MODIFY, REFORM, and AFFIRM; and Opinion Filed May 8, 2013.




                                         S  In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                      No. 05-11-00447-CR

                           JAMES ADAM TAWWATER, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                       On Appeal from the County Court at Law No. 4
                                   Collin County, Texas
                           Trial Court Cause No. 004-86639-10

                               MEMORANDUM OPINION
                       Before Justices Lang-Miers, Murphy, and Fillmore
                                   Opinion by Justice Murphy
       James Adam Tawwater was convicted of driving while intoxicated, and the trial court

assessed punishment at ninety days’ confinement. See TEX. PENAL CODE ANN. § 49.04 (West

Supp. 2012). In a single point of error, Tawwater argues the trial court abused its discretion by

assessing court-appointed attorney’s fees against him as court costs. We modify the judgment to

delete the award of attorney’s fees and affirm the judgment as modified.

       Before Tawwater’s trial, the trial court found him to be indigent. The trial court’s

judgment, however, included an order “that the cost to Collin County for the payment of this

defendant’s court-appointed attorney, if any, is taxed against this defendant as court costs. The

county clerk is granted leave to amend the court costs to reflect this amount without the necessity

of a further order.” Tawwater argues, and the State agrees, the trial court abused its discretion in

assessing court-appointed attorney’s fees.
       Once a trial court finds a criminal defendant to be indigent, the defendant is presumed to

remain indigent for the remainder of the proceedings unless a material change in the defendant’s

financial resources occurs. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2012).

For the trial court to assess attorney’s fees, it must determine the defendant has the financial

resources that enable the court to offset those costs. Id. art. 26.05(g); see also Mayer v. State,

309 S.W.3d 552, 556 (Tex. Crim. App. 2010). The record also must show 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.).

       The record contains no evidence supporting the trial court’s assessment of attorney’s fees

against Tawwater. See Mayer, 309 S.W.3d at 556. When the evidence does not support the

assessment of attorney’s fees as court costs, the proper remedy is to modify the judgment to

delete the requirement. Id. at 557. We therefore modify the trial court’s judgment by deleting

the assessment of attorney’s fees against Tawwater and affirm the judgment as modified.




                                                     /Mary Murphy/
                                                     MARY MURPHY
                                                     JUSTICE

Do Not Publish
TEX. R. APP. P. 47

110447F.U05




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

JAMES ADAM TAWWATER, Appellant                      On Appeal from the County Court at Law
                                                    No. 4, Collin County, Texas
No. 05-11-00447-CR         V.                       Trial Court Cause No. 004-86639-10.
                                                    Opinion delivered by Justice Murphy.
THE STATE OF TEXAS, Appellee                        Justices Lang-Miers and Fillmore
                                                    participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       The paragraph of the judgment that states:

       It is further ordered that the cost to Collin County for the payment of this
       defendant’s court-appointed attorney, if any, is taxed against this defendant as
       court costs. The county clerk is granted leave to amend the court costs to reflect
       this amount without the necessity of a further order.

       is DELETED from the judgment.

As REFORMED, the judgment is AFFIRMED.

Judgment entered this 8th day of May, 2013.




                                                    /Mary Murphy/
                                                    MARY MURPHY
                                                    JUSTICE




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