NO. 12-15-00247-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CARLOS DEHENRI COOK,

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

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APPEAL FROM THE 7TH 

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Carlos Dehenri Cook appeals the trial court’s order revoking community supervision. In 

one issue, Appellant argues that the trial court erred by assessing attorney’s fees. We affirm.

BACKGROUND

Appellant was charged by indictment with tampering with physical evidence. Pursuant to 

a plea bargain agreement with the State, Appellant pleaded “guilty” to the offense, and the trial 

court assessed his punishment at imprisonment for ten years, suspended for a period of four 

years. 

Subsequently, the State filed an application to revoke Appellant’s community 

supervision. Appellant pleaded true to the allegations in the application. After giving both 

parties an opportunity to present evidence and arguments, the trial court granted the application 

to revoke and assessed his punishment at imprisonment for five years. This appeal followed.

ATTORNEY’S FEES

In Appellant’s sole issue, he contends that the trial court erred by imposing attorney’s 

fees against him. 
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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 385, 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 the 

costs, not to determine if sufficient evidence to prove each cost was offered at trial. Id.

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.” TEX. CODE CRIM. PROC. ANN. 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. 

No objection is necessary to preserve a claim that there is no evidence of a defendant’s 

ability to pay attorney’s fees. Mayer, 309 S.W.3d at 556. But where such a claim arises from an 

order originally imposing community supervision, the defendant must bring it in a direct appeal 

from that order or risk forfeiture. Wiley v. State, 410 S.W.3d 313, 318 (Tex. Crim. App. 2013). 

The claim is forfeited if the defendant was aware of his obligation to pay the fees but did not 

bring the claim in a direct appeal. Riles v. State, 452 S.W.3d 333, 337 (Tex. Crim. App. 2015).

Analysis

Appellant argues that the trial court erred by imposing attorney’s fees against him 

without evidence of his ability to pay them. He contends that we should modify the trial court’s 

judgment to delete the attorney’s fees. Alternatively, Appellant contends that we should remand 

his case for a hearing to determine whether attorney’s fees are included in the court cost 

assessment. We decline to do either. 
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First, we observe that although attorney’s fees were included in the original judgment 

when Appellant was placed on community supervision, it appears the attorney’s fees have 

already been removed from the final court cost assessment. The court cost assessment in the 

original judgment is $614. The bill of costs lists court costs totaling $614, including $300 in 

attorney’s fees. So without the attorney’s fees, the court costs are $314. But the assessment of 

court costs in the final judgment is $289. Thus, the bill of costs provides a basis for the final 

court cost assessment. See Johnson, 423 S.W.3d at 390.

Furthermore, even if the attorney’s fees were included in the final judgment, Appellant 

has forfeited his claim that they are improper. Because Appellant’s claim arises from the order 

originally imposing community supervision, he was required to bring it in a direct appeal from 

that order if he was aware of his obligation to pay the fees. See Wiley, 410 S.W.3d at 318; Riles, 

452 S.W.3d at 337. The record shows that Appellant was aware of this obligation. He signed his 

Conditions of Community Supervision, which provided that he was to “[p]ay all court cost [sic], 

including any appointed counsel fee at the rate of $20 each month beginning December, 2014.” 

He told the trial court that he had read all of his paperwork and discussed it with his attorney. 

We conclude that Appellant forfeited his claim by failing to bring it in a direct appeal from the 

order imposing community supervision. See id. Accordingly, we overrule Appellant’s sole issue. 

DISPOSITION

Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

JAMES T. WORTHEN

Chief Justice

Opinion delivered August 10, 2016.

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

AUGUST 10, 2016

NO. 12-15-00247-CR

CARLOS DEHENRI COOK,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 7th District Court 

of Smith County, Texas (Tr.Ct.No. 007-1536-13)

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

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment 

of the court below be in all things affirmed, and that this decision be certified to the court 

below for observance.

James T. Worthen, Chief Justice.

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