Albert Eugene Jackson v. State ( 2011 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-11-00140-CR
Albert Eugene Jackson, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
NO. 67116, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant Albert Eugene Jackson pled guilty to injury to a child. See Tex. Penal
Code Ann. § 22.04 (West 2011). There was no plea bargain, and the trial court assessed punishment
at ten years’ imprisonment. In his only issue on appeal, Jackson contends that the evidence does not
support the court’s order that he pay his court-appointed attorney’s fees. The State concedes error.
A judge found Jackson to be indigent based on his completion of a financial
questionnaire in which Jackson stated that he was unemployed, had no income, owned no property,
and lived with his parents. Counsel was appointed to represent him until the “charges are dismissed,
the defendant is acquitted, appeals are exhausted, or until relieved by the court or replaced by other
counsel.” During Jackson’s punishment hearing, the trial court inquired whether Jackson had the
ability to work after his release from prison and then pay his attorney’s fees. Jackson answered
affirmatively. The trial court verbally ordered him to pay attorney’s fees in the case, but also
informed Jackson that both an attorney and the reporter’s record would be furnished to him on appeal
if he could not afford to pay for them. The trial court included in the judgment of conviction an
order requiring Jackson to pay attorney’s fees of $438.
Article 26.04 of the Texas Code of Criminal Procedure governs the procedures for
appointing counsel in a criminal case. Tex. Code Crim. Proc. Ann. art. 26.04 (West Supp. 2010).
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. Id. art. 26.04(p). A trial court’s authority to order a defendant to repay the
cost of court-appointed counsel depends upon the court’s determining that the “defendant has
financial resources that enable him to offset in part or in whole the costs of the legal services
provided.” Id. art. 26.05(g) (West Supp. 2010).
The defendant’s present financial resources and ability to pay are explicit
critical elements under article 26.05(g) that must be supported by record evidence. Mayer v. State,
309 S.W.3d 552, 556 (Tex. Crim. App. 2010). No trial objection is required to preserve the
sufficiency of the evidence for appellate review. Id. When the evidence does not support the order
to pay attorney’s fees, the proper remedy is to delete the order. Id. at 557.
Appointed counsel represented Jackson at trial after he was determined to be indigent
and continues to represent him on appeal. The State acknowledges that there is no evidence that
Jackson’s financial circumstances materially changed after the court’s initial finding of indigency.
Having carefully reviewed all of the record evidence in the light most favorable to the trial court’s
ruling, we agree with the parties that nothing in the record supports a finding that Jackson’s financial
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circumstances had materially changed. See id. (explaining standard of review that applies to trial
court’s decision to order defendant to pay attorney’s fees). As noted above, Jackson answered
affirmatively when the trial court inquired whether Jackson had the ability to work after his
release from prison and then pay his attorney’s fees. But Jackson’s affirmative answer is not
evidence that his financial circumstances had changed between the time of the trial court’s original
indigency determination and the court’s order to pay attorney’s fees; instead, it indicates a
mere possibility of changed future circumstances. See Roberts v. State, 327 S.W.3d 880, 883-84
(Tex. App.—Beaumont 2010, no pet.) (concluding that trial court’s presumption that defendant
might be able to find work in the future did not tend to prove that she presently had financial
resources enabling her to pay attorney’s fees).
We sustain Jackson’s sole issue. The trial court’s judgment is modified to delete the
order that Jackson pay $438 in attorney’s fees. As modified, the judgment of conviction is affirmed.
__________________________________________
Diane M. Henson, Justice
Before Chief Justice Jones, Justices Pemberton and Henson
Modified, and as Modified, Affirmed
Filed: December 16, 2011
Do Not Publish
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