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

No. 06

- 19

- 00152

- CR

JOHN ELIE LEBLANC, Appellant
V. THE STATE OF TEXAS, Appellee

On Appeal from the 188th District Court Gregg County, Texas Trial Court No. 45834

- A

Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Justice Stevens2 

### MEMORANDUM OPINION
On July 3, 2019, John Elie LeBlanc’s deferred adjudication community supervision was revoked, his guilt was adjudicated, and he was sentenced to five years’ imprisonment. On appeal, LeBlanc complains that the clerk’s certified bill of costs erroneously refle cts that the trial court assessed him an attorney fee of $816.00 and that he was assessed a fine of $1,500.00 when no fine was orally pronounced at his sentencing. We agree. Because the bill of costs was incorporated into the judgment, we will modify the trial court’s judgment and the clerk’s bill of costs by changing the attorney fee to $476.00 and the fine to $0.00.
I. Background On February 17, 2017, LeBlanc pled guilty to two counts of aggravated assault. The trial court received his plea and , pursuant to a plea agreement , deferred adjudication of his guilt ; assessed him a $1 , 500.00 fine, court costs of $249.00, and attorney fees of $476.00 ; and placed him on community supervision for ten years. Two and one - half years later, the trial court re voked LeBlanc’s community supervision, adjudicated his guilt, and sentenced him to five years’ imprisonment. When pronouncing LeBlanc’s sentence, the trial court did not orally impose a fine as part of his sentence. The first page of the trial court’s written j udgment a djudicating g uilt reflects a punishment of five years and contains no entries under the headings “Fine” and “Court Costs.” At the bottom of the second page, the judgment recites the following under the heading “S pecial F indings and
O rder s : THE COURT ORDERS ALL COURT

- ORDERED PAYMENTS, IF ANY, SUSPENDED WHILE DEFENDANT IS IN CUSTODIAL SUPERVISION, AND3 SUCH PAYMENT SHALL BE REINSTATED THIRTY DAYS AFTER THE DATE OF DEFENDANT’S DISCHARGE FROM CUSTODIAL SUPERVISION. Page 3 of the judgment c ontains a certified bill of costs reflecting total costs of $2,780.00, including $816.00 for “Attorney Fee,” and $1,500.00 for “Fine.” The final page of the judgment contains the signature of the trial judge. Thus, it appears that the trial court intende d to incorporate the bill of costs into its written judgment.
II. The Judgment and Bill of Costs Must Be Modified In his first issue, LeBlanc complains that the bill of costs erroneously assesse d him court

appointed attorney fees. 1 A trial court may order the reimbursement of court

- appointed attorney fees only “ [i]f the judge determines that a defendant has financial resources that enable the defendant to offset in part or in whole the costs of t he legal services provided .

. . including any expenses and costs. ” T EX
. C ODE C RIM
. P ROC
. A NN . art. 26.05(g) (Supp.). “ [T]he defendant ’ s financial resources and ability to pay are explicit critical elements in the trial court ’ s determination of the propri ety of ordering reimbursement of costs and fees ” of legal services provided. Armstrong , 340 S.W.3d at 765

– 66 (quoting Mayer v. State , 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)). The record in this case shows that LeBlanc was found to be indigent and that LeBlanc was represented by court

- appointed counsel throughout these proceedings. Once a defendant is found to be indigent, he “ is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant ’ s fin ancial circumstances occurs .” T EX
. C ODE C RIM
.

1 Court

- appointed attorney fees contained in a certified bill of costs are effective, whether orally pronounced and whether incorporated in the written judgment. Armstrong v . State , 340 S.W.3d 759, 767 (Tex. Crim. App. 2011).4 P ROC
. A NN . arts. 26.04(p) (Supp.) ; Walker v. State , 557 S.W.3d 678, 689 (Tex. App.

— Texarkana 2018, pet. ref ’ d)

. The record shows that LeBlanc was assessed $816.00 in court

- appointed attorney fees. However, this amount included $476.00 in court

- appointed attorney fees in the o rder of d eferred

a djudication. Complaints regarding the imposition of court costs in an or der of deferred adjudication are required to be asserted in a timely appeal of that order. See P erez v. State , 424 S.W.3d 81, 86 (Tex. Crim. App. 2014). This includes complaints about the assessment of court

appointed attorney fees. Wiley v. State , 410 S.W.3d 313, 318 (Tex. Crim. App. 2013 ). If a defendant has knowledge of the imposition of court

- appointed attorney fees in a deferred adjudication order and fails to make a timely appeal of that order , he forfeits any complaint about
court

- appointed attorney fees assessed in the order

. Riles v. State , 452 S.W.3d 333, 337 (Tex. Crim. App. 2015); Wiley , 410 S.W.3d at 318, 321. Consequently, he may not assert th e complaint in an appeal from a judgment adjud icating his guilt. Riles , 452 S.W.3d at 337 ; Wiley , 410 S.W.3d
at 321

. The record in this case shows that LeBlanc signed, and his right thumb print was embossed

on , the o rder of d eferred a djudication. In addition , t he o rder e stablishing LeBlanc’s c ondi tions of community supervision , also acknowledged by LeBlanc with h is signature, provided that he would pay $ 476 .00 in court

- appointed attorney fees as a term of h is community supervision. Under this record, we conclude that LeBlanc was aware that he was required to pay the court

- appointed attorney fees. See Wiley , 410 S.W.3d at 320

– 21. Since he failed to timely appeal the d eferred5 a djudication order , any complaint regarding the $ 476 .00 in court

- appointed attorney fees assessed in that order has been forfeited. See Riles , 452 S.W.3d at 338; Wiley , 410 S.W.3d at 321. Even so, the record contain s no evidence (1) that LeBlanc’s financial circumstances have changed since the o rder of d eferred a djudication or (2) that he had the ability to pay the court

a ppointed attorney fees. Consequently, the assessment of the additional $340.00 for court

appointed attorney fees was error. We sustain LeBlanc’s first issue as to the additional $340.00 in attorney fees. In his second issue, LeBlanc complains that it was error to impose a fine of $1,500.00 in the written judgment and certified bill of costs since the trial court did not orally pronounce the fine at his sentencing. We agree. In this case, the trial court imposed a $1,500.00 fine in its d eferred a djudicati on order

. W hen the trial court adjudicated LeBlanc’s guilt, it did not orally pronounce a fine, yet , a fine was included in the certified bill of costs that was incorporated into the written judgment. “[W]hen an accused receives deferred adjudication, no sentence is imposed.” Taylor v. State , 131 S.W.3d 497, 502 (Tex. Crim. App. 2004). If his guilt is subsequently adjudicated, “the order adjudicating guilt sets aside the order deferring adjudication, including the previously imposed fine.” Id . When there is a conflict between the oral pronouncement of sentence in open court, which includes any imposition of a fine, and the written judgment, the oral pronouncement controls. See id . (citing Thompson v. State , 108 S.W.3d 287, 290 (Tex. Crim. Ap p. 2003) ). Since the trial court did not orally pronounce a fine, the assessment of a fine in the judgment and bill of costs was error. We sustain LeBlanc’s second issue.6 “ Appellate courts ‘ have the authority to reform judgments and affirm as modified in cases where there is non reversible error. ’” Walker , 557 S.W.3d at 690 (quoting Ferguson v. State , 435 S.W.3d 291, 294 (Tex. App.

— Waco 2014, pet. struck) ( “ comprehensively discussing appellate cases that have modified judgments ” )). We modify the trial c ourt’s judgment by changing the assessment of attorney fees to $476.00 and changing the fine to $0.00. We also modify the certified bill of costs by changing the amount for “Attorney Fee” to $476.00, by changing the amount for “Fine” to $0.00, and by chan ging the amount for “Total Costs” to $940.00.
III. Disposition For the reasons stated, we modify the trial court’s judgment by changing the assessment of attorney fees to $476.00 and changing the fine to $0.00

. W e modify the certified bill of costs by changing the amount for “Attorney Fee” to $476.00, by changing the amount for “Fine” to $0.00, and by changing the amount for “Total Costs” to $940.00. As modified, w e affirm the tri al court’s judgment.

Scott E. Stevens Justice Date Submitted : March 25, 2020 Date Decided: March 26 , 2020 Do Not Publish