      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-10-00343-CR




                               Billy Durand Watkins, Appellant

                                                v.

                                  The State of Texas, Appellee



      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
          NO. 63931, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                            MEMORANDUM OPINION


               In June 2009, appellant Billy Durand Watkins was placed on deferred adjudication

community supervision after he pleaded guilty to aggravated assault with serious bodily injury. See

Tex. Penal Code Ann. § 22.02 (West Supp. 2010). The State later filed a motion to adjudicate,

which was granted following a hearing. The trial court adjudged appellant guilty and imposed a

sentence of seventeen years’ imprisonment.

               Appellant’s sole contention on appeal is that the evidence does not support the trial

court’s order that he repay $2040 in appointed attorney’s fees upon release. See Mayer v. State,

309 S.W.3d 552, 556 (Tex. Crim. App. 2010) (holding that order to reimburse cost of appointed
attorney must be supported by evidence of defendant’s ability to pay).1 The State concedes error and

agrees that the judgment of conviction should be modified to delete the order. See id. at 557.

               We agree that the evidence is legally insufficient to prove that appellant is able to pay

the ordered attorney’s fees. The judgment is modified to delete the order that appellant pay $2040 in

attorney’s fees upon release. As modified, the judgment of conviction is affirmed.




                                               __________________________________________

                                               Jan P. Patterson, Justice

Before Justices Patterson, Pemberton and Henson

Modified and, as Modified, Affirmed

Filed: November 16, 2010

Do Not Publish




   1
     Appellant asserts that the evidence is factually insufficient. Factual sufficiency review is no
longer employed in criminal appeals. Brooks v. State, No. PD-0210-09, 2010 Tex. Crim. App.
LEXIS 1240, at *57 (Tex. Crim. App. Oct. 6, 2010). Given his reliance on Mayer, it is clear that
appellant is actually challenging the legal sufficiency of the evidence.

                                                  2
