Affirmed as Modified and Opinion Filed February 24, 2014 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-12-01677-CR MELVIN X. CELESTINE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the Crimin al District Court No. 2 Dallas County, Texas Trial Court Cause No. F08-61495-I


### OPINION Before Justices FitzGerald, Lang, and Fillmore Opinion by Justice FitzGerald Appellant Melvin X. Celestine pleaded nolo contendere to misdemeanor assault and was placed on community supervision. After he violat ed the terms of his community supervision, the trial judge adjudicated his guilt and sentenced him to eleven months in jail. Appellant appeals from the order adjudicating guilt. We reduce the assessment of court costs against appellant and affirm the judgment as modified.
I. B ACKGROUND In November 2008, appellant was indicted for third-degree-fel ony assault involving family violence. He entered into a plea agreemen t with the State and plead ed nolo contendere to class A misdemeanor assault. The plea agreemen t that appellant signed contains a judicial confession that he committed the offense of a ssault “exactly as alleged in the charging–2– instrument.” Appellant also si gned a separate judicial confe ssion that appears in the clerk’s record. On March 27, 2009, the trial judge signe d an order of deferred adjudication placing appellant on community supervision for one year. In that order, the judge ordered appellant to pay a fine of $500 and court cost s of $240. The judge also signed a separate certification that appellant waived th e right of appeal. On March 4, 2010, the State filed a motion to pr oceed to an adjudication of guilt in which the State alleged that appellant had violated seve ral conditions of his comm unity supervision. In December 2012, the trial judge heard the State’s motion, and appellant pleaded true and signed a judicial confession. The judge found appellant gu ilty of assault and sentenced him to eleven months’ confinement in the county jail. The judgment adjudicating gui lt assessed no fine and assessed court costs of $690. This appeal followed.
II. A NALYSIS Appellant raises two points of e rror in his principal brief on a ppeal. In his first point of error he complains about the lack of a reporter’s record from his plea hearing. In his second point of error he attacks the assessments of court co sts. We later granted appellant leave to file a supplemental brief in which he raises four suppl emental points of error re lating to court costs. A. Lack of record In his first point of error, appellant argues th at he is entitled to a new trial because no record was made of the March 27, 2009 hearing of his negotiated plea, or because the record has been lost or destroyed. On our own motion, we ordered the trial judge to make findings regarding the existence and status of any repor ter’s record of the March 27, 2009 hearing. The trial judge found that the hear ing was not recorded by a cour t reporter because this was a misdemeanor case and because misdemeanor cases are not reported on the record in the absence of a request from defense counsel . The judge then found that appe llant waived the recording of–3– the plea hearing “by failing to request that a court reporter be present to record the proceedings.” The judge further found “that no record was ma de on March 27, 2009 in regard to this case because no such record was requested. Th e notes of the March 27, 2009 hearing are not available and cannot be transcribed because they do not exist. Because the record was never made, the notes could not have been lost or destroyed.” The State contends that we lack jurisdiction over appellant’s first po int of error based on the rule of Manuel v. State : a defendant who is placed on deferred-adjudication community supervision may appeal issues relating to the or iginal plea proceeding only in an appeal taken when deferred adjudication is first impos ed. 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999). Appellant did not timely appeal after the rendition of the order of deferred adjudication in this case. Appellant acknowledges the Manuel rule but argues that his poi nt of error comes within the “void judgment” exception to the rule. See Nix v. State , 65 S.W.3d 664, 667–68 (Tex. Crim. App. 2001) (recognizing and explaining the vo id-judgment exception). Judgments are void “only in very rare situations.” Id . at 668. The Nix court identified four such situations: (1) the charging instrument was constitutionally defective, (2) lack of subject-matter jurisdiction in the trial court, (3) a complete lack of evidence to support the conviction, a nd (4) conviction of an indigent defendant without a ppointment of counsel or a waiver of such counsel. Id

. Nix permits appellant to argue on appeal that the original order of deferred adjudication was void. See id

. (“[W]e hold that the void judgment exception . . . applies in the deferred adjudication context.”). Appellant argues that the order of deferred adju dication is or may be void because it is supported by insufficient evidence. But insufficiency of the evidence is not a defect that makes a judgment void. “For the judgment to be void, the r ecord must show a complete lack of evidence to support the conviction, not merely insufficient evidence.” Id . at 668 n.14. Construing appellant’s contention as a no-evidence argument, we immediately confront the problem that the–4– absence of a reporter’s record from the plea proc eedings makes a no-evidence review impossible. Appellant cannot show the order of deferred adjudication is void on no-evidence grounds; the question becomes whether appellant can complain a bout the court reporter’s failure to transcribe the plea proceedings because that failure make s it impossible for him to mount a no-evidencevoidness challenge now.
Nix lights our way. In Nix , the defendant pleaded no contest to a misdemeanor and waived, in writing, his right to have the plea pr oceeding recorded by a court reporter. 65 S.W.3d at 666 & n.1. The defendant was placed on community supervision, violated the conditions of his community supervision, and was ultimately adjudicated guilty and sentenced to jail. Id . at 666. The defendant attempted to appeal after the adjudication of guilt, but the court of appeals dismissed the appeal for want of jurisdiction, and the court of crimin al appeals affirmed. Id . at 666–67. The court of criminal appeals’ anal ysis of the void-judgment exception to the Manuel rule is pertinent to the instant case: [F]or a judgment to be void, the record must leave no question about the existence of the fundamental defect. If the record is incomple te, and the missing portion could conceivably show that th e defect does not in fact exist, then the judgment is not void, even though the available portions of the record tend to support the existence of the defect. For example, when a defendant levels a “no evidence” challenge against the conviction, but th e record contains no court reporter’s transcription of the origin al plea hearing, then the conviction is not void, even though the record—as far as it goes—te nds to support the no evidence claim. “Without the transcription, we are unable to ascertain whether other evidence was introduced to support the appellant’s conviction.” Id . at 668–69 (footnotes omitted); see also Martinez v. State , 194 S.W.3d 699, 702–03 n.3 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (following Nix in case in which appellant waived court reporter at plea heari ng). We recently applied the Nix analysis in the case of Hamilton v.
State , No. 05-11-00772-CR, 2013 WL 485776 (Tex. App.—Dallas Fe b. 6, 2013, pet. ref’d) (mem. op., not designated for publication). We conclu ded that the absence of a reporter’s record from the plea proceedings barred the appellant’s belated contenti on that there was no evidence to–5– support the deferred-adjudication or der, without noting whether or not the appellant had waived the recording of those proceedings. Id . at *2. In the instant case, we have the trial judge’s affirmative fi nding that appellant waived the recording of his plea hearing by failing to request a court reporte r. We have held that a defendant must make a request for a court reporter to record a hearing in orde r to preserve error. Langford v. State , 129 S.W.3d 138, 139 (Tex. App.—Dallas 2003, no pet.); accord Satterfield v.
State , 367 S.W.3d 868, 871 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d); see also T EX
. G OV ’ T C ODE A NN . § 52.046(a) (West 2013) (providing that court reporters shall perform certain duties “[o]n request”). Appellant has not challenged the tr ial judge’s waiver fi nding, and there is no indication in the record that appellant made a request for a court repor ter to record the plea proceedings. Appellant points out that the plea agreement contains a box labeled “Defendant waives a court reporter” and that the box is not checked. Bu t evidence that appellant did not execute a written waiver of his right to a court re porter is no evidence that he actually requested a court reporter as was necessary to avoid waiver. See Langford , 129 S.W.3d at 139. Based on the trial judge’s uncha llenged finding, we conclude that appellant waived the right to have a court reporter reco rd his plea hearing. Accordingly, under Nix it is impossible for appellant to show that the order of deferred adjudication is void on no-evidence grounds. See
Nix , 65 S.W.3d at 668–69; see also Hamilton , 2013 WL 485776, at *2. Because appellant has failed to allege an error that could render th e order of deferred adjudication void, we cannot consider his first point of error. See Nix , 65 S.W.3d at 669; Manuel , 994 S.W.2d at 661–62. B. Costs In his second original point of error, appella nt complains that the award of court costs of $240 in the order of deferred adjudication and th e award of court costs of $690 in the judgment adjudicating guilt are suppor ted by insufficient evidence. In a supplemental brief, appellant also–6– raises several reply issues (four of which are also labeled “suppl emental points of error”) about the assessment of court costs. 1
1. Additional facts After appellant filed his opening brief in this appeal, the State requested the preparation of a supplemental clerk’s record containing additio nal documents relating to court costs. That record was filed in July 2013. A ppellant requested leave to file a supplemental brief to address the supplemental clerk’s record, which we granted. After appellant filed his supplemental brief, we issued an order directing the trial court cler k to prepare another supplemental clerk’s record containing a cost bill or other document sufficient to comply with the code of criminal procedure’s provisions about court costs. In November 2013, the clerk filed another supplemental clerk’s record in response to our order. The parties did not file any additional briefs after the filing of this la st supplemental clerk’s record. 2. Costs assessed in the ord er of deferred adjudication The State contends that appe llant cannot contest the $240 of court costs assessed against him in the order of deferred adjudication because any such contest had to be raised in a direct appeal from that order. We agree. Because appellant did not appeal the imposition of court costs when the deferred-adjudi cation order was rendered, his comp laints about those costs are untimely. See Wiley v. State , 410 S.W.3d 313, 320–21 (Tex. Crim. App. 2013); Williams v.
State , No. 05-12-00888-CR, 2013 WL 6157336, at *1 (Tex. App.—Dallas Nov. 21, 2013, no pet.) (mem. op., not designated for publication). The December 2012 judgment adjudicating gu ilt assesses court costs of $690. The supplemental clerk’s records reveal that the $450 increase consisted of a $400 attorney’s fee

1 This case is but one of many recent appeals in which we have b een “asked to engage in a function of auditing bills of costs.” Wolfe v. State , 377 S.W.3d 141, 148 n.1 (Tex. App.—A marillo 2012, no pet.) (Campbell, J., concurring and dissenting).–7– (because mathematically that amount could not have been part of the $240 originally assessed) and a $50 law-enforcement fee for the execution or processing of a capias (because the capias was not issued until March 2010, long after the rendition of the deferred-adjudication order). We can review appellant’s arguments only to the extent they relate to the $450 of court costs assessed for the first time in the judgmen t adjudicating guilt. Accordingly, we reject appellant’s reply issues five, si x, and seven, the first two of wh ich also serve as supplemental points of error three and four. 3. Bill of costs In appellant’s second point of error in his prin cipal brief, he argued that the trial judge’s assessments of court costs were supported by insufficient evidence because the record did not contain a bill of cost. That de fect has now been remedied. We reject appellant’s second point of

error. See Franklin v. State , 402 S.W.3d 894, 895 (Tex. App.—Dallas 2013, no pet.); see also Coronel v. State , No. 05-12-00493-CR, 2013 WL 3874446, at *4–6 (Tex. App.—Dallas July 29, 2013, pet. ref’d). In appellant’s first reply issu e, he contends that the July 2013 supplemental clerk’s record should not be considered in suppor t of the cost assessment because it was not properly before the trial judge. We rejected that argument in Coronel

. See Coronel , 2013 WL 3874446, at *4–6. In reply issue two, appellant argues that the documents contained in the July 2013 supplemental clerk’s record are too informal to satisfy the bill-of-cost requirement in the code of criminal procedure. This issue is mooted by the filing of the November 2013 supplemental clerk’s record, which contains docum ents that satisfy the formal requirements of the code of criminal pro cedure under our decision in Coronel

. See id

. 4. Sheriff’s fee In supplemental point of error one, which is al so reply issue three, appellant argues that the $690 cost assessment includes a $50 sheriff’s f ee that is not supported by the record. The–8– sheriff’s fee is authorized by bot h the government code and the code of criminal procedure. The government code provides: A person convicted of an offense sha ll pay the following under the Code of Criminal Procedure, in a ddition to all other costs:

. . . (3) fees for services of [a] peace officer:

. . . (B) executing or processing an issued arre st warrant, capias, or capias pro fine (Art. 102.011, Code of Criminal Procedure) . . . $50[.]
T EX
. G OV ’ T C ODE A NN . § 102.021(3)(B) (West Supp. 2013). Article 102.011 of the code of criminal procedure adds certain prerequi sites for the assessment of that fee: (a) A defendant convicted of a felony or a misdemeanor shall pay the following fees for services performed in the case by a peace officer:

. . . (2) $50 for executing or processing an issued arrest warrant, capias, or capias pro fine with the fee imposed for the services of: (A) the law enforcement agency that execu ted the arrest warrant or capias, if the agency requests of the court, not la ter than the 15th day after the date of the execution of the arrest warrant or capias, the impos ition of the fee on conviction; or (B) the law enforcement agency that pro cessed the arrest warra nt or capias, if: (i) the arrest warrant or capias was not executed; or (ii) the executing law enforcement agency failed to request the fee within the period required by Paragra ph (A) of this subdivision[.] T EX
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. A NN . art. 102.011(a)(2) (West Supp. 2013). In this case, the July 2013 supplemental clerk’s record contains a copy of a capias that states that it was returned on November 30, 2012. But, appellant points out, the sh eriff’s return on that capias has a space for “Fees,” and that space was left blank. Appella nt concludes that the $50 assessment must be reversed because there is no indication the sheriff actually requested the fee.–9– We conclude that the statutes do not require an affirmative request for the fee by the sheriff on the facts of this case, and so we re ject appellant’s argument. Article 102.011(a)(2)(A) requires a timely request for the fee only if the f ee is sought by the agency that executed a capias; absent such a request, the fee defaults to the agency that processed the capias. See id . The “sheriff’s return” portion of the capias was completed by someone whose signature is illegible but who added the words “Dallas P.D.” after his or her signature. Thus, the record indicates that the Dallas County Sheriff’s Department di d not execute the capias—the Dallas Police Department did. The capias was issued in Dall as County and addressed to “any Sheriff or any Constable of the State of Texas, ” giving rise to an inference th at the Sheriff’s Department did process the capias. Because article 102.011(a)(2 )(B) does not require a request for the $50 fee by the processing law enforcement agency, the ab sence of evidence of a request by the Dallas County Sheriff’s Department is immaterial. For these reasons, we conclude the record ad equately supports the assessment of the $50
fee under article 102.011(a)(2)(B)(ii). 5. Attorney’s fees In supplemental point of error two, which is also reply issue four, appellant argues that the $690 cost assessment includes $4 00 in attorney’s fees that must be delete d for lack of support in the record. The trial judge has the discretiona ry authority to order a defendant to reimburse the government for an appointed attorney’s fees when the defendant has the financial resources to repay all or part of the cost of the legal services provided. Cortez v. State , No. 05-12-01319- CR, 2013 WL 5969564, at *1 (Tex. App.—Dallas Nov. 7, 2013, no pet.) (mem. op., not designated for publication); see also T EX
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. A NN . art. 26.05(g) (West Supp. 2013). “[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.”–10– Mayer v. State , 309 S.W.3d 552, 556 (Tex. Crim. App. 2010) . Thus, before a trial judge can assess attorney’s fees as costs under article 26.05(g), the judge must determine that the defendant possesses the necessary financial resources, and th e record must show some factual basis to support that determination. Youkers v. State , 400 S.W.3d 200, 212 (Tex. App.—Dallas 2013, pet. ref’d); see also Cates v. State , 402 S.W.3d 250, 251–52 (Tex. Crim. App. 2013). Moreover, a defendant who is determined to be indigent is presumed to remain indigent for the remainder of the proceedings unless a material change in th e defendant’s financial circumstances occurs.
Cates , 402 S.W.3d at 251. In this case, the trial judge found that a ppellant was indigent at the outset of the proceedings and appointed counsel for him, ev en though appellant swore in his affidavit of indigence that his total monthl y income was $1,000. After the State filed its motion to proceed to adjudication of guilt, appellan t filed a sworn request for appoint ed counsel in which appellant averred that he had no income and no assets. The trial judge again found appellant indigent and appointed counsel for him. After rendering the j udgment adjudicating guilt, the trial judge again found appellant indigent and appointed appellate counsel for him. The judge never made a finding that appellant was able to repay any part of the costs of his court-appointed attorney. Thus, the record supports appellant’s contention that the assessment of attorney’s fees was

erroneous. The State argues that the asse ssment of attorney’s fees is supported by appellant’s averment in his original affida vit of indigence that he had a monthly income of $1,000. The
State contends that this was some evidence that appellant had financial resources that enabled him to offset, in whole or in part, the cost of his attorney’s legal servic es. But the trial judge never made a judicial finding to that effect, an d the judge made several contrary findings that appellant was indigent and unable to employ couns el. If a defendant has been found indigent–11– and there is no judicial finding th at the defendant is able to re pay the costs of court-appointed counsel, no attorney’s fee can be assessed against the defendant. Id . at 251–52. Because there is no such finding in the record, the assessment of the attorney’s fee was erroneous. We sustain appellant’s issue and reduce the assessment of co sts by $400, the amount shown in the cost bill
to be attributable to the “c ourt appointed attorney fee.”
III. C ONCLUSION We reduce the assessment of court costs agains t appellant to $290. As modified, the trial court’s judgment is affirmed.

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MELVIN X. CELESTINE, Appellant No. 05-12-01677-CR V. THE STATE OF TEXAS, Appellee On Appeal from the Criminal District Court No. 2, Dallas County, Texas Trial Court Cause No. F08-61495-I. Opinion delivered by Justice FitzGerald. Justices Lang and Fillmore participating.
Based on the Court’s opin ion of this date, we MODIFY the judgment of the trial court by reducing the assessment of court costs from $690 to $290. As REFORMED , the judgment is AFFIRMED

. Judgment entered February 24, 2014

/Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE