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

No. 06

- 15

- 00192

- CR

ROGER MARTIN BRADFORD, Appellant

V. THE STATE OF TEXAS, Appellee

On Appeal from the 71st District Court Harrison County, Texas Trial Court No. 15

- 0152X

Before Morriss, C.J., Moseley and Burgess, JJ. Memorandum Opinion by Chief Justice Morriss2 

### MEMORANDUM OPINION Roger Martin Bradford was convicted by jury of the third degree felony offense of driving
while intoxicated (DWI) , third or more, and was sentenced to four years’ confinement. S ee T EX
. P ENAL C ODE A NN
. § 49.09(b) ( West Supp. 201 6 ). Although we find it necessary to modify the judgment to delete the assessment of attorney fees, we otherwise affirm the trial court’s judgment because (1) there is no variance between the indictment and the court’s charge, and (2) t he County
Court at Law of Harrison County had authority to try Bradf ord’s case. (1) There Is No Variance Between the Indictment and the Court’s Charge Bradford was indicted on the charge of DWI, third or more, alleged to have occurred on or about March 4, 2015. The State thereafter filed a motion to amend the indictmen t to allege that the offense occurred on or about March 4, 2014. The trial court orally granted th at motion before trial. The original clerk’s record, however, did not include an amended indictment. Consequently, the record as originally presented to th is Court contained an indictment which did not track the charge of the court. 1 Thereafter, a supplemental clerk’s record was filed, which contained an interlined copy of the original indictment. The date of the offense was changed from March 4,
2015 , to March 4, 2014. There can be no question but that the indictment here properly tracks the charge of the court, and we find no error on th at basis. (2) The County Court at Law of Harrison County H ad Authority to T

ry Bradford’ s Case Bradford’s indictment was presented to the 71 st Judicial District Court of Harrison County, and the case proceeded to jury trial before the Honorable Joe Black, sitting for the 71 st Judicial

1 The court’s c harge instructed that the offense was alleged to have been committ ed on March 4, 2014.3

District Court. All pretrial matters were heard by the District Court as well. Howev er, the charge of the court, the verdict form, the punishment instructions, and the verdict on punishment all bear the heading of the County Court at Law of Harrison County, Texas . These documents are all signed by Judge Joe Black. The j udgment of convic tion emanated from the 71 st Judicial District
C ourt of Harrison County and was signed by Judge Black. To the extent Bradford takes issue with the authority of the County Court at Law of Harrison County to sit for the 71 st Judicial District Court, we fin d no error. The County Court at
Law of Harrison County has concurrent jurisdiction with the 71 st Judicial District Court in felony cases other than capital murder cases. T EX
. G OV ’ T C ODE A NN
. § 25.1042(a)(2) ( West Supp. 2016). In matters of concurrent ju risdiction, the judge of the County Court at Law may be assigned a felony case, other than a capital murder case, by the 71 st Judicial District Court. T EX
. G OV ’ T C ODE A NN
. § 25.1042 (b) (West Supp. 2016) . In any event, Bradford failed to object to the ex change of benches in this case, so any complaint regarding the lack of an assignment authorizing the exchange has not been preserved for our review. 2 Finally, to the extent that Bradford takes issue with the case style on the court’s charge,
verdict for m, punishment instructions , and verdict on punishment, such complaint lacks merit. It is apparent that the County Court at Law j udge presided over Bradford’s trial in the stead of the
71 st Judicial District Court judge. We find the heading of the County Court at Law of Harrison County , Texas, on the referenced docum ents is merely a clerical error and is therefore harmless.

2 We are not presented with any issue concerning a lack of jurisdiction of the convicting court. Instead, any alleged error involves statutory procedure.4

(3) Modification of the Judgment Bradford challenges the trial court’s assessment of attorney fees against him, as an indigent defendant, 3 in the amount of $2,067.75. We agree and modify the judgment by delet ing the award of attorney fees.
Court

- appointed attorney fees cannot be assessed against an indigent defendant unless there is proof and a finding that he or she is no long er indigent. Cates v. State , 402 S.W.3d 250 (Tex. Crim. App. 2013); Mayer v. State , 3 0 9 S.W.3d 552 (Tex. Crim. App. 2010). In this case, there is no such evidence or finding. The trial court thus erred by assessing attorney fees against Bradford. The pro per remedy is to modify the judgment and remove the fee award. Cates , 402 S.W.3d at 252; Martin v. State , 405 S.W.3d 944, 947 (Tex. App.

— Texarkana 2013, no pet.). We , therefore , modify the judgment of the trial court by delet ing the fees for Bradford’s co urt

- appointed attorney. We affirm the trial court’s judgment, as modified.

Josh R. Morriss, III Chief Justice
Date Submitted: October 24, 2016 Date Decided: Novem ber 2 , 2016
Do Not Publish

3 Bradford was determined to be indigent i n the trial court.