Kirk D. Beck A/K/A Kirk Darwin Beck v. State

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NUMBER 13-11-00646-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

KIRK D. BECK A/K/A KIRK DARWIN BECK, Appellant,

v. THE STATE OF TEXAS, Appellee.

On appeal from the 252nd District Court of Jefferson County, Texas.

MEMORANDUM OPINION1 Before Justices Rodriguez, Benavides, and Perkes Memorandum Opinion by Justice Perkes Appellant Kirk D. Beck a/k/a Kirk Darwin Beck appeals his conviction for injury to

an elderly individual, a third-degree felony. See TEX. PENAL CODE ANN. § 22.04 (a)(3)(f) (West 2011). By one issue, appellant challenges the sufficiency of the evidence to

1 This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).

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support the trial court’s judgment that he pay attorney’s fees despite his indigency. We affirm as modified.

I. BACKGROUND2

Appellant was indicted for the felony offense of injury to an elderly individual. After appellant pleaded guilty, the trial court deferred the adjudication of his guilt and placed him on community supervision for ten years. The trial court subsequently revoked appellant’s unadjudicated community supervision after he pleaded true to violating the terms and conditions of his community supervision. Upon finding appellant guilty, the trial court sentenced him to twenty years' confinement in the Texas Department of Criminal Justice, Institutional Division, and it assessed $619.00 in court costs and $2,920.00 in administrative fees against him. The trial court’s Revocation Restitution/Reparation Balance Sheet itemized the fees, which included $1,000.00 in attorney’s fees. This appeal followed.

II. ATTORNEY’S FEES

By a single issue on appeal, appellant argues that the trial court erred in assessing attorney’s fees against him because it had previously determined that he was indigent.3 The court costs and administrative fees assessed against appellant are itemized in the trial court’s Revocation Restitution/Reparation Balance Sheet, which was attached to the

Judgment Adjudicating Guilt, as follows: 2 Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4. 3 The State concedes that appellant was indigent and that the trial court should not have taxed attorney’s fees against him. While the State's confession of error in a criminal case is an important factor, it is not conclusive, and the appellate court must make an independent examination of the merits of any issue raised on appeal. Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002).

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ADMINISTRATIVE FINANCIAL OBLIGATIONS:

A. SUPERVISION FEES Amount Owed: $ 1020.00 B. BMT CS FEE Amount Owed: $ 50.00 C. PSI FEE Amount Owed: $ 350.00 D. FINE Amount Owed: $ 500.00 E. COURT COST Amount Owed: $ 295.00 F. ATTORNEY[‘S] FEE[S] Amount Owed: $ 1000.00 G. TRANS FEE Amount Owed: $ 0.00 H. REVOCATION COURT COSTS Amount Owed: $ 324.00

Appellant contends that the $1000.00 attorney’s fees were newly imposed by the trial court at the revocation hearing and, given that appellant was indigent, improper.

The record does not indicate whether the attorney’s fees originated from the revocation hearing or from previous proceedings. But, the record does confirm that the trial court had previously determined appellant to be indigent, and there is no evidence in the record suggesting that his circumstances had changed by the time of his adjudication hearing. The State does not dispute that appellant was indigent and remained indigent throughout the proceedings in this case. And it is true that a defendant determined to be indigent cannot be charged for legal services provided to him. See Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010) (concluding that a "defendant's financial resources and ability to pay are explicit critical elements in the trial court's determination of the propriety of ordering reimbursement of costs and fees."); see also TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2011) ("If the court determines that a defendant has financial resources that enable him to offset in part or in whole the costs of the legal services provided, including any expenses and costs, the court shall order the defendant to pay during the pendency of the charges or, if convicted, as court costs the amount that it finds the defendant is able to pay."); id. art. 26.04(p) (West Supp. 2011) ("A defendant *4 who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant's financial circumstances occurs."). Therefore, as the State concedes, the trial court erred in assessing $1,000.00 in attorney's fees against appellant.4 We sustain appellant’s issue as to the trial court's assessment of attorney's fees.

III. CONCLUSION

Because the trial court's judgment was impermissible under the law and facts in this case, we delete that portion of the judgment assessing $1,000.00 in attorney's fees against appellant. We affirm the judgment as modified.

GREGORY T. PERKES Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 23rd day of August, 2012.

4 This is not to suggest that a court cannot condition community supervision on payment of attorney’s fees. On the contrary, the Texas Code of Criminal Procedure expressly allows such conditions. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 11(a)(11) (West 2006). But, “agreeing to pay attorney’s fees as a condition of community supervision and having the actual ability to pay those fees are two entirely different concepts.” Wolfe v. State, No. 07-10-0201-CR, 2012 Tex. App. LEXIS 5368, at *11 (Tex. App.—Amarillo Jul. 6, 2012, no pet. h.), reh’g denied, No. 07-10-0201-CR, 2012 Tex. App. LEXIS 5483, at *1 (Tex. App.—Amarillo Jul. 10, 2012) (en banc). The trial court officially revoked appellant’s unadjudicated community supervision. At issue is whether the trial court could then enforce attorney’s fees as part of its Judgment Adjudicating Guilt. Given that “[a] defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant's financial circumstances occurs,” TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2011), the trial court could not impose attorney’s fees against appellant as part of the judgment absent some evidence that his circumstances had changed since the indigency determination. Under Mayer, because no such evidence appears in the record, appellant’s indigent status is presumed to have continued, and he could not thus be ordered to pay attorney’s fees. See Mayer, 309 S.W.3d at 556; see also Derby v. State, No. 09-11-00256-CR, 2011 Tex. App. LEXIS 9810, at *7 (Tex. App.—Beaumont Oct. 17, 2011, no pet.) (mem. op., not designated for publication).