NO. 12-17-00013-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

LINDSEY MARIE PEVETO, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

§

§

§

APPEAL FROM THE 128TH 

JUDICIAL DISTRICT COURT

ORANGE COUNTY, TEXAS

MEMORANDUM OPINION

PER CURIAM

Lindsey Marie Peveto appeals her conviction for aggravated robbery. Appellant’s 

counsel filed a brief in compliance with Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 

L. Ed. 2d 493 (1967), and Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969). We 

modify and affirm as modified.

BACKGROUND

Appellant was charged by indictment with aggravated robbery. Pursuant to a plea 

agreement with the State, Appellant pleaded “guilty,” and the trial court deferred a finding of 

guilt, assessed a $1,000 fine, and placed her on community supervision for a term of ten years. 

Subsequently, the State filed a motion to impose guilt. Appellant pleaded “true” to the

allegations in the motion. After a hearing, the trial court assessed Appellant’s punishment at 

imprisonment for twenty years. This appeal followed. 

ANALYSIS PURSUANT TO ANDERS V. CALIFORNIA

Appellant’s original appellate counsel filed a brief in compliance with Anders v. 

California and Gainous v. State. Appellant’s counsel relates that she has reviewed the record 

and that in her professional judgment, the record contains no reversible error or jurisdictional 
2

defect for our review. In compliance with High v. State, 573 S.W.2d 807, 812 (Tex. Crim. App. 

[Panel Op.] 1978), counsel’s brief contains a professional evaluation of the record demonstrating 

why there are no arguable grounds to be advanced.1

We have considered counsel’s brief and conducted our own independent review of the 

record. Id. at 811. We have found no reversible error.

COURT COSTS

In reviewing the record, we found an error in the amount of court costs named in the 

judgment. We have the authority to reform a judgment in an Anders appeal and to affirm that 

judgment as reformed. See TEX. R. APP. P. 43.2(b); Bray v. State, 179 S.W.3d 725, 726 (Tex. 

App.—Fort Worth 2005, no pet.) (en banc).

The imposition of court costs upon a criminal defendant is a “nonpunitive recoupment of 

the costs of judicial resources expended in connection with the trial of the case.” Johnson v. 

State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). In reviewing the assessment of court costs, 

we review the record to determine whether there is a basis for the costs. Id.

In this case, the final judgment imposes $2,138 in court costs. The bill of costs provides 

the following:

COURT APPOINTED ATTORNEYS $975.00

COMB CRT COST – CR $133.00 $133.00

COURTHOUSE SEC FUND $5.00 $5.00

COURT RELATED PURPOSE FEE $6.00

DISTRICT CLERK FEES - $40.00 $40.00

DNA TESTING (DC) $34.00

FINES $1,000.00

INDIGENT DEFENSE FEE $2.00

JURY SERVICE FEE $4.00

REC MGMT PRES FUND (CR) $22.50

REC MGMT PRES FUND (CLK-R) $2.50

ORANGE CO SHERIFF - $75 $195.00

DC TECH FEE $4.00

TIME PAYMENT – CRIMINAL $25.00

Total Cost $2,448.00

 

1

In compliance with Kelly v. State, Appellant’s counsel provided Appellant with a copy of the brief, 

notified Appellant of her motion to withdraw as counsel, informed Appellant of her right to file a pro se response, 

and took concrete measures to facilitate Appellant’s review of the appellate record. 436 S.W.3d 313, 319 (Tex. 

Crim. App. 2014). Appellant was given time to file her own brief. The time for filing such a brief has expired and no 

pro se brief has been filed.
3

Total Paid $1,788.00

Balance Due $660.00

We have reviewed the record and found no basis for $2,313 of these costs to be imposed in the 

final judgment. 

First, there is no basis for imposing the $1,000 fine in the final judgment because the 

record indicates the fine was already paid. The deferred adjudication order imposed a $1,000 

fine and $788 in court costs. These amounts presumably constitute the $1,788 “total paid”

amount in the bill of costs. Thus, the fine should not be included in the judgment. See Johns v. 

State, Nos. 07-10-0303-CR, 07-10-0304-CR, 2011 WL 832837, at *2 (Tex. App.—Amarillo 

Mar. 10, 2011, pet. ref’d) (mem. op., not designated for publication) (reforming judgment to 

reflect that court costs were paid in full).

Furthermore, no part of the $975 in attorney’s fees should be included in the judgment. 

According to the order imposing conditions of community supervision, $450 of the $788 in court 

costs paid by Appellant was a court appointed attorney fee.2 Because the fee was already paid, 

there is no basis for imposing it in the final judgment. See id.

Nor is there a basis for imposing the remaining $525 in attorney’s fees. A trial court has 

the authority to assess attorney’s fees against a criminal defendant who received court-appointed 

counsel. TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2016). But once a criminal 

defendant has been determined to be indigent, he “is presumed to remain indigent for the 

remainder of the proceedings unless a material change in his financial circumstances occurs.”

Id. art. 26.04(p) (West Supp. 2016). Before attorney’s fees may be imposed, the trial court must 

make a determination supported by some factual basis in the record that the defendant has the 

financial resources to enable him to offset in part or in whole the costs of the legal services 

provided. See Johnson v. State, 405 S.W.3d 350, 354 (Tex. App.—Tyler 2013, no pet.). If the 

record does not show that the defendant’s financial circumstances materially changed, there is no 

basis for the imposition of attorney’s fees. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); 

Mayer v. State, 309 S.W.3d 552, 553, 557 (Tex. Crim. App. 2010); Johnson, 405 S.W.3d at 354. 

 

2 We do not address the propriety of the attorney’s fee assessment in the deferred adjudication order 

because “a defendant placed on deferred adjudication community supervision may raise issues relating to the 

original plea proceeding, such as evidentiary sufficiency, only in appeals taken when deferred adjudication 

community supervision is first imposed.” See Perez v. State, 424 S.W.3d 81, 85 (Tex. Crim. App. 2014).
4

In this case, the record contains three orders appointing counsel that indicate the trial 

court determined Appellant was indigent. The record does not show that the trial court ever 

made a finding that Appellant’s financial circumstances had materially changed. Thus, there is 

no basis in the record to support the imposition of the $525 in attorney’s fees in the final 

judgment. See id. 

Next, we must determine what part of the remaining costs were already paid and whether 

there is a basis for any costs not already paid. After subtracting the fine and attorney’s fees, the 

costs listed in the bill of costs total $473. Of this amount, $338 was already paid.3 This leaves 

$135 in costs not yet paid by Appellant at the time of adjudication. 

After reviewing the record, we find that there is a basis for imposing the $135 in court 

costs in the final judgment. The record shows that two arrest warrants were executed after 

Appellant was placed on community supervision, providing a basis for $100 in court costs. See 

TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(2) (West Supp. 2016). The record further shows at 

least two instances of Appellant’s commitment or release from jail after she was placed on 

community supervision, providing a basis for $10 in court costs. See id. art. 102.011(a)(6). 

Finally, the record shows that part of Appellant’s original court costs were paid more than thirtyone days after they were assessed, providing a basis for the $25 time payment fee in the final 

judgment. See TEX. LOC. GOV’T CODE ANN. § 133.103(a) (West Supp. 2016).

We have the authority to correct a trial court’s judgment to make the record speak the 

truth when we have the necessary data and information. Asberry v. State, 813 S.W.2d 526, 529 

(Tex. App.—Dallas 1991, pet. ref’d). Because we have the necessary data and information to 

correct the amount of court costs in this case, we conclude that the judgment should be modified 

to reflect that the court costs are $135. See id.; TEX. R. APP. P. 43.2(b).

CONCLUSION

As required by Anders and Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 

1991), Appellant’s original counsel moved for leave to withdraw. See also In re Schulman, 252 

S.W.3d 403, 407 (Tex. Crim. App. 2008) (orig. proceeding). We carried the motion for 

consideration with the merits. Having done so, we agree with original counsel that the appeal is 

wholly frivolous. Accordingly, we grant Appellant’s original counsel’s motion for leave to 

 

3 $788 - $450 = $338.
5

withdraw. We modify the trial court’s judgment to reflect that Appellant’s court costs are $135. 

We affirm the judgment as modified.

The trial court granted Appellant’s original counsel’s motion to withdraw on the basis of 

her change of employment and appointed substitute counsel. Although original counsel also filed 

a motion to withdraw in this Court, along with the Anders brief, substitute counsel has not filed a 

motion to withdraw in this case. If substitute counsel wishes to file a motion to withdraw, she 

must file the motion no later than fifteen days from the date of this opinion. Appellant’s 

substitute counsel has a duty to, within five days of the date of this opinion, send a copy of the 

opinion and judgment to Appellant and advise her of her right to file a petition for discretionary 

review. See TEX. R. APP. P. 48.4; In re Schulman, 252 S.W.3d at 411 n.35. 

Should Appellant wish to seek review of this case by the Texas Court of Criminal 

Appeals, she must either retain an attorney to file a petition for discretionary review on her 

behalf or she must file a pro se petition for discretionary review. Any petition for discretionary 

review must be filed within thirty days from the date of this court’s judgment or the date the last 

timely motion for rehearing was overruled by this court. See TEX. R. APP. P. 68.2(a). Any

petition for discretionary review must be filed with the Texas Court of Criminal Appeals. See

TEX. R. APP. P. 68.3(a). Any petition for discretionary review should comply with the 

requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See In re Schulman, 252 

S.W.3d at 408 n.22.

Opinion delivered October 25, 2017.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

OCTOBER 25, 2017

NO. 12-17-00013-CR

LINDSEY MARIE PEVETO,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 128th District Court 

of Orange County, Texas (Tr.Ct.No. A120202-R)

THIS CAUSE came on to be heard on the appellate record and the briefs 

filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s 

judgment below should be modified and, as modified, affirmed.

It is therefore ORDERED, ADJUDGED and DECREED that the trial 

court’s judgment below be modified to reflect that Appellant’s court costs are $135.00; and as 

modified, the trial court’s judgment is affirmed; and that this decision be certified to the trial 

court below for observance.

By per curiam opinion.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.