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

No. 06

- 13

- 00187

- CR

ROY EDWARD SMITH, Appellant
V. THE STATE OF TEXAS, Appellee

On Appeal from the 4th District Court Rusk County, Texas Trial Court No. CR 13

- 002

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter2 

### MEMORANDUM OPINION Roy Edward Smith was convicted of retaliation , and the trial court sentenced Smith to twenty years’ confinement. 1 On appeal, Smith challenges only the trial court’s assessment of attorney’s fees against him . The State concedes error, and we agree; consequently, we will modify the trial court’s judgment by delet ing the assessment of attorney’s fees against Smith . In all other respects, the trial court’s judgment is affirmed

. Article 26.05(g) of the Texas Code of Criminal Procedure governs the assessment of

co urt

- appointed attorney ’ s fees. T EX
. C ODE C RIM
. P ROC
. A NN
. a rt. 26.05(g) (West Supp. 201 3 ). A trial court ’ s authority to order a defendant to repay the cost of court

- appointed counsel depends upon the court ’ s determination that “ the defendant has financia l resources that enable him to offset in part or in whole the costs of legal services provided. ” Id

. Once an accused is found to be indigent, he is presumed to remain so through the proceedings absent proof of a material change in his circumstances. T EX
. C ODE C RIM
. P ROC
. A NN
. art. 26.04(p) (West Supp. 2013). Accordingly, to require a defendant to repay court

- appointed attorney ’ s fees, the State must present evidence that the defendant ’ s financial circumstances have materially changed since the court ’ s i nitial finding of indigence and that the defendant is now capable of paying some or all of those fees. See Mayer v. State , 309 S.W.3d 552, 55 7 (Tex. Crim. App. 2010) ( striking order to pay attorney fees where defendant found indigent and qualified for cou rt

appointed attorney at trial and on appeal). When evidence does not support a court ’ s order to pay atto rney’s fees, the proper remedy is to delete the order. Id. at 557.

1 Retaliation is a third degree felony. T EX
. P ENAL C ODE A NN
. § 36.06(c) (West 2011). The State also alleged and proved a prior felony conviction. T EX
. P ENAL C ODE A NN
. § 12.42(a) (West Supp. 2013).3 The record shows Smith applied for court

- appointed counsel shortly after being indicted.
T he sworn request states that Smith was “ unemployed, without income or assets. ” The trial court, without specifically finding Smith indigent, appointed counsel. Viewing the record as a whole, including the State’s concession, we will treat the trial court’s appointment of counsel as

a n implied finding of indigence. There is nothing in the record demonstra ting a “material change in [Smith’s] financial circumstances” ; as a result, the presum ption that Smith remain indigent was never rebutted

. See T EX
. C ODE C RIM
. P ROC
. A NN
. a rt. 26.04(p). There is no evidence in the record to support a determination that Smith can pay some or all of the assessed attorney ’s fees; therefore , the correct remedy is to modify the trial court’s judgment by deleting t he unsupported
assessment. We modify the trial court’s judgment to delete the a ssessment of $400.00 for attorney’s fees. As modified , the trial court’s judgment is affirmed.

Jack Carter Justice Date Submitted: May 20, 2014 Date Decided: June 6 , 2014 Do Not Publish