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

No. 06

- 22

- 00043

- CR

ROBIN FERGUSON , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 124th District Court Gregg County, Texas Trial Court No. 49501

- B

Before Mo rriss, C.J., Stevens and van Cleef , JJ. Memorandum Opinion by Justice van Cleef2 

### ME MORANDUM OPINION Robin Ferguson pled guilty to endangering a child. Pur suant to a plea bargain agreement with the State, Ferguson was placed on deferred adjudication community supervision for four years and was ordered to pay a $1,000.00 fine, court costs, and $1,275.00 in attorney fees for
court

- appointed counsel

. The State subsequently moved to adjudicate Ferguson’s guilt on the ground that she violated the terms a nd conditions of her community supervision. The trial court found the State’s allegations true ; adjudicated Ferguson’s guilt ; sentenced her to eighteen months’ confinement in state jail ; and ordered her to pay a $1,000.00 fine, $470.00 in court
cost s, and $1,700.00 in attorney fees. On appeal, Ferguson argues that the trial court miscalculated the jail

- time credit that she was owed and erred in its assessment of the fine, court costs, and attorney fees since she is indigent . Because the State co ncedes that Ferguson is entitled to addition al jail

- time credit, we sustain Ferguson’s first issue and modify the trial court’s judgment to reflect the proper amount of jail

- time credit owed. While we find that Ferguson’s indigence did not prevent the t ri al c our t fro m assessing fines and court cost s, we modify the judgment and bill of costs by deleting both a $15.00 time payment fee and the additional $425.00 in attorney fees for court

- appointed counsel during the adjudication proceedings. As modified, we aff irm the trial court’s judgment. I. We Modify the Judgment to Reflect the Proper Amount of Jail - Time Credit Owed After announcing Ferguson’s sentence and award of jail

- time credit, the trial court stated ,

“ According to our jail records, you ha ve credit from F ebruar y 28th to April 19th, 2019; from August 16th, 2019, to February 27th, 2020; and then you ’ ve been back in custody since October3

the 19th of last year. That ’ s 373 days. ” Even so, the trial court’ s judgment reflected jail

- time credit of only 23 8 days. As a result, Ferguson argues that she is entitled to the full 373 days of jail

- time credit. The State concedes the issue. Our appellate record shows that Ferguson was entitled to and was awarded 373 days of jail

- time credit i n open court
. “Whe never a defen dant can show indisputably that [s] he has been denied jail

- time credit,” s he is entitled to relief. In re Brown , 343 S.W.3d 803, 805 (Tex. Crim. App. 2011) (per curiam) (orig. proceedin g); see T EX
. C ODE C RIM
. P ROC
. A NN
. art
. 42.0 3, § 2(a)(1) (Supp.)

. Acco rdingly, we sustain Ferguson’s first point of error. “We have the authority to modify the judgment to make the record speak the truth.” Minter v. State , 570 S.W.3d 941, 944 (Tex. App.

— Texarkana 2019, no pe t.) (citing T EX
. R. A P P
. P. 4 3.2(b ); Fren ch v. St ate , 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State , 299 S.W.3d 349, 356 (Tex. App.

— Texarkana 2009, no pet.)). We modify the trial court’ s judgment to reflect that Ferguson was awarded 373 days of jail

- time credit. II. We Del ete $42 5.00 i n Attorney Fees and the Time Payment Fee from the Judgment In her last point of error, Ferguson argues that the trial court erred by assessing a fin e, court costs, and attorney fees against her because she is indigent. The Sta te argues that Ferguso n’s in digency does not excuse her from paying a fine a nd court costs, and we agree. However, we delete the improper assessment of a time payment fee from t he total amount of court costs owed. Because the Sta te concedes that Ferguson was indigent a nd shou ld not have been assessed attorney fees for the adjudication, we also delete $425.00 in attorney fees.4

A. Ferguson’s I ndigence D id N ot P revent the T rial C ourt from A ssessing a F ine It is undisputed that Fergu son was indigent. As a re sult, she argu es that the tr ial court’s fine was improperly assessed. We disagree. Fines are punitive and t he punishment statute does not exclude indigent defendants from the optional fine. See T EX
. P ENAL C ODE A NN
. § 12. 35 ( b )

. Even so, citing to Arti cle 43.091 of the Tex as Code of Criminal Procedure, Ferguson argues that “ [a] court may waive payment of all or part of a fine imposed on a defendant if the court determines that

. . . the defendant is indigent or does not have s ufficient resources or income to pay all or part of the fine

. ” T EX
. C ODE C RIM
. P ROC
. A NN
. art. 4 3 .091(a)(1) (Supp.) ( e mphasis a dded)

. While a trial court may waive payment under Section 43.091, nothing suggests that it is required to do so. We note th at A rticle 42.15(a

- 1) of the Texa s Code of Crimin al Procedure requires that ,

“ during or immediately after imposing a sentence in a case , ” the trial court “shall inquire whether the defendant has sufficient resources or income to immediat ely pay all or part of the fine.” T EX
. C ODE C RIM
. P ROC
. A NN
. art. 4 2.15(a

- 1). The trial court’s judgment recites the following: “ After having conducted an inquiry into Defendant’s ability to pay, the Court ORDERS Defendant to pay the fines, court costs, [and] reimbursement fees. ” This recital shows that the tria l court conducted an inquiry into Fer guson’s ability to pay because “ [r] ecitals contain ed in a judgment create a presumption of regularity and truthfulness, absent an affirmative showing to the

c ontrary.” Simms v. State , 848 S. W.2d 754, 756 (Tex. App.

— Hou ston [1 st Dist. ] 1993, pet.5

ref ’ d) (c iting Breazeale v. State , 683 S.W.2d 446, 450

– 51 (Tex. Crim. App. 1985) (op. on reh ’ g ) ). 1 Here, the record showed that Ferguson agreed to pay a $1,000.00 fine as a term of her deferred a djudication community superv ision a nd testified that she could su ccessfully complete her community supervision. At the adjudication hearing, Ferguson testified that she had several jobs, was employed “the whole, entire tim e” she was on community supervisi on, and had already paid $1, 800.00 towards fines and fees. Becau se Ferguson does not point to any evidence contradicting the judgment ’s recital , Ferguson has not overcome the presumption of regularity

. See Breazeale , 683 S.W.2d at 451

. As a result, we fi nd that the trial court inq uired i nto Ferguson’s ability to pay t he fine but determined that waiver of payment under Section 43.091 was unnecessary. We overrule Ferguson’s arguments related to the fine. B. Assess ment of Court Costs, Except for the Time Payment Fee , Was Proper Next , Fergu son argues that she s hould not be require d to pay court costs because she is indigent . “ The Due Process Clause of the United States Constitution prohibits a state from denying, solely be cause of inability to pay, access to its courts.” Allen v. St ate , 42 6 S.W.3d 253, 258 (Tex. App.

— Te xarkana 2013, no pet.) (citing Boddie v. Connecticut , 401 U .S. 371, 374 (1971); Griffin v. Illinois , 351 U.S. 12, 18 (1956)). “This does not mean, though, that court costs cannot be recovere d.” Id. “The Constitution only p rohibits the requirement for pr epayment or payment in advance, which effectively denies ap pellate review.” Id. (citing Boddie , 401 U.S. at

1 The burden is on the de fendant to overcome this presumption. Ex parte Wilson , 716 S.W.2d 953, 956 (Tex. Crim. App. 1986).6

374; Griffin , 351 U.S. at 18). Accordingly , th is Court has previously determined that “a trial court can ord er an i ndigent defendant to pay court costs provided payment is not demanded before the trial cou rt proceedings have concluded.” Id. at 259 ; see Martin v. State , 405 S.W.3d 944, 947 (Tex. App.

— Texarkana 2013, no pet.)

. 2 We find that the trial court’s ass essment of court costs was proper. Y et, t he trial court’ s judgment and bill of costs include a $15.00 time payment reimbursement fee. See T EX
. C ODE C RIM
. P ROC
. A NN
. art. 102.030 (Supp.)

. Th e Texas Court of Criminal Appeals h as concluded that a time pay ment fe e , like the one imposed here , “must inde ed be struck for bei ng prematurely assessed because a defendant’s appeal suspends the duty to pay court costs and therefore suspends the running o f the clock for the purposes of the t ime payment fee.” Dulin v . State , 620 S.W.3d 129, 129 (Tex. Crim. App. 2 021). “As a consequ ence, even now, assessment of the time payment fee in this case would be premature because appellate proceedings are still pen ding.” Id

. This Court has the auth ority to modify incorrect judgmen ts when it has the information necessary to do so. See T EX
. R. A PP
. P. 43.2(b); Bigley v. State , 865 S.W.2d 26, 27

– 28 (Tex. Crim. App. 1993); Rhoten v. State , 299 S.W.3d 349, 356 (Tex. App.

— Texarkana 2009, no pet.). Pursu ant to Dulin , we strike th e $15.0 0 time payment fee “in [its] entirety, w ithout prejudice to [it] being assessed later if, more than 30 days after the issuance of the appellate mandate, the

2 Ferguson cites to Section 43.091(c), which allows a trial court to wa ive “payment of all or part of the costs imposed on a d efendan t if the cour t determine s that the defendant

. . . i s indigent or does not h ave sufficient resources or income to pay all or part of the costs.” T EX
. C ODE C RIM
. P ROC
. A NN
. art. 43.091(c)(1) (S upp.) . Again , nothing requires the trial court, which included a recital th a t it had i nquired into Ferguson’s ability to pay court costs in the ju dgment, to waive costs

.7

defendant has failed to compl etely pay any fine, [or] court costs” owed. Dulin , 620 S.W.3d at 133

. C. We Delet e $425.00 in Attorney Fe es from the Judgment and Bill of Costs Pursuant to the terms of Ferguson’s negotiated plea bargain agreement with the State, b oth the order placin g Ferguson on deferred adjudication a nd the terms of Ferguson’s communi ty supervision required her to pay $1,2 75.00 in attorney fees for court

- appointed counsel. Ferguson was found indigent and was appointed counsel to repr esent her during the adjudicatio n proceeding . Absent proof of a mate rial change in her circumst ances, attorney fees should not have been asse ssed for services performed during the adjudication

. See T EX
. C ODE C RIM
. P ROC
. A NN
. arts. 26.04(p), 26.05(g) (Sup p.); Walker v. State , 557 S.W.3d 678, 689 (Tex. App.

— Texarkana 2018, pet. ref’d). Even so, the trial c ourt assessed an additional $ 425

. 0 0 in attorney fees against Ferguson

. Under Article 26.05(g) of the Texas Code of Criminal Procedure, a trial court has the authority to order the reim bursement of court

- appointed attorney fees only if “the judge de termine s that a defendant has financial resour ces that enable the defend ant to offset in part or in whole the costs of the legal services provided,

. . . including any expenses and costs.” T E X
. C ODE C RIM
. P ROC
. A NN
. art. 26.05(g ). “[T]he defendant’s fina ncial r esources and ability to pay are explicit criti cal elements in the trial court’s determination of the propriety of ordering reimbursement of costs and fees” of l egal services provided. Armstrong v. State , 340 S.W.3d 759, 7 65

– 66 (Tex. Crim. App. 2011 ) (quot ing Mayer v. State , 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)). Since there is no finding that Ferguson is able to pay them, the assessment of8

attorney fe es for counsel appointed duri ng the adjudication was erroneous. S ee Cates v. State , 402 S.W. 3d 250, 252 (Tex. Crim. App. 2013); see also Maye r , 309 S.W.3d 552; Martin v. State , 405 S.W.3d 944, 946

– 47 (Tex. App.

— Texarkana 2013, no pet.). As a result, we modify the trial court’s judg ment and the bill of costs by deletin g the additional assessment of $42 5.00 in attorney fees for the adjudication and to corr ectly reflect that the only amount of attorney fees due is the $1,2 75.00 fee that was assessed when Ferguson was placed on de ferred adjudication community supervision. III. Conclu sion We modify the tri al court’s judgment to reflect that Ferguson was awar ded 373 days of jail

- time credit

. We also modify both the trial court’s judgment and the bill of costs by deleting both the $15.00 time payment fee and the additional $425.00 in attorney fees a ssessed f or counsel appointed during the adjudication pro ceedi ngs. As modified, we affirm the trial court’s judgment.

Charles van Cleef Justice Date Submitted: September 6, 2 022 Date Decided: September 13 , 2022 Do Not Publish