## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 21

- 00115

- CR

JANET LISTER , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 188th District Court Gregg County, Texas Trial Court No. 50688

- A

Before Morr iss, C.J., Stevens and van Cleef , JJ. Memorandum Opinion by Justice Stevens2 

### ME MORANDUM OPINION Charged with theft of property of a value less than $2,500.00, Janet Lister entered an
open plea of guilty. See T EX
. P ENAL C ODE A NN
. § 31.03. The trial court sentenced her to twelve years’ confinement in prison 1 and ordered her to pay $ 2 ,465 .00 in attorney fees for her court

appointed counsel

. In h er sole point of error on appeal, Lister contends t hat we should delete th e

asse ssment of attorney fees agai nst her because she is indigent. We agree and modify the clerk’s bill of costs and the judgment by striking the assessment of attorney fees.
Becau se the trial court found Lister to be indigent, s he was presumed to rema in ind igent absent proof of a mate r ial change in her circumstances. See T EX
. C ODE C RIM
. P ROC
. A NN
. art s . 26.04(p), 26.05(g) (Supp.) ; Walker v. State , 557 S.W.3d 678, 689 (Tex. App.

— Te xarkana 2018, pet. ref’d). Even so , the trial court, wh ich also found L ister indigent after trial for pur p oses of appeal, assessed $ 2,465 .00 in attorney fees against her

. That fee was also reflected in the clerk’s
bill of costs

. Und er Article 26.05(g) of the Texas Code of Criminal Procedure , a trial court has the authority to order the reimbursement of co u rt

- appointed attorney fees only if “ the judge determines that a defendant has financial resources that enable the defendant to offset in par t or in whole the costs of the legal services prov ided

. . . including any expenses and costs.” T EX
. C ODE C R IM
. P R O C
. A NN
. art. 26.05(g). “[T]he defendant’s financial resources and ability to pay are explicit critical elements in the trial court’s determinati on of the propriety of ordering reimbursement of co sts and fees” of legal services provided. Armstrong v. Sta t e , 340 S.W.3d

1 Lister’s puni shment was enhanced by two prior theft convictions and convictio ns o f burglary of a habitation and robbery.3

759, 765

– 66 (Tex. Crim. App. 2011) (alteration in or iginal) (quoting Mayer v. State , 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)). Since there wa s no finding that Lister cou ld pay the m , the assessment of the attorney fees was erroneous

. See Cates v. State , 402 S.W.3d 250, 252 (Tex. Crim. App. 2013); see also Mayer v. State , 309 S.W.3d 552 (Tex. Crim. App. 2010); Martin v.
State , 405 S.W.3d 944, 946

– 47 (Tex. A pp.

— Texarkana 20 13, no pet .). When we discover non

- reversible error, w e have the auth ority to modify an incorrect judgment whether the matter h as been called to our attention by a party or we are acting

sua sponte. Rhoten v. S tate , 299 S.W.3d 349, 356 (Tex. App.

— Texarkana 2009, no pet.) (citing French v. State , 830 S.W.2d 607, 609 (Tex. C ri m. App. 1992))

. “ The Texas Rules of App ellate Procedure also provide direct authority for this Court to modify the trial court ’ s judgment

. ” Id

. (citing T EX
. R. A PP
. P. 43.2 (b) )

. We sustain Lister’s s ole point of error

. Acc ordingly, we modify the clerk ’s bill of costs and the judgment of convi ction by striking the assessment of attorney fees in the amount o f $ 2 ,465 .00

. As modified, the trial court’s judgment is affirmed.

Scott E. Stevens Justice Date Submitted: Au gust 18, 2022 Date Decided: Augu st 31 , 2022 Do Not Publish