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

_______________________________

06

- 20

- 00019

- CR

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DAVID SHARPE , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 349th District Court Houston County, Texas Trial Court No. 19CR

- 112

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

### O P I N I O N A Houston County 1 jury convicted David Sharpe of injury to an elderly person . Sharpe

was assessed a fine of $5,000 .00 and sentence d to ten years in prison, the sentence was suspended , and Sharpe was placed on community supervision. The judgment also ordered Sharpe to rei mburse Houston County for the fees paid to his court

- appointed counsel. On appeal, Sharpe argues that the trial court erred by ordering him to repay the county for the fees for his court

- appointed counsel. We sustain Sharpe’s point of error, modify the j udgment by delet ing the assessment of attorney fees, and affirm the judgment , as modified.
T he court’s order imposing conditions of community supervision 2 order ed Sharpe to pay, in “60 monthly installments,” an unspecified amount of attorney fees to reimburse Houston County for “all Court

- appointed Attorney fees ordered by the Court.”
A trial court has the authority to order the reimbursement of court

- appointed attorney f ees 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

. . . . ” T EX
. C ODE C RIM
. P ROC
. A NN
. art. 26. 05(g) (Supp.). “ A defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant ’ s financial circumstances occurs. ” T EX
. C ODE C RIM
. P ROC
. A NN
. art. 26.0 4 ( p ) (Supp.)

. “ [T]he defendant ’ s financial resources and ability to pay

1 This case was transferred to this Court from the Twelfth Court of Appeals in Tyler as part of the Texas Supreme Court’s docket equalization program. We are not aware of any conflict between the precedent of the Tyler c ourt and the precedent of this Court on any issue relevant in this appeal. See T EX
. R. A PP
. P. 41.3.

2 See T EX
. C ODE C RIM
. P ROC
. A NN
. art . 42A.301(b)(11) (Supp.) (community supervision terms condition ed like general rule )

.3

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)). There is authority that can be interpreted to rule that an indigent defendant’s failure to object to the assessment of attorney fees at trial forfeits the right to object on appeal if he also received community supervision and knew of the fee assessment in time to object to the trial court. See, e.g. , Henry v. State , No. 12

- 18

- 00139

- CR, 2019 WL 141382, at *3 (Tex. App.

— Tyler Jan. 9, 2019 , no pet. ) ( mem. op., not designated for publication) ( no indication that judgment also assessed attorney fees) . But we believe we are bound by the 2013 decision in Wiley v. State

. See Wiley v.
State , 410 S. W.3d 313 (Tex. Crim. App. 2013). Wiley stated that an indigent criminal defendant may complain about the assessment of attorney fees for the first time on appeal, unless they were assessed only in the terms of the “contractual” community supervision, not in the trial court’s judgment. Id . The issue is before us, and the fees were improperly assessed. Here, the record reflects that Sharpe was indigent and received court

- appointed counsel for trial and appeal. Yet, the trial court ordered him to pay the a ttorney fees for his court

- appointed counsel. However, s ince there is no evidence in the record showing a material change in Sharpe’s financial resources and ability to pay, the court’s assessment of attorney fees 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.).4

Notwithstanding the fact that we find no reversible error, appellate courts “ have the authority to reform judgments and affirm as modified in cases where there is nonreversible error. ” Ferguson v. State , 435 S.W.3d 291, 29 3 (Tex. App.

— Waco 2014, pet. stru ck) (comprehensively discussing appellate cases that have modified judgments). If the evidence is insufficient to support the attorney fees, the court should modify the judgment to delete the attorney fees. See Mayer , 309 S.W.3d at 555

– 56. Accordingly, w e modify the trial court’s judgment and the order for community supervision by deleting the assessment of, and the requirement to pay, attorney fees . We affirm the judgment and order , as modified.

Josh R. Morriss, III Chief Justice
Date Submitted: July 7, 2020 Date Decided: August 5, 2020 Publish