Opinion filed August 7, 2014



### In The 

# Eleventh Court of Appeals

____ _ _

_ _____ 

### No s . 11

- 1 4

- 00 002

- C R & 11

- 14

- 00 003

- CR

_____ __ _____ 

### HORA C IO GARCIA CASTRO , Appellant V. THE STATE OF TEXAS , Appellee

On Appeal from the 106 th District Court Dawson County, Texas Trial Court Cause No s . 06

- 6609 & 07

- 6652

M E M O R A N D U M O P I N I O N
In the se causes, Hora c io Garcia Castro appeals from the trial court’s revocation of his community supervision. We modify and affirm. Appellant pleaded guilty in June 2007 to the offense of possession of methamphetamine (No. 11

- 14

- 00002

- CR) and to the offense of failure to appear (No. 11

- 14

- 00003

- CR)

. In accordance with a plea agreement, the trial court convicted Appellant of both offenses and assessed Appellant’s punishment at
confinement for ten years and a fine of $ 2,000 for each offense. The trial court suspended the imposit ion of the confinement portion of both sentences, and it2 placed Appellant on community supervision for a term of ten years for each
offense.
In December 2010 , the State filed an application to revoke Appellant’s community supervision in both causes based u pon multiple allegations that Appellant had violated the terms and conditions of his community supervision. The State alleged, among other things, that Appellant had violated the terms and conditions of his community supervision by using cocaine and consu ming alcohol on or about July 25, 2008
, and by failing to report by mail to the Dawson County Community Supervision Departmen t for more than thirty months. At a hearing, Appellant pleaded “not true” to all of the allegations in the applications. The evid ence at the hearing showed that Appellant’s community supervision was transferred from Dawson County to Denton County in August 2007. After the transfer, Appellant was required to report by mail to the Dawson County Community Supervision Department on a m onthly basis. T he State presented evidence that supported the allegations in the applications, including
evidence that Appellant failed to report by mail for more than thirty months to the Dawson County Community Supervision Department and that Appellant used
cocaine and consumed alcohol on July 25, 2008

. Appellant testified at the hearing.
He acknowledged that he had signed forms in which he ad mitted that he used
cocaine and consumed alcohol on July 25, 2008

. After receiving evidence , the trial court found all the allegations in the applications in both causes to be true, revoked Appellant’s community supervision in both causes, and assessed Appellant’s punishment at confinement for ten years and a fine of $2,000 for each offense. Th e
tr ial court ordered that t he sentences run consecutively. Ap pellant’s court

- appointed counsel has filed a motion to withdraw in these appeals

. In each appeal, the motion is supported by a brief in which counsel professionally and conscientiously examine s the record and applicable law and3 states that he has concluded that the appeal is frivolous. Counsel has provided
A ppellant with a copy of the brief in each appeal and advised A ppellant of his right to review the record and file a response to counsel’s brief. 1 No response has been
filed. 2 Court

- appointed counsel has complied with the requirements of Anders v. California , 386 U.S. 738 (1967); In re Schulman , 252 S.W.3d 403 (Tex. Crim. App. 2008); Stafford v. State , 813 S.W.2d 503 (Tex. Crim. App. 1991); High v.
State , 573 S.W.2d 807 (Tex. Crim. App. 1978); Currie v. State , 516 S.W.2d 684 (Tex. Crim. App. 1974); Gainous v. State , 436 S.W.2d 137 (Tex. Crim. App. 1969); and Eaden v. State , 161 S.W.3d 173 (Tex. App.

— Eastland 2005, no pet.). However, although counsel has found no reversible error and has concluded that these appeals are frivolous, counsel states that “[t]here does seem to be one issue regarding appointed attorney fees.” 3 In September 2013, the trial court determined that Appellant was indigen t and appointed an attorney to represent him

. The trial court rendered its judgments in these causes on December 18, 2013. In the judgments, the trial court assessed $300 in court

- appointed attorney’s fees.
Counsel states in his brief s that he “has reviewed the record and cannot find any evidence that would support the finding of any material change in financial circumstances that would warrant imposition of appointed attorney fees.” Thus,
counsel has raised the issue of whether the trial c ourt erred when it assessed court

appointed attorney ’ s fees against Appellant.

1 Counsel also provided Appellant with a copy of the reporter’s record and a copy of the c lerk’s record in these appeals.

2 By letter, this court granted Appellant thirty days in which to exercise his right to file a response to counsel’s brief.

3 Following the procedures outlined in Anders and Schulman , we have independently reviewed the records, and we agree that no reversible error exists. Schulman , 252 S.W.3d at 409. In this regard, proof of one violation of the terms and conditions of community supervision is sufficient to support the revocation. Smith v. State , 286 S.W .3d 333, 342 (Tex. Crim. App. 2009); McDonald v. State , 608 S.W.2d 192, 200 (Tex. Crim. App. 1980); Jones v. State , 571 S.W.2d 191, 193

– 94 (Tex. Crim. App. 1978).4 Because counsel has identified an alleged error in the judgments, we will treat the briefs as briefs on the merits and address the alleged error. 4 For the purpose of assessing attorney’s fees, once a defendant is determined to be indigent, he is presumed to remain so for the remainder of the proceedings absent proof of a material change in his financial circumstances. T EX

. C ODE C RIM

. P ROC

. A NN

.

a rt. 26.04(p) (West. Supp. 2013); Mayer v. State , 309 S.W.3d 552, 557 (Tex. Crim. App. 2010). Accordingly, when a trial court determines that the defendant is indigent, there must be some evidence presented to the trial court of a change in the defendant’s ability to pay attorney’s fees before the fees can be assessed against the defendant. Mayer , 309 S.W.3d at 557; Watkins v. State , 333 S.W.3d 771, 781

– 82 (Tex. App.

— Waco 2010, pet

. ref’d); Roberts v. State , 327 S.W

. 3d 880, 884 (Tex. App.

— Beaumont 2010, no pet.). In these cases
, there w as no evidence of a material change in Appellant’s financial status. Therefore, the trial court erred by imposing atto rney’s fees against Appellant. 5 Based on our ruling, we modify the trial court’s judgments in cause n o. 06

- 6609 and in cause n o. 07

- 6652 by deleting the following language from the judgments: “APPO I NTMENT OF ATTORNEY FEE: $300.00.” We affirm the judgments as modified.

PER CURIAM August 7 , 201 4 Do not publish. See T EX

. R. A PP

. P. 47.2(b).
Panel consists of: Wright, C.J., Willson, J. , and Bailey, J.

4 Accordingly, counsel’s motions to withdraw are dismissed as moot.

5 We note that neither the original judgments placing Appellant on community supervision nor the plea bargain agreements included an assessment of attorney’s fees. See Wiley v. State , 410 S.W.3d 313, 319

– 21 (Tex. Crim. App. 2013).