                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-19-00223-CR



       RUBEN LOVE ASBERRY, SR., Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 369th District Court
                Anderson County, Texas
            Trial Court No. 369CR-16-32573




      Before Morriss, C.J., Burgess and Stevens, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                    MEMORANDUM OPINION
        An Anderson County jury convicted Ruben Love Asberry, Sr., of possession with intent to

deliver more than four, but less than 200, grams of methamphetamine. 1 See TEX. HEALTH &

SAFETY CODE ANN. § 481.112(d). Asberry was sentenced to seventy-five years’ imprisonment

and was ordered to pay a $10,000.00 fine and $404.00 in court costs.

        On appeal, Asberry argues that the bill of costs should be modified to delete a note stating

that fees for his court-appointed attorney can be added later because there is no evidence that he is

able to pay them. The State concedes the issue. Asberry also argues that the trial court’s judgment

should be modified to reflect the correct date of offense, but a judgment nunc pro tunc has already

corrected that issue. As a result, we modify the bill of costs by deleting language stating that

attorney fees can be added later and affirm the trial court’s judgment.

        Because he was indigent, the trial court did not assess attorney fees against Asberry. The

bill of costs correctly showed that the judgment did not contain a fee for Asberry’s court-appointed

attorney, but also included a note that such fees could be added later. Under Article 26.05(g) of

the Texas Code of Criminal Procedure, a trial court has the authority to order the reimbursement

of court-appointed attorney fees only 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.”             TEX. CODE CRIM. PROC. ANN. art. 26.05(g).                  “[T]he

defendant’s financial resources and ability to pay are explicit critical elements in the trial court’s



1
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We follow the precedent of
the Twelfth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
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determination of the propriety of ordering reimbursement of costs and fees” of legal services

provided. Armstrong v. State, 340 S.W.3d 759, 765–66 (Tex. Crim. App. 2011) (quoting Mayer

v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)).

         Since there is no finding of the ability of Asberry to pay them, attorney fees could not be

assessed against him. See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013); see also

Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010); Martin v. State, 405 S.W.3d 944, 946–

47 (Tex. App.—Texarkana 2013, no pet.). Accordingly, Asberry asks that we modify the bill of

costs by deleting the language stating that attorney fees can be added later. 2 The State concedes

the point and agrees to the modification of the bill of costs. We sustain Asberry’s first point of

error.

         In his second point of error, Asberry argues that the judgment contains the incorrect date

of offense. Because a judgment nunc pro tunc recently filed with this Court has corrected the

issue, we overrule Asberry’s last point of error.




2
 “Court costs, as reflected in a certified bill of costs, need neither be orally pronounced nor incorporated by reference
in the judgment to be effective.” Armstrong, 340 S.W.3d at 766.
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      We modify the bill of costs by deleting the language stating, “COURT APPOINTED

ATTORNEY FEES MAY BE ADDED AT A LATER DATE,” and affirm the trial court’s

judgment.



                                      Josh R. Morriss, III
                                      Chief Justice

Date Submitted:    March 5, 2020
Date Decided:      March 6, 2020

Do Not Publish




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