IN THE

TENTH COURT OF APPEALS

No. 10-12-00015-CR

VINCENT HARRIS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 19th District Court

McLennan County, Texas

Trial Court No. 2007-862-C1

M E M O R A N D U M O P I N I O N

In one issue, appellant, Vincent Harris, argues that the evidence is insufficient to 

support the portion of the trial court’s judgment ordering him to pay his courtappointed attorney’s fees because he was determined to be indigent. We modify the

trial court’s judgment to reduce the court-costs finding by $400—the amount of Harris’s 

court-appointed attorney’s fees—and affirm the judgment as modified.
Harris v. State Page 2

I. BACKGROUND

Pursuant to a plea-bargain agreement, Harris pleaded guilty to the offense of 

delivery of less than one gram of cocaine in a drug-free zone, a third-degree felony. See

TEX. HEALTH & SAFETY CODE ANN. §§ 481.112(b), 481.134(b)(1) (West 2010 & Supp. 2011). 

In accordance with the plea-bargain agreement, the trial court sentenced Harris to four 

years’ confinement in the Institutional Division of the Texas Department of Criminal 

Justice with a $750 fine, suspended the sentence, and placed Harris on community 

supervision for six years.

Because Harris failed to comply with all of the terms and conditions of his 

community supervision, several modifications were made. Despite the modifications, 

Harris continued to violate the terms and conditions of his community supervision, 

which prompted the State to file a motion to revoke Harris’s community supervision on 

December 5, 2011. In its motion to revoke, the State alleged that Harris had violated his 

community supervision twenty-three times, including, among other things, the alleged 

commission of the offenses of evading arrest, resisting arrest, theft, criminal trespass, 

criminal mischief, interference with an emergency call, and burglary of a habitation. At 

the hearing on the State’s motion to revoke, Harris pleaded “true” to the first eight 

allegations contained in the State’s motion to revoke and “not true” to the remaining 

allegations. Harris testified at the hearing on the State’s motion to revoke. At the 

conclusion of the evidence, the trial court found the first eight allegations in the State’s 

motion to revoke to be true, revoked Harris’s community supervision, and imposed the 

original four-year prison sentence. This appeal followed.
Harris v. State Page 3

II. COURT-APPOINTED ATTORNEY’S FEES

In his sole issue on appeal, Harris complains that there is not sufficient evidence 

to support the trial court’s judgment requiring him to pay his court-appointed 

attorney’s fees because he was determined to be indigent in the trial court and on 

appeal and because the record does not indicate that his financial situation had 

changed.1 The State concedes that there is not sufficient evidence in the record to 

support the trial court’s award of court-appointed attorney’s fees.

A. Applicable Law

“Sufficiency of the evidence is measured by viewing all of the record evidence in 

the light most favorable to the verdict.” Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. 

App. 2010); see Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 

2d 560 (1979); see also Lucio v. State, 351 S.W.3d 878, 894-95 (Tex. Crim. App. 2011).

For the purpose of assessing attorney's fees, once an accused is found to be 

indigent, he is presumed to remain so throughout the proceedings absent proof of a 

material change in his circumstances. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p) 

(West Supp. 2011); see also Mayer v. State, No. 10-10-00302-CR, 2011 Tex. App. LEXIS 

1369, at *6 (Tex. App.—Waco Feb. 23, 2011, pet. ref'd) (mem. op., not designated for 

publication). Furthermore, the record must reflect some factual basis to support the 

 

1 Harris’s appellate counsel also mentions that his client stated in open court that he wished to 

appeal the revocation of his community supervision “because he does not feel revocation is justified if he 

‘beats’ the subsequent criminal charges that serve as the grounds for allegations ten through sixteen in 

the motion to revoke.” Harris’s counsel, however, concluded that such an appeal would be frivolous 

because Harris pleaded “true” to the first eight allegations contained in the State’s motion to revoke, and 

because case law states that proof of a single violation will support a judgment revoking community 

supervision. See Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2011); see also Diaz v. State, No. 10-11-

00269-CR, 2012 Tex. App. LEXIS 2029, at **2-3 (Tex. App.—Waco Mar. 14, 2012, no pet.) (mem. op., not 

designated for publication). Based on the record before us, we agree with Harris’s appellate counsel.
Harris v. State Page 4

determination that Harris was capable of paying all or some of his attorney's fees at the 

time of the judgment. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2011); 

Barrera v. State, 291 S.W.3d 515, 518 (Tex. App.—Amarillo 2009, no pet.); see also 

Stevenson v. State, No. 10-09-00358-CR, 2011 Tex. App. LEXIS 8302, at *3 (Tex. App.—

Waco Oct. 19, 2011, no pet.) (mem. op., not designated for publication); Willis v. State, 

No. 10-09-00420-CR, 2010 Tex. App. LEXIS 8255, at *2 (Tex. App.—Waco Oct. 13, 2010, 

no pet.) (mem. op., not designated for publication) ("If the State fails to present evidence 

that the defendant is able to pay all or part of his court-appointed attorney's fees, then 

the trial court commits error by assessing any part of those fees as costs of court."). In 

instances where there is insufficient evidence to support the assessment of courtappointed attorney's fees, the proper remedy is to reform the judgment by deleting the 

attorney's fees. See Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); see also 

Cain v. State, No. 10-11-00045-CR, 2011 Tex. App. LEXIS 8159, at *11 (Tex. App.—Waco 

Oct. 12, 2011, no pet.) (mem. op., not designated for publication) (modifying the 

judgment to delete the finding ordering appellant to pay his court-appointed attorney's 

and investigator's fees).

B. Discussion

Here, Harris filed a financial affidavit indicating that he had no money or other 

assets, including a car or a house. The trial court concluded that Harris was indigent 

and appointed him trial counsel. In its judgment revoking Harris’s community 

supervision, the trial court assessed $817 in court costs, which included $400 in courtappointed attorney’s fees. The trial court subsequently found Harris indigent for 
Harris v. State Page 5

purposes of appeal and appointed him counsel for this appeal. The State did not 

present any evidence at the revocation hearing regarding Harris’s financial 

circumstances. Because Harris is entitled to the presumption of indigence in light of the 

dearth of evidence indicating a material change in his financial situation, we conclude 

that the portion of the judgment ordering Harris to pay his court-appointed attorney’s 

fees is improper. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); see also Mayer, 2011 Tex. 

App. LEXIS 1369, at *6. We therefore sustain Harris’s sole issue on appeal and modify 

the judgment to delete the finding that orders Harris to pay his court-appointed 

attorney’s fees. See Mayer, 309 S.W.3d at 557; see also Cain, 2011 Tex. App. LEXIS 8159, at 

*11. The effect of our decision will be to subtract $400 from the $817 in total court costs 

assessed against Harris, leaving $417 in court costs to remain.

III. CONCLUSION

Based on the foregoing, we modify the trial court’s judgment to reduce the courtcosts finding by $400—the amount of Harris’s court-appointed attorney’s fees—and 

affirm the judgment as modified.

AL SCOGGINS

Justice
Harris v. State Page 6

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed as modified

Opinion delivered and filed May 23, 2012

Do not publish

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