## NO. 12

- 17

- 00249

- CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CHRISTOPHER BRIAN MU RRAY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE §

§

§ APPEAL FROM THE 349T H

JUDICIAL DISTRICT COURT

ANDERSON COUNTY, TEX AS

MEMORANDUM OPINION
Christopher Brian Murray appeals his conviction for aggravated assault with a deadly

weapon. Appellant raises one issue challenging the trial court’s imposition of court costs and attorney’s fees. We modify and affirm as modified.

B ACKGROUND Appellant was charged by indictment with aggravated assault with a deadly weapon and pleaded “not guilty.” The matter proceeded to a jury trial. The jury found Appellant “guilty”
and assessed his punishment at imprisonment for five years. This appeal followed.

I MPOSITION OF C OURT C OSTS In Appellant’s sole issue, he argues that the trial court erred by imposing court costs and
attorney’s fees after finding Appellant to be indigent.
Standard of Review and Applicable Law 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 38 5, 390 (Tex. Crim. App. 2014). When the imposition of court costs is
challenged on appeal, we review the assessment of costs to determine if there is a basis for the2

costs, not to determine if sufficient evidence to prove each cost was offered at trial. Id . at 391.
A bill of costs is not required to sustain statutorily authorized and assessed court costs, but it is
the most expedient and, therefore, preferable method. See id. at 396. Absent a challenge to a
specific cost or basis for a cost, a bill of c osts is sufficient to sustain a court cost assessment. Id.
A trial court has the authority to assess attorney fees against a criminal defendant who

received court

- appointed counsel. T EX

. C ODE C RIM

. P ROC

. A NN . art. 26.05(g) (West Supp.
2017). 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. 2017). Before attorney’s fees m ay 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. Stat e , 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 T EX

. C ODE C RIM

. P ROC

. A NN . art. 26.04(p); Ma yer v. State , 309 S.W.3d 552, 553, 557 (Tex. Crim. App. 2010);

Johnson , 405 S.W.3d at 354.
Analysis
Appellant argues that because he was found to be indigent, and was never found
otherwise, the trial court erred by ordering him to pay court costs and pos sibly court appointed attorney’s fees. The judgment of conviction assesses $349.00 as court costs. The judgment also includes an order that Appellant “[r]eimburse court appointed attorney fees if applicable.” The bill of costs assesses $0.00 as court ap pointed attorney fees, but states that “court appointed
attorney fees may be added at a later date.”
The record indicates that Appellant was found to be indigent and was appointed trial and
appellate counsel. Nothing in the record indicates that Appella nt’s financial circumstances
materially changed after he was found to be indigent. Accordingly, we sustain Appellant’s issue
regarding the possible imposition of court appointed attorney fees. See id.
However, Appellant cites no authority for the proposi tion that a trial court may not assess
court costs against an indigent defendant. See T EX

. R. A PP

. P. 38.1(i) (requiring brief to contain
clear and concise argument with appropriate citations to authorities). Accordingly, we overrule
Appellant’s issue re garding the $349.00 court cost assessment.3 D ISPOSITION Having sustained in part and overruled in part Appellant’s sole issue, we modify the trial court’s judgment and bill of costs to delete the possibility of an attorney’s fees assessment. We
affirm th e trial court’s judgment as modified

.

J AMES T. W ORTHEN Chief Justice

Opinion delivered July 31, 2018. 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

JULY 31 , 2018

NO. 12

- 17

- 00249

- CR

CHRISTOPHER BRIAN MU RRAY,

Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 349th District Court
of Anderson County, Texas (Tr.Ct.No. 349CR

- 1 6

- 32569)

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 judgment of the

trial court below should be modified and, as modified, affirmed

.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment

of the court below be modified to delete the possibility of an attorney’s fees assessment ; and as

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

c ourt below for observance.

James T. Worthen , Chief Justice

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