Opinion
No. 06-14-00049-CR
10-02-2014
ANTHONY LEE JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 124th District Court Gregg County, Texas
Trial Court No. 41,097-B
Before Morriss, C.J., Carter and Moseley, JJ.
MEMORANDUM OPINION
Anthony Lee Johnson appeals his conviction, on his open plea of guilty, of driving while intoxicated, subsequent offense. He raises a single contention of error, arguing that the trial court erred by ordering that he, an indigent person, pay fees of his court appointed counsel. The State has acknowledged this error, and likewise requests that we modify the judgment to eliminate the assessment of attorney fees.
The judgment itemizes the costs assessed against Johnson including $765.00 for attorney fees. Johnson was found indigent before trial, and there is no indication of any change in that status.
We have addressed this precise error numerous times. Court-appointed attorney fees cannot be assessed against an indigent defendant unless there is proof and a finding that such defendant is no longer indigent. Cates v. State, 402 S.W.3d 250, 251-52 (Tex. Crim. App. 2013); Mayer v State, 309 S.W. 3d 552, 555-56 (Tex. Crim. App. 2010). In this case, there is no such evidence or finding. Error is thus shown. Under such circumstances, the proper remedy is not to reverse the conviction; rather, the proper remedy is to modify the judgment by removing the fee assessment. Cates, 402 S.W.3d at 251-52; Mayer, 309 S.W.3d at 555-56; Martin v. State, 405 S.W.3d 944 (Tex. App.—Texarkana 2013, no pet.).
We modify the judgment of the trial court by deleting the assessment of attorney fees. As modified, the trial court's judgment is affirmed.
Jack Carter
Justice
Date Submitted: October 1, 2014
Date Decided: October 2, 2014
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