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 Morriss, C.J., Stevens and van Cleef, JJ.

Memorandum Opinion by Justice van Cleef
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MEMORANDUM OPINION

Robin Ferguson pled guilty to endangering a child. Pursuant 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 and 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 

costs, 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 concedes that Ferguson is entitled to additional 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 trial court 

from assessing fines and court costs, 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 affirm 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 have credit from February 28th to April 19th, 2019; from

August 16th, 2019, to February 27th, 2020; and then you’ve been back in custody since October 
3

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

credit of only 238 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 in open court. “Whenever a defendant can show indisputably that [s]he has been 

denied jail-time credit,” she is entitled to relief. In re Brown, 343 S.W.3d 803, 805 (Tex. Crim. 

App. 2011) (per curiam) (orig. proceeding); see TEX. CODE CRIM. PROC. ANN. art. 42.03, 

§ 2(a)(1) (Supp.). Accordingly, 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 pet.) (citing TEX. R. APP.

P. 43.2(b); French v. State, 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 Delete $425.00 in 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 fine, 

court costs, and attorney fees against her because she is indigent. The State argues that 

Ferguson’s indigency does not excuse her from paying a fine and court costs, and we agree. 

However, we delete the improper assessment of a time payment fee from the total amount of 

court costs owed. Because the State concedes that Ferguson was indigent and should not have 

been assessed attorney fees for the adjudication, we also delete $425.00 in attorney fees. 
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A. Ferguson’s Indigence Did Not Prevent the Trial Court from Assessing a Fine

It is undisputed that Ferguson was indigent. As a result, she argues that the trial court’s 

fine was improperly assessed. We disagree. 

Fines are punitive and the punishment statute does not exclude indigent defendants from 

the optional fine. See TEX. PENAL CODE ANN. § 12.35(b). Even so, citing to Article 43.091 of 

the Texas 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 sufficient resources or income to pay all or part of the fine.” TEX. CODE CRIM.

PROC. ANN. art. 43.091(a)(1) (Supp.) (emphasis added). While a trial court may waive payment 

under Section 43.091, nothing suggests that it is required to do so. 

We note that Article 42.15(a-1) of the Texas Code of Criminal 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 immediately pay all or part of the fine.” TEX.

CODE CRIM. PROC. ANN. art. 42.15(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 trial court

conducted an inquiry into Ferguson’s ability to pay because “[r]ecitals contained in a judgment 

create a presumption of regularity and truthfulness, absent an affirmative showing to the 

contrary.” Simms v. State, 848 S.W.2d 754, 756 (Tex. App.—Houston [1st Dist.] 1993, pet. 
5

ref’d) (citing 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 adjudication community supervision and testified that she could successfully complete 

her community supervision. At the adjudication hearing, Ferguson testified that she had several 

jobs, was employed “the whole, entire time” she was on community supervision, and had already 

paid $1,800.00 towards fines and fees. 

Because 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 find that the trial court inquired into Ferguson’s ability to pay the fine but 

determined that waiver of payment under Section 43.091 was unnecessary. We overrule 

Ferguson’s arguments related to the fine. 

B. Assessment of Court Costs, Except for the Time Payment Fee, Was Proper

Next, Ferguson argues that she should not be required to pay court costs because she is 

indigent. “The Due Process Clause of the United States Constitution prohibits a state from 

denying, solely because of inability to pay, access to its courts.” Allen v. State, 426 S.W.3d 253, 

258 (Tex. App.—Texarkana 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 recovered.” Id. “The Constitution only prohibits the requirement for prepayment or 

payment in advance, which effectively denies appellate review.” Id. (citing Boddie, 401 U.S. at 

1The burden is on the defendant to overcome this presumption. Ex parte Wilson, 716 S.W.2d 953, 956 (Tex. Crim. 

App. 1986).
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374; Griffin, 351 U.S. at 18). Accordingly, this Court has previously determined that “a trial 

court can order an indigent defendant to pay court costs provided payment is not demanded 

before the trial court 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 assessment of 

court costs was proper. 

Yet, the trial court’s judgment and bill of costs include a $15.00 time payment 

reimbursement fee. See TEX. CODE CRIM. PROC. ANN. art. 102.030 (Supp.). The Texas Court of 

Criminal Appeals has concluded that a time payment fee, like the one imposed here, “must 

indeed be struck for being prematurely assessed because a defendant’s appeal suspends the duty 

to pay court costs and therefore suspends the running of the clock for the purposes of the time 

payment fee.” Dulin v. State, 620 S.W.3d 129, 129 (Tex. Crim. App. 2021). “As a consequence, 

even now, assessment of the time payment fee in this case would be premature because appellate 

proceedings are still pending.” Id. 

This Court has the authority to modify incorrect judgments when it has the information 

necessary to do so. See TEX. R. APP. 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.). 

Pursuant to Dulin, we strike the $15.00 time payment fee “in [its] entirety, without prejudice to 

[it] being assessed later if, more than 30 days after the issuance of the appellate mandate, the 

2Ferguson cites to Section 43.091(c), which allows a trial court to waive “payment of all or part of the costs imposed 

on a defendant if the court determines that the defendant . . . is indigent or does not have sufficient resources or 

income to pay all or part of the costs.” TEX. CODE CRIM. PROC. ANN. art. 43.091(c)(1) (Supp.). Again, nothing 

requires the trial court, which included a recital that it had inquired into Ferguson’s ability to pay court costs in the 

judgment, to waive costs.
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defendant has failed to completely pay any fine, [or] court costs” owed. Dulin, 620 S.W.3d at 

133. 

C. We Delete $425.00 in Attorney Fees from the Judgment and Bill of Costs

Pursuant to the terms of Ferguson’s negotiated plea bargain agreement with the State, 

both the order placing Ferguson on deferred adjudication and the terms of Ferguson’s 

community supervision required her to pay $1,275.00 in attorney fees for court-appointed 

counsel. Ferguson was found indigent and was appointed counsel to represent her during the 

adjudication proceeding. Absent proof of a material change in her circumstances, attorney fees 

should not have been assessed for services performed during the adjudication. See TEX. CODE 

CRIM. PROC. ANN. arts. 26.04(p), 26.05(g) (Supp.); Walker v. State, 557 S.W.3d 678, 689 (Tex. 

App.—Texarkana 2018, pet. ref’d). Even so, the trial court assessed an additional $425.00 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 reimbursement of court-appointed attorney fees only if “the judge 

determines that a defendant has financial resources that enable the defendant to offset in part or 

in whole the costs of the legal services provided, . . . including any expenses and costs.” TEX.

CODE CRIM. PROC. ANN. art. 26.05(g). “[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” of legal services provided. Armstrong v. State, 340 S.W.3d 

759, 765–66 (Tex. Crim. App. 2011) (quoting 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 of 
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attorney fees for counsel appointed during the adjudication was erroneous. See Cates v. State, 

402 S.W.3d 250, 252 (Tex. Crim. App. 2013); see also Mayer, 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 judgment and the bill of costs by deleting the 

additional assessment of $425.00 in attorney fees for the adjudication and to correctly reflect that 

the only amount of attorney fees due is the $1,275.00 fee that was assessed when Ferguson was 

placed on deferred adjudication community supervision.

III. Conclusion 

We modify the trial court’s judgment to reflect that Ferguson was awarded 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 assessed for 

counsel appointed during the adjudication proceedings. As modified, we affirm the trial court’s 

judgment. 

Charles van Cleef

Justice

Date Submitted: September 6, 2022

Date Decided: September 13, 2022

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