RED RIVER COUNTY

 District and County Attorney 

 Val J. Varley 

 400 N. Walnut Street 

 Clarksville, TX 75426-4012 

 (903)427-2009 Fax (903)427-5316 

December 29, 2014

Debbie Autrey, Clerk

Sixth Judicial District Court of Appeals

100 N. State Line Ave., Ste. 20

Texarkana, Texas 75501 

RE: Cause No. 06-14-00155-CR; Billy Wayne Marcy v. The State of Texas; 

in the Sixth Judicial District Court of Appeals at Texarkana

Dear Ms. Autrey:

The State of Texas (the State), by and through Val J. Varley, the elected 

County and District Attorney of Red River County, moves this Court 

to accept this letter brief in “another form in the interest of justice.” See Tex. R. 

App. P. 9.4. The State prays for such relief.

On December 3rd, the appellant, Billy Wayne Marcy, filed his brief that 

questioned whether the trial court erred in assessing attorney’s fees against him. 

The State will confess error and concede this point. See Gonzalez v. State, 973 

S.W.2d 427, 431 (Tex. App.--Austin 1998) (the judgment inaccurately reflected a 

prior conviction for burglary of a habitation; The State confesses error and 

concedes this point), aff ’d, 8 S.W.3d 640 (Tex. Crim. App. 2000).

A claim of insufficient evidence to support court-appointed attorney fees is 

reviewable on direct appeal. See Robert Shane Kinslow v. The State of Texas, No. 

06-14-00083-CR, 2014 Tex. App. LEXIS 13619, at * 3 (Tex. App.--Texarkana 

December 19, 2014, n.p.h.) (mem. op., not designated for publication) (citing 

Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)). In Kinslow, an 

appeal from Red River County, this Court held that “[c]ourt-appointed attorney 

fees cannot be assessed against an indigent person unless there is proof and a 

ACCEPTED

06-14-00155-cr

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

12/29/2014 3:35:40 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 12/30/2014 3:45:00 PM DEBBIE AUTREY Clerk
finding that he or she is no longer indigent.” See Kinslow, 2014 Tex. App. LEXIS 

13619, at * 4 (citing Cates v. State, 402 S.W.3d 250, 251-52 (Tex. Crim. App. 

2013); Mayer, 309 S.W.3d at 556-57)).

In the present case, it is undisputed that, before trial, the court determined 

that Marcy was indigent and appointed trial counsel to represent him. The court 

also appointed counsel to represent him on appeal. Nothing in this appellate record 

provided sufficient proof to support a finding, either express or implied, that Marcy 

was no longer indigent. Here, as in Kinslow, the assessment of attorney’s fees was 

erroneous; and therefore, the State will concede error. See id (citing Cates, 402 

S.W.3d at 252; Mayer, 309 S.W.3d at 552, Martin v. State, 405 S.W.3d 944, 946-47 

(Tex. App.--Texarkana 2013, no pet.)). This Court should modify the trial court’s 

judgment in CR01988 by deleting the attorney-fees component of the assessment 

and should affirm, as modified. See Tex. R. App. P. 43.2(b); Gonzalez, 973 S.W.2d 

at 431. The State prays for such relief along with any other relief, both at law and 

in equity, to which it may be justly and legally entitled.

Pursuant to Rule 9.4(i)(3) of the Texas Rules of Appellate Procedure, this 

letter brief was a computer-generated document and contained 528 words--not 

including the Appendix (not applicable here). The undersigned attorney certified 

that he relied on the word count of the computer program, which was used to 

prepare this document.

Sincerely,

/s/Val Varley

Val J. Varley