                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo
                                  ________________________

                                       No. 07-13-00346-CR
                                  ________________________

            AARON DATHAN DAVIS AKA AARON NATHAN DAVIS, APPELLANT

                                                   V.

                               THE STATE OF TEXAS, APPELLEE



                              On Appeal from the 181st District Court
                                       Potter County, Texas
                    Trial Court No. 65,984-B; Honorable John Board, Presiding


                                             June 23, 2014

                                 MEMORANDUM OPINION
                      Before CAMPBELL and HANCOCK and PIRTLE, JJ.


        Following a plea of not guilty, Appellant, Aaron Dathan Davis aka Aaron Nathan

Davis, was convicted by a jury of assault against a public servant, enhanced, and

sentenced to eight years confinement.1               By two issues, Appellant challenges the

        1
         See TEX. PENAL CODE ANN. ' 22.01(b)(1) (West Supp. 2013). Although the offense is a third
degree felony, the range of punishment for the offense was enhanced to that of a second degree felony
because Appellant had been previously convicted of a felony other than a state jail felony. Id. ' 12.42(a)
(West Supp. 2013).
sufficiency of the evidence to sustain court-appointed attorney’s fees in the sum of

$4,436.00 and investigator’s fees in the sum of $1,056.25.                  The State agrees with

Appellant’s contentions and concedes the judgment should be modified to delete both

sums.


        It is well established that in order to assess the “cost of legal services provided,

including any expenses and costs,” a trial court must determine that the defendant has

financial resources that enable him to offset in part or in whole those costs. See TEX.

CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2013); Mayer v. State, 309 S.W.3d

552, 555-56 (Tex. Crim. App. 2010). Additionally, article 26.05(h) of the Code provides

for reimbursement of expenses incurred for a private investigator appointed and

approved by the trial court. See art. 26.05(h). In Martin v. State, 405 S.W.3d 944, 948

(Tex. App.—Texarkana 2013, no pet.), the court determined that the cost of a court-

appointed investigator is a cost of provision of a defendant’s constitutionally mandated

defense.     In the absence of a legislative mandate, that cost may not be assessed

against a defendant without a finding by the trial court of ability to pay. Id.


        Here, Appellant argues, and the State agrees, there is no factual basis in the

record to support an assessment against Appellant of $4,436.00 for attorney’s fees or

$1,056.25 for investigator fees.2 We sustain Appellant’s two issues.




__________________________
        2
          Although the Bill of Cost reflects “Attorney Fee(s) – Original Plea Agreement,” the State notes
Appellant entered a not guilty plea so there was no “Original Plea Agreement.”

                                                   2
                                    CONCLUSION


      Accordingly, we modify the trial court’s judgment to delete any obligation to pay

the “Investigator Fees” of $1,056.25 and “Attorney Fee(s)” of $4,436.00, and we order

the preparation of an amended Bill of Cost. As modified, the trial court’s judgment is

affirmed.


                                              Patrick A. Pirtle
                                                  Justice


Do not publish.




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