Kendrick Dawone Ross v. State

NO. 12-13-00258-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

KENDRICK DAWONE ROSS, § APPEAL FROM THE 241ST APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION Kendrick Dawone Ross appeals his conviction for injury to a child. The trial court sentenced him to twenty years of imprisonment. On appeal, Appellant contends the trial court erred in assessing attorney’s fees against him and the judgment incorrectly reflects trial counsel’s name. We modify the trial court’s judgment and, as modified, affirm.

BACKGROUND Appellant pleaded guilty to injury to a child. The trial court found Appellant guilty and sentenced him to twenty years of imprisonment. Additionally, the court ordered him to pay court costs in the amount of $669.00.

ATTORNEY’S FEES In his first issue, Appellant contends the trial court erred in assessing attorney’s fees against him. He argues that the trial court determined that he is indigent and appointed counsel to represent him. Therefore, the judgment should be reformed to delete the $300.00 attorney’s fee assessed against him. The State concedes the error. The record shows that the trial court found Appellant indigent and appointed counsel. The bill of costs from the district clerk’s office reflects a total outstanding balance of $669.00, which includes a $300.00 assessment for attorney’s fees. The judgment orders Appellant to pay $669.00

in court costs. Additionally, an order to withdraw funds for the full amount of court costs, including the attorney’s fees, was rendered ordering payment of the costs out of Appellant’s inmate trust account. This order was incorporated into the judgment. Unless a material change in a criminal defendant’s financial resources is established by competent legal evidence, once that defendant has been found to be indigent, he is presumed to remain indigent for the remainder of the proceedings. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2013). Without record evidence demonstrating a defendant’s financial resources to offset the costs of legal services, a trial court errs if it orders reimbursement of court appointed attorney’s fees. Williams v. State, 332 S.W.3d 694, 699 (Tex. App.–Amarillo 2011, pet. denied). Here, both sides agree that there is nothing in the record to indicate that Appellant’s indigent status has changed. Therefore, the trial court erred in ordering Appellant to pay the attorney’s fees. Likewise, the court’s order to withdraw funds, which is incorporated into the judgment, erroneously orders payment of the full $669.00 out of Appellant’s inmate trust account. We sustain Appellant’s first issue.

TRIAL COUNSEL In his second issue, Appellant asserts that the judgment erroneously reflects that he was represented at trial by Austin Reeve Jackson. The record shows that he was represented at trial by Donald S. Davidson. Accordingly, we sustain Appellant’s second issue.

DISPOSITION Where, on appeal, this court has the information necessary for reformation, the judgment will be reformed and corrected on appeal. See Stokes v. State, 688 S.W.2d 539, 542 (Tex. Crim. App. 1985). Accordingly, we modify the trial court’s judgment and the order to withdraw funds to reflect that the amount of court costs is $369.00. We further modify the judgment to reflect that Appellant’s trial counsel was Mr. Donald S. Davidson. As modified, we affirm the trial court’s judgment. SAM GRIFFITH Justice

Opinion delivered May 7, 2014. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MAY 7, 2014

NO. 12-13-00258-CR

KENDRICK DAWONE ROSS, Appellant V. THE STATE OF TEXAS, Appellee

Appeal from the 241st District Court of Smith County, Texas (Tr.Ct.No. 241-1693-12)

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 trial court’s judgment below should be modified and, as modified, affirmed.

It is therefore ORDERED, ADJUDGED and DECREED that the trial court’s judgment and the order to withdraw funds below be modified to reflect that the amount of court costs is $369.00. Further, it is ORDERED, ADJUDGED and DECREED that the trial court’s judgment be modified to reflect that trial counsel was Donald S. Davidson; and as modified, the trial court’s judgment is affirmed; and that the decision be certified to the court below for observance.

Sam Griffith, Justice. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.