                                     NO. 07-12-0347-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                             PANEL A

                                   JANUARY 3, 2013
                           ______________________________


                          AMY MICHELLE BRUCE, APPELLANT

                                               V.

                            THE STATE OF TEXAS, APPELLEE


                         _________________________________

               FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                  NO. B 17917-0901; HONORABLE ED SELF, JUDGE

                          _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                 MEMORANDUM OPINION


       On May 1, 2009, Appellant, Amy Michelle Bruce, was placed on deferred

adjudication community supervision for eighteen months for credit card or debit card

abuse. 1   In 2010, by entry of an agreed order, Appellant’s term of community

supervision was extended three years to November 1, 2013. In April 2012, the State

moved to proceed with an adjudication of guilt alleging Appellant had violated the terms

1
TEX. PENAL CODE ANN. § 32.31 (W EST 2011).
and conditions of her community supervision.                 At a hearing on the State’s motion,

Appellant entered a plea of true to those allegations. After hearing testimony in support

of her plea of true, the trial court adjudicated her guilty of the original charge and

assessed punishment at two years confinement in a state jail facility and a $2,000 fine.

In presenting this appeal, counsel has filed an Anders 2 brief in support of a motion to

withdraw. We grant counsel=s motion and as modified, affirm the judgment.


        In support of his motion to withdraw, counsel certifies he has conducted a

conscientious examination of the record and, in his opinion, the record reflects no

potentially plausible basis to support an appeal. Anders v. California, 386 U.S. 738,

744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406

(Tex.Crim.App. 2008).            Counsel candidly discusses why, under the controlling

authorities, the appeal is frivolous.             See High v. State, 573 S.W.2d 807, 813

(Tex.Crim.App. 1978).          Counsel has demonstrated that he has complied with the

requirements of Anders and In re Schulman by (1) providing a copy of the brief to

Appellant, (2) notifying her of her right to file a pro se response if she desired to do so,

and (3) informing her of her right to file a pro se petition for discretionary review. In re

Schulman, 252 S.W.3d at 408. 3 By letter, this Court granted Appellant an opportunity to

exercise her right to file a response to counsel=s brief, should she be so inclined. Id. at

409 n.23. Appellant did not file a response. Neither did the State favor us with a brief.
2
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
3
 Notwithstanding that Appellant was informed of her right to file a pro se petition for discretionary review
upon execution of the Trial Court=s Certification of Defendant=s Right of Appeal, counsel must comply
with Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five
days after this opinion is handed down, send Appellant a copy of the opinion and judgment together with
notification of her right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at
408 n.22 & at 411 n.35.


                                                     2
       By the Anders brief, counsel candidly concedes there are no arguable issues to

present to this Court. We review an appeal from a trial court's order adjudicating guilt in

the same manner as a revocation hearing. See TEX. CODE CRIM. PROC. ANN. art. 42.12,

§ 5(b) (W EST SUPP. 2012). When reviewing an order revoking community supervision

imposed under an order of deferred adjudication, the sole question before this Court is

whether the trial court abused its discretion. Rickels v. State, 202 S.W.3d 759, 763

(Tex.Crim.App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984);

Jackson v. State, 645 S.W.2d 303, 305 (Tex.Crim.App. 1983).              In a revocation

proceeding, the State must prove by a preponderance of the evidence that the

probationer violated a condition of community supervision as alleged in the motion.

Cobb v. State, 851 S.W.2d 871, 874 (Tex.Crim.App. 1993). If the State fails to meet its

burden of proof, the trial court abuses its discretion in revoking community supervision.

Cardona, 665 S.W.2d at 494. In determining the sufficiency of the evidence to sustain a

revocation, we view the evidence in the light most favorable to the trial court's ruling.

Jones v. State, 589 S.W.2d 419, 421 (Tex.Crim.App. 1979). Additionally, a plea of true

standing alone is sufficient to support a trial court’s revocation order. Moses v. State,

590 S.W.2d 469, 470 (Tex.Crim.App. 1979).


       We have independently examined the entire record to determine whether there

are any non-frivolous issues which might support the appeal. See Penson v. Ohio, 488

U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); In re Schulman, 252 S.W.3d at 409;

Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We have found no such

issues. See Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969). After reviewing




                                            3
the record and counsel=s brief, we agree with counsel that there are no plausible

grounds for appeal. See Bledsoe v. State, 178 S.W.3d 824 (Tex.Crim.App. 2005).


                                COURT-APPOINTED ATTORNEY'S FEES


         We note an issue not raised regarding the assessment of attorney's fees. 4 Once

a criminal defendant has been found to be indigent, he is presumed to remain indigent

for the remainder of the proceedings unless a material change in a defendant's financial

resources occurs. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (W EST SUPP. 2012).

Furthermore, in order to assess attorney's fees in a judgment, order revoking

community supervision, or order adjudicating guilt, a trial court must determine that the

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

the costs of legal services provided. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g)

(W EST SUPP. 2012). See also Mayer v. State, 309 S.W.3d 552, 555-56 (Tex.Crim.App.

2010).    Additionally, the record must reflect some factual basis to support the trial

court's determination. See Barrera v. State, 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.).


         In Wolfe v. State, 377 S.W.3d 141, 144-46 (Tex.App.—Amarillo 2012, no pet.),

this Court recently held that an agreement to pay attorney’s fees as part of a plea

bargain alone was insufficient to support the trial court's assessment of attorney's fees

as court costs, even though payment of those fees had been a condition of appellant's

community supervision. See Armstrong v. State, No. 07-09-0091-CR, 2011 Tex. App.

4
 When a defendant appeals his conviction, courts of appeals have jurisdiction to address any error in that
case. Pfeiffer v. State, 363 S.W.3d 594, 599 (Tex.Crim.App. 2012). Where, as here, the error appears
on the face of the judgment and does not involve the merits of the criminal trial, but instead addresses the
clerical correctness of the judgment, we find that the interest of justice dictates that we address the issue.

                                                      4
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 community supervision and additional

attorney’s fees assessed at adjudication).


      Here, the clerk's record reflects the trial court appointed counsel to represent

Appellant during the phase in which she was granted deferred adjudication and at each

phase thereafter, including pursuing this appeal.             Thus, because the record

demonstrates that Appellant was indigent immediately prior to each time attorney's fees

were awarded, we presume she remained indigent at the time of each award. Because

there is no evidence in the record of a change in Appellant's financial resources that

would enable her to offset in part or in whole the costs of legal services provided, we

conclude that portion of the Judgment Adjudicating Guilt which orders her to pay court-

appointed attorney's fees is improper.


      Because no objection is required to challenge the sufficiency of the evidence

regarding a defendant's ability to pay, Mayer, 309 S.W.3d at 555-56, and there is no

evidence to support the order for Appellant to pay attorney's fees, the proper remedy is

to delete that order. The Judgment Adjudicating Guilt is modified to delete the special

finding on page 2 that she pay $417.43 for attorney’s fees.




                                             5
                                 CONCLUSION


      As modified, the judgment is affirmed and counsel's motion to withdraw is

granted.


                                           Patrick A. Pirtle
                                               Justice

Do not publish.




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