NO. 07-10-00153-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO
PANEL D AUGUST 31, 2010

STANLEY WAYNE KIRKPATRICK, APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 54TH DISTRICT CO URT OF MCLENNAN COUNTY; NO. 2004-474-C2; HONORABLE DERWOOD JOHNSON, JUDGE

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION The community supervision of appellant Stanley Wayne Kirkpatrick was revoked and he was sentenced to confinement in a state jail and assessed a fine and court costs. He appeals that porti on of the written judgment order ing reimbursement of courtappointed attorney’s fees. Concluding no ev idence supports the challenged portion of the judgment, we will modify the j udgment and affirm it as modified.2 Background
Appellant was indicted for possession of cocaine in an amount less than one
gram. 1 He filed a financial affidavit for appointment of counsel and counsel was appointed on a finding of indigence. A fter he plead guilty under a plea bargain agreement, in December 2004, the trial c ourt adjudicated him guilty, and assessed punishment of a $2000 fine and tw o years confinement in a st ate jail, but probated the confinement in favor of community supervision for five years.
The State subsequently sought revocation of appellant’s community supervision order alleging ten violations. Before heari ng the motion, the tria l court again found appellant indigent and appointed counsel for him. At the revocation hearing in August 2008, appellant plead true to al l but one of the violations a lleged. The court revoked appellant’s community supervision and sentenc ed him to two years confinement in a state jail and assessed a $2,000 fine. The written judgment orders appellant pay court costs of $1,353. It further provides “[t]he Court assesses all court appointed attorney’s fees, investigator’s fees, and interpreter’s f ees as costs in this cause and Orders the defendant to pay the same.” According to the clerk’s bill of costs, court costs include attorney’s fees of $900.

1 See Tex. Health & Safety Code Ann. § 481.115(b) (Vernon 2010). This is a state jail felony punish able by confinement in a state jail facility for any term of not more than two years or less than 180 days and a fine not to exceed $10, 000. Tex. Penal Code Ann. § 12.35 (Vernon Supp. 2009).3 Analysis
Through a single issue appellant argues, “[ t]he trial court erred in assessing court-appointed attorney’s f ees against Appellant because Appellant was indigent.” 2 The thrust of appellant’s supporting ar gument is a defendant who receives courtappointed counsel may be required to offset the cost of counsel but nothing in the present record supports appellant ’s ability to repay his attor ney’s fees. Appellant prays for reformation of the judgment deleting the assessment of court-appointed attorney’s fees. The State acknowledges multiple findings by the trial court of appellant’s indigence and concedes the record does not s how appellant could repay the entire fee of his appointed counsel. But it contends there was some evi dence appellant could repay a portion of his attorney’s fees and t he case therefore should be remanded for determination of this amount.
Under article 26.05(g) of t he Texas Code of Cr iminal Procedure, the trial court has authority to order reimburse ment of the fees of court- appointed counsel if the court determines that a defendant has financial resour ces that enable him to offset, in part or in whole, the costs of the l egal services provided. Tex. Code Crim. Proc. Ann. art. 26.05(g) (Vernon Supp. 2009); see Mayer v. State, 274 S.W.3d 898, 901 (Tex.App.-- Amarillo 2008), aff’d, Mayer v. State, 309 S.W.3d 552 (Tex.Cri m.App. 2010). “[T]he defendant’s financial resources and ability to pay are explicit critical elements in the trial court’s determination of the pr opriety of ordering reimburse ment of costs and fees.” Mayer , 309 S.W.3d at 556. Acco rdingly, the record must supply a factual basis

2 Appellant was permitted an out-of-time appeal of the August 2008 judgment revoking his community supervision.4 supporting a determination the defendant is c apable of repaying the attorney’s fees levied. Barrera v. State, 291 S.W.3d 515, 518 (Tex.App.--Ama rillo 2009, no pet.) (per curiam).
To support its contention some evidence showed appellant’s ability to offset the legal fees of appointed counsel, the State points to testimony at the revocation hearing and the content of the financial affidavits appellant submitted in support of his requests for appointed counsel. The reporter’s record from the revocation hearing contains nine pages of testimony. No documentary evidence was offered or admitted. Appellant was the lone witness. T he only conceivable evidentiary reference at the hearing to appellant’s ability to repay or offset a portion of his legal fees occurred in the following exchanges:
Q. Why did you stop reporting [to t he community supervision office]? *** A. I felt like I was unjustly treated. Q. By whom? A. By the City of Waco and also my lawyer. Q. Did you seek counsel elsewhere? A. I didn’t have the funds. Q. Okay. Now, you are talking about the City of Waco . Would you tell the Court what that’s all about. A. I had some land that my grandfather left and I was trying to work on. And I got all kinds of fines. I’ve got one now for three hundred dollars. They call it unlocked storage or some kind of storage thing. It’s on the record. *** Q. And for three years you lived here in Waco; is that correct?5 A. That’s true. *** Q. What did you do? A. I worked on cars and tried to k eep change in my pocket to help my family. Q. What kind of family do you have in this area? A. I have my mother. I have three kids and seven grandkids. Q. Did you help support them? A. Yes, I did.
The clerk’s record contains the financial affidavits submitted by appellant prior to his indictment and prior to the hearing of the St ate’s motion to revoke. Assuming, without deciding, that we prop erly consider the contents of the affidavits in our sufficiency review, 3 we conclude they present no evidence appellant possessed financial resources to repay or offset the costs of legal serv ices. Appellant’s original affidavit, dated in December 2003, contains lim ited data. It indica tes appellant was selfemployed, claimed three depend ants, ages 22, 23, and 24, worked some number of hours each week at $7.00 per hour, did not ow n a house or real property, and did not own a car or motorcycle. Inconsistently, it also contains no indi cations of expenses.

3 Neither document was offe red or admitted in evidence at the revocation hearing nor does the record indicate the trial court considered them befor e ordering repayment of court appointed attorney’s fees. “When documents appear in the clerk’s record that have not been introduced in evidenc e, they cannot be c onsidered as part of the record.” Webber v. State, 21 S.W.3d 726, 731 (Tex. App.--Austin 2000, pet. refused). This is not a case where the trial court and the par ties, without objecti on, treated documents contained in the clerk’s reco rd as admitted in evidence. See Killion v. State, 503 S.W.2d 765 (Tex.Crim.App. 1973) (even though writt en stipulations were not admitted in evidence reviewing court could c onsider them as they were considered by trial court in adjudicating guilt for theft and burglary).6 The document includes the trial court’s findi ng of indigence. The second affidavit, made in July 2008, also contains skimpy data. It indicates appellant was unemployed for two years, had no dependants, had no monthly income or expenses, owned no house or real estate, had no bank account, savings accoun t, or “other assets.” It also contained a finding of indigence.
Likewise, appellant’s trial testimony is of no evidentiary worth for establishing financial resources sufficient to repay or offs et appellant’s attorney’s fees. One perhaps might infer from his one-sent ence statement about “land that my grandfather left” that he inherited an interest in the real property that was the subject of his dispute with the City of Waco. Determining whet her the property is a valuable asset or a liability for appellant, however, requires re sort to surmise and specul ation. Moreover, that appellant worked for three years to support hi s family members affords no reasonable basis for concluding that on the eve of commitment to a state jail he possessed resources sufficient to repay or offset the fees of appointed counsel. Even under a preponderance of the evidence st andard, when the evidence offer ed to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, it is in legal effect no evidence, and wi ll not support a verdict or judgment. Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 755 (Tex. 1970).
We conclude the evidence, when viewed in the light most favorable to the judgment of the trial court, does not support a conclusion t hat appellant was capable of repaying or offsetting the attorney’s fees assessment. Appellant’s sole issue is sustained.7 We also cannot agree with the State’ s suggestion we remand for determination of the “proper amount” of appellant’s attorney’s fees reimbursement. See Mayer , 309 S.W.3d at 557 (finding court of appeals did not err by failing to remand).
We therefore modify the judgm ent as follows. From the total court costs taxed of $1,353 we subtract $900 as the fees of appoi nted counsel leaving total court costs assessed of $453. The judgment includes the following:
“Furthermore, the following spec ial findings or orders apply:

The Court assesses all cour t appointed attorney’s fees , investigator’s fees, and interpreter’s fees as costs in this cause and Orders the defendant to pay the same.” This order is modified to provide: “Furthermore, the following spec ial findings or orders apply:
The Court assesses all investigator’s f ees and interpreter’s fees as costs in this cause and Orders the defendant to pay the same. As used in this judgment, the term “c ourt costs” does not include court appointed attorney’s fees.” Conclusion
Having sustained appellant’s sole iss ue, we modify the judgment of the trial court in the manner specified and affirm the judgment as modified.

James T. Campbell Justice

Do not publish.