MODIFY, REFORM, and AFFIRM; and Opinion Filed May 8, 2013.

S

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-11-00447-CR

JAMES ADAM TAWWATER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 4

Collin County, Texas

Trial Court Cause No. 004-86639-10

MEMORANDUM OPINION

Before Justices Lang-Miers, Murphy, and Fillmore 

Opinion by Justice Murphy

James Adam Tawwater was convicted of driving while intoxicated, and the trial court 

assessed punishment at ninety days’ confinement. See TEX. PENAL CODE ANN. § 49.04 (West 

Supp. 2012). In a single point of error, Tawwater argues the trial court abused its discretion by 

assessing court-appointed attorney’s fees against him as court costs. We modify the judgment to 

delete the award of attorney’s fees and affirm the judgment as modified. 

Before Tawwater’s trial, the trial court found him to be indigent. The trial court’s 

judgment, however, included an order “that the cost to Collin County for the payment of this 

defendant’s court-appointed attorney, if any, is taxed against this defendant as court costs. The 

county clerk is granted leave to amend the court costs to reflect this amount without the necessity 

of a further order.” Tawwater argues, and the State agrees, the trial court abused its discretion in 

assessing court-appointed attorney’s fees. 
–2–

Once a trial court finds a criminal defendant to be indigent, the defendant is presumed to 

remain indigent for the remainder of the proceedings unless a material change in the defendant’s 

financial resources occurs. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2012). 

For the trial court to assess attorney’s fees, it must determine the defendant has the financial 

resources that enable the court to offset those costs. Id. art. 26.05(g); see also Mayer v. State, 

309 S.W.3d 552, 556 (Tex. Crim. App. 2010). The record also must show some factual basis to 

support the trial court’s determination. See Barrera v. State, 291 S.W.3d 515, 518 (Tex.App.—

Amarillo 2009, no pet.).

The record contains no evidence supporting the trial court’s assessment of attorney’s fees 

against Tawwater. See Mayer, 309 S.W.3d at 556. When the evidence does not support the 

assessment of attorney’s fees as court costs, the proper remedy is to modify the judgment to 

delete the requirement. Id. at 557. We therefore modify the trial court’s judgment by deleting 

the assessment of attorney’s fees against Tawwater and affirm the judgment as modified.

Do Not Publish

TEX. R. APP. P. 47

110447F.U05

/Mary Murphy/

MARY MURPHY

JUSTICE
–3–

Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

JAMES ADAM TAWWATER, Appellant

No. 05-11-00447-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law 

No. 4, Collin County, Texas

Trial Court Cause No. 004-86639-10.

Opinion delivered by Justice Murphy. 

Justices Lang-Miers and Fillmore 

participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED

as follows:

The paragraph of the judgment that states:

It is further ordered that the cost to Collin County for the payment of this 

defendant’s court-appointed attorney, if any, is taxed against this defendant as 

court costs. The county clerk is granted leave to amend the court costs to reflect 

this amount without the necessity of a further order.

is DELETED from the judgment.

As REFORMED, the judgment is AFFIRMED.

Judgment entered this 8th day of May, 2013.

/Mary Murphy/

MARY MURPHY

JUSTICE