                                     NO. 07-10-0201-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL A

                                     JULY 6, 2012
                           ______________________________


                            PAUL DAVID WOLFE, APPELLANT

                                               V.

                            THE STATE OF TEXAS, APPELLEE


                         _________________________________

             FROM THE 181ST DISTRICT COURT OF POTTER COUNTY;

                 NO.55,826-B; HONORABLE JOHN B. BOARD, JUDGE

                           _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                           OPINION


      On September 11, 2007, Appellant, Paul David Wolfe, plead guilty and was

placed on five years deferred adjudication for the offense of aggravated assault.1 At

that time the court awarded his court-appointed attorney a fee of $400. Two months

later, the State filed a motion to proceed and on January 29, 2008, the trial court

amended the order of deferred adjudication to include a requirement that Appellant


1
See Tex. Penal Code Ann. § 22.02(a)(2) (West 2011).
complete a substance abuse program. At that time the trial court awarded his court-

appointed attorney an additional fee of $400. Two years later the State filed another

motion to proceed and on April 27, 2010, following a plea of true, the trial court

adjudicated Appellant guilty and assessed his sentence at ten years confinement. That

same day the trial court awarded his court-appointed attorney an additional fee of $825.

On May 5, 2010, the trial court signed a written judgment ordering Appellant to "pay all

fines, court costs, and restitution as indicated above." The summary portion of the

judgment contains the statement: "Court Costs: $ see attached." The attachment, as

reflected in the Clerk's Record, is a Bill of Costs dated May 10, 2010.2 It includes

entries for "attorney fees (court appointed) $1,625" and "sheriff fees $196.74." Through

four issues, Appellant challenges both of these fees. We modify the judgment and, as

modified, affirm.


                                           ANALYSIS


       By issues one through three, he challenges the taxation of court-appointed

attorney's fees. We will address issues one through three together.


COURT-APPOINTED ATTORNEY'S FEES


       Concerning the assessment of court appointed attorney's fees, Appellant asserts:

(1) the fees were improperly assessed because there was no finding by the trial court

that he had the ability to pay all or any part of the fees assessed, (2) the record is

devoid of any evidence showing he is able to pay all or any part of the fees assessed,

2
 The attachment was not prepared until five days after the judgment was signed. Although we will
address the attachment as a part of the trial court's judgment, this opinion should not be read as
approving the procedure of adding an attachment to an already signed document.

                                                2
and (3) there is insufficient evidence to sustain the imposition of the $825 in attorney's

fees awarded after the adjudication of guilt and assessment of sentence. In response to

Appellant's first two issues, the State contends that because he failed to immediately

appeal the $400 in attorney's fees awarded following his original plea bargain, this Court

lacks jurisdiction and Appellant should not be heard to complain about those fees at this

time. As for the remaining portion of the attorney's fees, totaling $1,225, the State does

not argue the jurisdictional issue and it candidly agrees that these fees should be

deleted from the judgment. As to the third issue, while the State contends there is

sufficient evidence to sustain the amount of the attorney's fees awarded after the

revocation of Appellant's deferred adjudication, it candidly concedes there is insufficient

evidence pertaining to his ability to pay, and it agrees that he should not be ordered to

pay those fees. (Emphasis added).


       By now, it is well established that in order to assess court-appointed attorney's

fees in a judgment, a trial court must determine that the defendant has financial

resources that enable him to offset in part or in whole the costs of legal services

provided. See Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2011). See also

Mayer v. State, 309 S.W.3d 552, 555-56 (Tex.Crim.App. 2010); Armstrong v. State, 340

S.W.3d 759, 755-56 (Tex.Crim.App. 2011) (holding that a "defendant's financial

resources and ability to pay are explicit critical elements in the trial court's determination

of the propriety of ordering reimbursement of costs and fees.") Furthermore, not only

must the trial court make a determination regarding the defendant's ability to pay, the

record must reflect some factual basis to support that determination. Barrera v. State,




                                              3
291 S.W.3d 515, 518 (Tex.App.--Amarillo 2009, no pet.); Perez v. State, 280 S.W.3d

886, 887 (Tex.App.--Amarillo 2009, no pet.).


       Here, the clerk's record reflects that at each stage in this proceeding (the original

plea, the modification, and the revocation) the trial court found Appellant to be indigent.

Unless a material change in his financial resources occurs, once a criminal defendant

has been found to be indigent, he is presumed to remain indigent for the remainder of

the proceedings.     Tex. Code Crim. Proc. Ann. art. 26.04(p) (West Supp. 2011).

Therefore, because there is evidence of record demonstrating that Appellant was

indigent immediately prior to each time attorney's fees were awarded, we presume that

he was indigent at the time of each award.


       The State would have us differentiate between fees awarded following the

original plea granting community supervision and the fees awarded following the

modification and subsequent revocation. Relying upon Olivo v. State, 918 S.W.2d 519,

523 (Tex.Crim.App. 1996), the State contends that because no notice of appeal was

filed immediately following the original plea, this Court lacks jurisdiction to review the

present judgment ordering Appellant to pay those previously ordered attorney's fees.

Olivo is simply inapposite. Olivo involved the late filing of a notice of appeal following a

conviction for the offense of murder. In Olivo, the Texas Court of Criminal Appeals held

that a late filed notice of appeal does not invoke the jurisdiction of an appellate court.

But those are not the facts of this case. Appellant is not attempting to appeal the

September 2007 order placing him on deferred adjudication, nor is he complaining

about the January 2008 amended order adding additional conditions of supervision.


                                             4
Here, Appellant timely filed a notice of appeal contesting the May 5, 2010 judgment

ordering him to pay all "fines, court costs, and restitution" as reflected in the "attached"

Bill of Costs dated May 10, 2010. While there may be other questions concerning the

enforceability of the court's order, jurisdiction is not one of them.      Accordingly, the

State's jurisdictional argument is rejected.


       As to Appellant's "no evidence" argument, the State contends that because a

plea agreement is generally held to constitute a contractual agreement, Appellant

should not be heard to complain about the "court costs and fees" he bargained for in

order to originally obtain deferred adjudication. Various courts of appeals, and even the

justices of this Court, have disagreed as to whether a prior agreement to pay attorney's

fees pursuant to an order of community supervision (whether deferred adjudication or

straight community supervision) should bar an appellant from arguing the insufficiency

of the evidence to support a determination of either the amount of attorney's fees or the

appellant's financial ability to repay all or part of those fees. See 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) (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); Armstrong v. State, No. 07-09-0091-CR,

2011 Tex. App. LEXIS 6637, at *3 (Tex.App.--Amarillo Aug. 17, 2011, no pet.) (not

designated for publication) (modifying the trial court's judgment to delete the

assessment of attorney's fees due to insufficient evidence without making any

distinction between attorney's fees the defendant agreed to pay as a condition of his

                                               5
community supervision and additional attorney’s fees assessed at adjudication);

Marquez v. State, No. 07-10-0366-CR, 2011 Tex.App. LEXIS 2307, at *6 (Tex.App.--

Amarillo March 30, 2011, no pet.) (mem. op.) (not designated for publication) (Pirtle, J.,

dissenting) (holding that an agreement to pay attorney's fees as a condition of

community supervision is not the same thing as a determination of a defendant's ability

to pay those fees, and further finding that the determination of an ability to pay must be

made at the time of the assessment at issue). But see Price v. State, No. 10-10-0303-

CR, 2012 Tex.App. LEXIS 3321, at *4 (Tex.App.--Waco April 25, 2012, no pet. h.) (not

designated for publication) (differentiating between attorney's fees levied as a condition

of community supervision and attorney's fees associated with revocation proceeding,

and holding that appellant "forfeited any complaint" about the fees levied as a condition

of community supervision); Reyes v. State, 324 S.W.3d 865, 867-868 (Tex.App.--

Amarillo 2010, no pet.) (holding that because the appellant "agreed" to pay attorney's

fees of $750 as a condition of his deferred adjudication community supervision, he

"waived" any objection to the assessment of those fees upon his subsequent

adjudication).


       Both Price and Reyes rely heavily upon Speth v. State, 6 S.W.3d 530, 534-35

(Tex.Crim.App. 1999), for the proposition that an award of community supervision is

akin to a contractual agreement where the conditions of supervision are like "terms of

the contract entered into between the court and the defendant." Speth involved an

appeal from an order imposing conditions of community supervision unrelated to the

underlying offense. The Fourteenth Court of Appeals reformed the judgment of the trial

court to delete some of the challenged conditions of community supervision. The Court


                                            6
of Criminal Appeals granted review to decide "whether a defendant can challenge

conditions of probation for the first time on appeal." Id. at 531. Finding that the granting

of community supervision was "profoundly different" from the imposition of a sentence,

and that the trial court's decision whether to grant or deny community supervision, and

likewise the conditions to be imposed, was "wholly discretionary and nonreviewable,"

the Court went on to hold that when complaining about the terms of community

supervision, a defendant must complain at trial regarding the conditions he finds

objectionable, otherwise those complaints are waived. Id. at 532-34. Because Mr.

Speth did not object at trial to the imposition of the challenged conditions, the Court of

Criminal Appeals found that the Court of Appeals erred in holding that Speth could

complain about those conditions for the first time on appeal.


        Here, Appellant is not complaining about terms and conditions of his community

supervision.3 In fact, he acknowledges and accepts those conditions and does not

contest the revocation of his community supervision. What Appellant complains about

is the entry of a judgment that is not supported by the evidence. Because that issue is

"profoundly different" from the issue involved in Speth, we do not find that precedent to

be controlling in this situation.


        Furthermore, in Armstrong, after being directly confronted with the State's

argument that Speth controlled the disposition of a direct appeal complaining about the

insufficiency of the evidence in a post-revocation of community supervision assessment

of attorney's fees case, the Court of Criminal Appeals chose to remand the appellant's


3
 In his dissent, Justice Campbell disagrees contending that the very substance of Appellant's complaint is
the terms and conditions of probation. [slip op. at ___].

                                                    7
sufficiency argument to this Court for further consideration. Armstrong, 340 S.W.3d at

764, 766.    Accordingly, we conclude that Armstrong at least implicitly rejected the

State's Speth argument in facts similar to this case.   Because those cases finding that

an appellant has forfeited any complaint about attorney's fees assessed as a condition

of community supervision have relied upon Speth and its progeny, we find that the

better reasoned approach is to differentiate between judgments and orders of

community supervision, and to not differentiate between attorney's fees levied as a

condition of community supervision and attorney's fees assessed as a part of the

revocation proceeding, and we agree with those cases following the approach that an

article 26.05(g) determination of ability to pay must be made at the time of the judgment

or order at issue.


       Furthermore, agreeing to pay attorney's fees as a condition of community

supervision and having the actual ability to pay those fees are two entirely different

concepts. See Marquez, 2011 Tex. App. LEXIS 2307, at *6 (Pirtle, J., dissenting). Our

jurisprudence is replete with examples of people who contracted to pay an obligation

but were then unable to fulfill that obligation. An agreement to pay and an ability to pay

are just not the same issue.


       That being said, we find the record in this case contains no evidence that

Appellant had the financial resources that would enable him to offset in part or in whole

the costs of the legal services provided to him at any time, and we conclude that the

judgment assessing court costs in accordance with the Bill of Costs dated on May 10,

2010, is not supported by sufficient evidence and is, therefore, improper. Therefore, we

conclude that an assessment of attorney's fees would be improper. See Mayer, 309

                                            8
S.W.3d at 555-56. No objection is required to challenge the sufficiency of the evidence

regarding a defendant's ability to pay. Id. When the evidence does not support an

order to pay attorney's fees, the proper remedy is to delete the order. Id. at 557.

Accordingly, we sustain Appellant's second and third issues and modify the judgment to

delete the requirement that Appellant pay $1,625 in attorney's fees.           Review of

Appellant's first issue pertaining to a finding by the trial court is thereby rendered

unnecessary to the disposition of this appeal. Tex. R. App. P. 47.1.


SHERIFF'S FEES


      By his fourth issue, Appellant contends the evidence was insufficient to support

$171.94 of the $196.74 assessed as sheriff's fees.        After Appellant filed his brief,

apparently at the request of the State, a supplemental clerk's record was filed containing

the following documents: (1) warrant of arrest or capias, signed May 21, 2007, executed

June 1, 2007; (2) precept to serve a certified copy of the indictment, issued June 8,

2007, executed June 12, 2007; (3) alias capias, issued December 13, 2007, executed

December 31, 2007; (4) precept to serve a certified copy of the motion to proceed,

issued December 6, 2007, executed January 2, 2008; (5) defendant's application for

issuance of a subpoena, filed January 16, 2008; (6) subpoena commanding Kim Berlin

to appear as a witness, issued January 16, 2008, served January 19, 2008 (reflecting

"Fee for Summoning $5.00" and "Fee for Mileage $1.74"); (7) alias capias, issued

November 25, 2009, executed December 20, 2009; (8) precept to serve a certified copy

of motion to proceed, issued November 25, 2009, executed December 21, 2009; and,

(9) appearance bond, filed February 3, 2010.



                                            9
       Without the necessity of pronouncement in open court, or inclusion in the written

judgment, Weir v. State, 278 S.W.3d 364, 367 (Tex.Crim.App. 2009), and irrespective of

the defendant's ability to pay, Williams v. State, 332 S.W.3d 694, 700 (Tex.App.--

Amarillo 2011, pet. denied), a person convicted of a criminal offense shall pay the

statutorily mandated fees found in section 102.021 of the Texas Government Code.

Those fees include "fees for services of peace officer," which specifically include $50 for

executing or processing an issued arrest warrant or capias,4 $5 for summoning a

witness,5 $35 for serving a writ,6 $10 for taking and approving a bond,7 and $0.29 per

mile for mileage for certain services performed.8


       Based upon the record, we conclude the evidence was sufficient to support the

assessment of the sheriff's fees contained in the Bill of Costs. Accordingly, we overrule

Appellant's fourth issue.

                                           CONCLUSION


       The judgment of the trial court is modified to add the following provision at page 2

beneath the heading "Furthermore, the following special findings or orders apply": "As

used herein the term 'court costs' does not include court-appointed attorney's fees." As

modified, the judgment is affirmed.


                                                      Patrick A. Pirtle
                                                          Justice
Publish.
Campbell, J., concurring and dissenting.

4
 Tex. Gov't Code Ann. § 102.021(3)(B) (West Supp. 2011).
5
 Tex. Gov't Code Ann. § 102.021(3)(C) (West Supp. 2011).
6
 Tex. Gov't Code Ann. § 102.021(3)(D) (West Supp. 2011).
7
 Tex. Gov't Code Ann. § 102.021(3)(E) (West Supp. 2011).
8
 Tex. Gov't Code Ann. § 102.021(3)(I) (West Supp. 2011).

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