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


                  No. 06-14-00155-CR



          BILLY WAYNE MARCY, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 6th District Court
               Red River County, Texas
               Trial Court No. CR01988




      Before Morriss, C.J., Moseley and Burgess, JJ.
        Memorandum Opinion by Justice Burgess
                                MEMORANDUM OPINION
       Billy Wayne Marcy was convicted by a jury of evading arrest or detention with a

previous conviction. He was sentenced to two years’ confinement in state jail and, although

indigent, was ordered to pay $2,475.00 in attorney fees for his court-appointed counsel. On

appeal, Marcy challenges only the trial court’s assessment of attorney fees against him. The

State concedes error, and we agree; consequently, we will modify the trial court’s judgment by

deleting the assessment of attorney fees against Marcy. In all other respects, we affirm the trial

court’s judgment.

       A claim of insufficient evidence to support the assessment of court costs and court-

appointed attorney fees is reviewable on direct appeal. Mayer v. State, 309 S.W.3d 552, 556

(Tex. Crim. App. 2010). 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) (West Supp. 2014). “‘[T]he 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’” for legal services provided. Armstrong v. State, 340

S.W.3d 759, 765–66 (Tex. Crim. App. 2011) (quoting Mayer, 309 S.W.3d at 556).

       The State concedes that Marcy is indigent and that the record is devoid of any

determination or finding by the trial court that he had financial resources or was otherwise able

to pay the appointed attorney fees. See Wiley v. State, 410 S.W.3d 313, 317 (Tex. Crim. App.


                                                 2
2013). Thus, the assessment of attorney fees was erroneous and should be removed. Cates v.

State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013); see Mayer, 309 S.W.3d 552; Martin v.

State, 405 S.W.3d 944, 946–47 (Tex. App.—Texarkana 2013, no pet.). Accordingly, we modify

the trial court’s judgment by deleting the attorney fees assessment from the judgment.

       We affirm the trial court’s judgment, as modified.



                                             Ralph K. Burgess
                                             Justice

Date Submitted:       January 20, 2015
Date Decided:         January 27, 2015

Do Not Publish




                                                3
