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

No. 06

- 19

- 00223

- CR

RUBEN LOVE ASBERRY, SR., Appellant
V. THE STATE OF TEXAS, Appellee

On Appeal from the 369th District Court Anderson County, Texas Trial Court No. 369CR

- 16

- 32573

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

### MEMORANDUM OPINION An Anderson County jury convicted Ruben Love Asberry, Sr., of possession with intent to deliver more than four , but less than 200 , grams of methamphetamine. 1 See T EX
. H EALTH &
S AFETY C ODE A NN
. § 481.112(d). Asberry was sentenced to seventy

- five years’ imprisonment and was ordered to pay a $10,000.00 fine and $404.00 in court costs. On appeal, Asberry argues that the bill of costs should be modified to delete a note stating that fees for his court

- appointed attorney can be added later because there is no evidence that he is able to pay th em. The State concedes the issue. Asberry also argues that the trial court’s judgment should be modified to reflect the correct date of offense, but a judgment nunc pro tunc has already corrected that issue. As a result, we modify the bill of costs by d eleting language stating that attorney fees can be added later and affirm the trial court’s judgment. Because he was indigent, the trial court did not assess attorney fees against Asberry. The bill of costs correctly showed that the judgment did not c ontain a fee for Asberry’s c ourt

- appointed attorney, but also included a note that such fees could be added later. Under Article 26.05(g) of the Texas Code of Criminal Procedure, a trial court has the authority to order the reimbursement of court

- appointe d attorney fees only if “the court determines that a defendant has financial resources that enable him 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). “ [ T]he defendant’s financial resources and ability to pay are explicit critical elements in the trial court’s

1 Ori ginally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See T EX
. G OV ’ T C ODE A NN . § 73 .001. We follow the precedent of the Twelfth Court of Appeals in deciding this case. See T EX
. R. A PP
. P. 41.3.3 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 of the ability of Asberry to pay them, attorney fees could not be assessed against him

. See Cates v. State , 402 S.W.3d 250, 252 (Tex. Crim. App. 2013); see also Mayer v. State , 309 S.W.3d 552 (Tex. Crim. App. 2010); Martin v. State , 405 S.W.3d 944, 946

– 47 (Tex. App.

— Texarkana 2013, no pet.). Accordingly, Asberry asks that we modify the bill of costs by deleting the language stating that attorney fees can be added later. 2 The State concedes the point and agrees to the modification of the bill of costs. We sustain Asberry’s first point of

error. In his second point of error, Asberry argues that the judgment contains the incorrect date of offense. Because a judgment nunc pro tunc recently filed with this Court has corrected the issue, we overrule Asberry’s last point of error.

2 “ Court costs, as reflected in a certified bill of costs, need neither be orally pronounced nor incorporated by reference in the judgment to be effective. ” Armstrong , 3 40 S.W.3d at 766

.4 We modify the bill of costs by deleting the language stating , “COURT APPOINTED
ATTORNEY FEES MAY BE ADDED AT A LATER DATE,” and affirm the trial court’s judgment.

Josh R. Morriss, III Chief Justice Date Submitted: March 5, 2020 Date Decided: March 6 , 2020 Do Not Publish