waco Feb. 23, 2011, pet. ref’d) (mem. op., not designated for publication).

Furthermore, the record must reflect some factual basis to support the determination

that Price was capable of paying all or some of his attorney’s fees at the time of the

judgment. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West. Supp. 2011); Barrera v.

State, 291 S.W.3d 515, 518 (Tex. App.—Amarillo 2009, no pet.); see also Stevenson v. State,

No. 10-09-00358-CR, 2011 WL 4978316, at *1 (Tex. App.—Waco Oct. 19, 2011, no pet.)

Price v. State                                                                       Page 4
(mem. op., not designated for publication); Willis v. State, No. 10-09-00420-CR, 2010 WL

4008368, at *1 (Tex. App.—Waco Oct. 13, 2010, no pet.) (mem. op., not designated for

publication) (“If the State fails to present evidence that the defendant is able to pay all

or part of his court-appointed attorney’s fees, then the trial court commits error by

assessing any part of those fees as costs of court.”). When there is insufficient evidence

to support the assessment of court-appointed attorney’s fees, the proper remedy is to

reform the judgment by deleting the attorney’s fees. See Mayer, 309 S.W.3d at 557; see

also Cain v. State, No. 10-11-00045-CR, 2011 WL 4837723, at *4 (Tex. App.—Waco Oct. 12,

2011, no pet.) (mem. op., not designated for publication) (modifying judgment to delete

finding ordering appellant to pay court-appointed attorney’s and investigator’s fees).

        Article 26.05(g) provides, however, that, if the trial court determines that a

defendant has the financial resources that enable him to offset in whole or in part the

costs of the legal services provided, the court shall order him to pay, as court costs, the

amount that it finds the defendant is able to pay. TEX. CODE CRIM. PROC. ANN. art.

26.05(g); Mayer, 309 S.W.3d at 556.

        On September 28, 2009, the trial court signed an order appointing trial court

counsel for Price. In its order, the trial court specifically stated that: “The Court finds

that defendant [Price] is not financially able to employ counsel of his/her choosing

and/or in the interests of justice require defendant to be represented by counsel.”

Later, Price executed an affidavit, which was attached to his “Personal Bond

Information Form,” and averred that he was not employed.



Price v. State                                                                       Page 5
        On March 31, 2010, the trial court sentenced Price to five years’ imprisonment,

suspended the sentence, and placed him on community supervision for five years. As

conditions of his community supervision, Price was ordered to pay, among other

things, a $50 supervision fee each month during the period of supervision, a $1,000 fine

(at a rate of $50 per month), $500 in court-appointed attorney’s fees (at a rate of $30 per

month), and court costs of $244.

        Approximately three months later, Price was arrested for driving with an invalid

license and for unlawfully possessing a dangerous drug, both of which would be

considered violations of his community supervision. Shortly thereafter, the State filed a

motion to revoke, alleging that Price violated several conditions of his community

supervision, including his failure to pay the supervision fee, the fine, the court costs,

and his court-appointed attorney’s fees.

        Price filed a second request for appointment of counsel. Attached to his request

was a form indicating that he: (1) had paid $100 to his bondsman; (2) was employed

and making $200 a week; (3) owned a vehicle valued at $4,000; and (4) had collected

unemployment benefits. When asked to explain how he got the money to pay the

bondsman, Price responded that he had “sold some stuff.” Nevertheless, the trial court,

once again, appointed Price counsel because he was “not financially able to employ

counsel . . . .”

        On August 11, 2010, the trial court conducted a hearing on the State’s motion to

revoke. At the hearing, Price pleaded “true” to all but one of the allegations in the

State’s motion to revoke. In addition, Price testified that he was gainfully employed by

Price v. State                                                                       Page 6
a company called “Storms” and that he had paid $800 toward the fees and fines

imposed by the trial court as conditions of his community supervision.             At the

conclusion of the hearing, the trial court found all of the allegations contained in the

State’s motion to revoke to be true and ordered that Price pay $350 in attorney’s fees

pertaining to the motion to revoke. Thereafter, the trial court determined that Price was

indigent for purposes of appeal and ordered the appointment of appellate counsel.

        While the record does contain evidence indicating that Price was employed at the

time of the revocation hearing and that he had made a substantial payment towards the

costs associated with his community supervision, the trial court did not make an

explicit finding that Price had the financial resources that enabled him to offset in whole

or in part the costs of the legal services provided.2 See TEX. CODE CRIM. PROC. ANN. art.

26.05(g); see also Mayer, 309 S.W.3d at 556. Furthermore, the State did not present

evidence indicating that Price’s financial situation at the time of the judgment had

materially changed to the extent that his indigency status was no longer warranted. See

TEX. CODE CRIM. PROC. ANN. art. 26.05(g); Barrera, 291 S.W.3d at 518; see also Stevenson,

2011 WL 4978316, at *1; Willis, 2010 WL 4008368, at *1. It is particularly telling that the

trial court, despite imposing the above-mentioned attorney’s fees, found Price to be

indigent for purposes of appeal and appointed him appellate counsel. Accordingly,

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


        2   The entire exchange regarding attorney’s fees was as follows:

        [Counsel for Price]: Your, Honor, was there any attorney’s fees?

        THE COURT:                 Yes, sir, three fifty.

Price v. State                                                                       Page 7
to support the trial court’s assessment of attorney’s fees once Price’s community

supervision was revoked. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); see also Mayer,

2011 WL 653095, at *2. We consequently sustain Price’s first issue in part and modify

the trial court’s judgment to delete the order to pay “the amount of $350.00 for court

appointed attorney’s fees associated with the Motion to Revoke.” See TEX. R. APP. P.

43.2(b); Mayer, 309 S.W.3d at 557; see also Cain, 2011 WL 4837723, at *4.

                                    DEGREE OF FELONY

        In his second issue, Price asserts that the judgment erroneously states that he was

convicted of a first-degree felony. According to Price, the judgment should instead read

that he was convicted of a second-degree felony. The State concedes that the judgment

erroneously states that Price was convicted of a first-degree felony.

        An intermediate appellate court may reform a trial court’s judgment to make the

record speak the truth when it has the necessary data and information to do so. See TEX.

R. APP. P. 43.2(b); see also Tamez v. State, 620 S.W.2d 586, 590 (Tex. Crim. App. [Panel

Op.] 1981) (reforming judgment to show $500 fine was imposed but not stated in

judgment); Jackson v. State, 288 S.W.3d 60, 64 (Tex. App.—Houston [1st Dist.] 2009, pet.

ref’d) (modifying judgment to reflect appellant had been found guilty of aggravated

assault, a second-degree felony, rather than aggravated assault of public servant, a first-

degree felony); Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001,

no pet.) (reforming judgment to reflect longer sentence). Because the record supports

his contention, we sustain Price’s second issue and reform the judgment to reflect that



Price v. State                                                                       Page 8
he was convicted of burglary of a habitation with commission of assault, a second-

degree felony.3

                                             CONCLUSION

        We affirm the judgment of the trial court as modified herein.




                                                         REX D. DAVIS
                                                         Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed as modified
Opinion delivered and filed April 25, 2012
Do not publish
[CR25]




        3A burglary offense becomes a first-degree felony only if: “(1) the premises are a habitation; and
(2) any party to the offense entered the habitation with intent to commit a felony other than felony theft
or committed or attempted to commit a felony other than felony theft.” TEX. PENAL CODE ANN. § 30.02(d)
(West 2011).

Price v. State                                                                                     Page 9
