                                  NO. 12-15-00247-CR

                          IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

CARLOS DEHENRI COOK,                             §      APPEAL FROM THE 7TH
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §      SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
         Carlos Dehenri Cook appeals the trial court’s order revoking community supervision. In
one issue, Appellant argues that the trial court erred by assessing attorney’s fees. We affirm.


                                          BACKGROUND
         Appellant was charged by indictment with tampering with physical evidence. Pursuant to
a plea bargain agreement with the State, Appellant pleaded “guilty” to the offense, and the trial
court assessed his punishment at imprisonment for ten years, suspended for a period of four
years.
         Subsequently, the State filed an application to revoke Appellant’s community
supervision. Appellant pleaded true to the allegations in the application. After giving both
parties an opportunity to present evidence and arguments, the trial court granted the application
to revoke and assessed his punishment at imprisonment for five years. This appeal followed.


                                        ATTORNEY’S FEES
         In Appellant’s sole issue, he contends that the trial court erred by imposing attorney’s
fees against him.
Standard of Review and Applicable Law
       The imposition of court costs upon a criminal defendant is a “nonpunitive recoupment of
the costs of judicial resources expended in connection with the trial of the case.” Johnson v.
State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). When the imposition of court costs is
challenged on appeal, we review the assessment of costs to determine if there is a basis for the
costs, not to determine if sufficient evidence to prove each cost was offered at trial. Id.
       A trial court has the authority to assess attorney’s fees against a criminal defendant who
received court-appointed counsel. TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp.
2016). But once a criminal defendant has been determined to be indigent, he “is presumed to
remain indigent for the remainder of the proceedings unless a material change in his financial
circumstances occurs.” TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2016). Before
attorney’s fees may be imposed, the trial court must make a determination supported by some
factual basis in the record that the defendant has the financial resources to enable him to offset in
part or in whole the costs of the legal services provided. See Johnson v. State, 405 S.W.3d 350,
354 (Tex. App.—Tyler 2013, no pet.). If the record does not show that the defendant’s financial
circumstances materially changed, there is no basis for the imposition of attorney’s fees. See
TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Mayer v. State, 309 S.W.3d 552, 553, 557 (Tex.
Crim. App. 2010); Johnson, 405 S.W.3d at 354.
       No objection is necessary to preserve a claim that there is no evidence of a defendant’s
ability to pay attorney’s fees. Mayer, 309 S.W.3d at 556. But where such a claim arises from an
order originally imposing community supervision, the defendant must bring it in a direct appeal
from that order or risk forfeiture. Wiley v. State, 410 S.W.3d 313, 318 (Tex. Crim. App. 2013).
The claim is forfeited if the defendant was aware of his obligation to pay the fees but did not
bring the claim in a direct appeal. Riles v. State, 452 S.W.3d 333, 337 (Tex. Crim. App. 2015).
Analysis
       Appellant argues that the trial court erred by imposing attorney’s fees against him
without evidence of his ability to pay them. He contends that we should modify the trial court’s
judgment to delete the attorney’s fees. Alternatively, Appellant contends that we should remand
his case for a hearing to determine whether attorney’s fees are included in the court cost
assessment. We decline to do either.




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         First, we observe that although attorney’s fees were included in the original judgment
when Appellant was placed on community supervision, it appears the attorney’s fees have
already been removed from the final court cost assessment. The court cost assessment in the
original judgment is $614. The bill of costs lists court costs totaling $614, including $300 in
attorney’s fees. So without the attorney’s fees, the court costs are $314. But the assessment of
court costs in the final judgment is $289. Thus, the bill of costs provides a basis for the final
court cost assessment. See Johnson, 423 S.W.3d at 390.
         Furthermore, even if the attorney’s fees were included in the final judgment, Appellant
has forfeited his claim that they are improper. Because Appellant’s claim arises from the order
originally imposing community supervision, he was required to bring it in a direct appeal from
that order if he was aware of his obligation to pay the fees. See Wiley, 410 S.W.3d at 318; Riles,
452 S.W.3d at 337. The record shows that Appellant was aware of this obligation. He signed his
Conditions of Community Supervision, which provided that he was to “[p]ay all court cost [sic],
including any appointed counsel fee at the rate of $20 each month beginning December, 2014.”
He told the trial court that he had read all of his paperwork and discussed it with his attorney.
We conclude that Appellant forfeited his claim by failing to bring it in a direct appeal from the
order imposing community supervision. See id. Accordingly, we overrule Appellant’s sole issue.


                                                  DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

                                                                JAMES T. WORTHEN
                                                                   Chief Justice

Opinion delivered August 10, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           AUGUST 10, 2016


                                         NO. 12-15-00247-CR


                                    CARLOS DEHENRI COOK,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee


                                  Appeal from the 7th District Court
                         of Smith County, Texas (Tr.Ct.No. 007-1536-13)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
