                                  NO. 07-11-00182-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                  NOVEMBER 2, 2011


                         MICHELLE LYNN GILL, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


            FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

                 NO. 19,739-C; HONORABLE ANA ESTEVEZ, JUDGE


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                               MEMORANDUM OPINION


      Appellant, Michelle Lynn Gill, appeals from the trial court’s judgment in which she

was adjudicated guilty of aggravated assault with a deadly weapon and sentenced to

fourteen years’ incarceration. On appeal, she requests that this Court reform the district

clerk’s bill of costs which was incorporated into the judgment and which assessed court-

appointed attorney’s fees against her. She maintains that the trial court improperly

assessed attorney’s fees because the record contains no finding that she had the

financial resources to pay the court-appointed attorney’s fees. The State agrees with

appellant’s contention, concedes error in the assessment of attorney’s fees against
appellant, and joins in her request that we modify the incorporated bill of costs to

exclude attorney’s fees. Having reviewed the record and considered the arguments of

the parties, we agree, modify the incorporated bill of costs by deleting the assessment

of attorney’s fees against appellant, and affirm the trial court’s judgment as modified.


                             Factual and Procedural History


       In September 2008, pursuant to a plea bargain and while represented by court-

appointed counsel, appellant pleaded guilty to the second-degree felony of aggravated

assault with a deadly weapon.       Consistent with the plea agreement, the trial court

placed appellant on deferred adjudication community supervision for a period of three

years and assessed a $1,000.00 fine against her.


       On November 3, 2010, the State filed its motion requesting that the trial court

proceed to adjudication. The State alleged nine ways in which appellant violated the

terms of her deferred adjudication community supervision. Upon appellant’s request,

the trial court appointed counsel to represent appellant on January 5, 2011. On March

29, the trial court held a hearing on the State’s motion to adjudicate guilt. Appellant

pleaded true to three of the nine alleged violations and, after taking evidence, the trial

court found five of the remaining six violations to be true, adjudicated appellant guilty of

aggravated assault with a deadly weapon, and sentenced her to fourteen years’

incarceration. The trial court’s judgment incorporated the district clerk’s bill of costs,

which assessed against appellant $2,200.00 in court-appointed attorney’s fees.


       In response to appellant’s request, the trial court appointed appellate counsel to

represent appellant. The trial court also granted appellant’s request for a free a copy of
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the record for appeal based on its finding that she “cannot pay or give security for the

[a]ppellate record.” Appellant has appealed her conviction to this Court, raising a sole

point of error: the trial court’s assessment of court-appointed attorney’s fees was

erroneous in the absence of evidence that she had the financial resources to pay those

fees.   We will sustain her issue, modify the judgment, and affirm the trial court’s

judgment as modified.


                                         Analysis


        The trial court’s authority to order a defendant to pay for court-appointed

attorney’s fees is made conditional on a finding that the defendant has the financial

resources to pay all or part of those fees:


        If the court determines that a defendant has financial resources that
        enable him to offset in part or in whole the costs of the legal services
        provided, including any expenses and costs, the court shall order the
        defendant to pay during the pendency of the charges or, if convicted, as
        court costs the amount that it finds the defendant is able to pay.

TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2010). Both appellant and the

State contend that the trial court failed to find that appellant had the financial resources

to pay her court-appointed attorney’s fees and that, therefore, the trial court’s

assessment of attorney’s fees against appellant was error.


        Although the trial court did not orally pronounce its assessment of court-

appointed attorney’s fees against appellant and the trial court’s judgment did not

specifically refer to the assessment of such fees, the assessment of attorney’s fees

found in the district clerk’s bill of costs was effective against appellant. See Armstrong

v. State, 340 S.W.3d 759, 766–67 (Tex.Crim.App. 2011). However, the assessment of
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attorney’s fees must be supported by sufficient evidence.         Without record evidence

demonstrating a defendant’s financial ability to offset the costs of legal services, a trial

court errs by ordering reimbursement of court-appointed attorney’s fees. See Mayer v.

State, 309 S.W.3d 552, 556 (Tex.Crim.App. 2010). We now look to the record.


       In appellant’s requests for appointed counsel to represent her in the original plea

proceeding, in the adjudication proceeding, and on appeal, she submitted a summary of

her financial circumstances to the trial court and swore that she was “without means to

employ counsel of my own choosing.” The trial court granted each of her three requests

for appointed counsel.     The trial court also granted appellant’s request for a free

appellate record based on appellant’s representation that she “cannot pay or give

security for the [a]ppellate record.” Therefore, the record reveals that the trial court has

found appellant to be indigent on four occasions.


       “A defendant who is determined by the court to be indigent is presumed to

remain indigent for the remainder of the proceedings in the case unless a material

change in the defendant’s financial circumstances occurs.” TEX. CODE CRIM. PROC. ANN.

art. 26.04(p) (West Supp. 2010); Mayer, 309 S.W.3d at 557. Again, the record before

us reveals that the trial court found four times that appellant was indigent by appointing

three attorneys to represent appellant at various stages of the prosecution and by

granting her request for a free appellate record. The record reveals no evidence to

suggest a material change in appellant’s financial circumstances such that she would be

able to pay all or part of the court-appointed attorney’s fees outlined in the bill of costs.

Nowhere in the record does the trial court find that she has the financial resources to do

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so as required by Article 26.05(g). Therefore, the trial court’s assessment of court-

appointed attorney’s fees against appellant was error.


                                       Conclusion


      Based on appellant’s brief and the State’s motion and response,1 we consider

and sustain the sole issue presented, modify the trial court’s judgment by deleting from

the incorporated bill of costs its assessment of court-appointed attorney’s fees in the

amount of $2,200.00 against appellant, and affirm the trial court’s judgment of

conviction as modified by the corrected bill of costs. See TEX R. APP. P. 43.2(b).




                                                Per Curiam




Do not publish.




      1
         We treat the State’s motion as serving two purposes: (1) its request to depart
from the ordinary timing and protocol regarding submission and disposition of cases and
(2) its brief in response to appellant’s brief. With respect to the State’s request to
suspend operation of the rules regarding notice prior to submission, we grant said
motion. To “expedite a decision” in the instant cause, we invoke Rule 2 of the Texas
Rules of Appellate Procedure to suspend the operation of Rule 39.8 requiring a notice
from the Clerk’s Office at least twenty-one days in advance of submission of the cause
for the Court’s consideration. TEX. R. APP. P. 2, 39.8. With respect to the State’s
responsive analysis, we find the State’s concession of error to be well-taken.
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