Larry Randall Steele v. State ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00424-CR
LARRY RANDALL STEELE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 278th District Court
Madison County, Texas
Trial Court No. 11,379
MEMORANDUM OPINION
Larry Randall Steele was convicted in a bench trial of the offense of possession of
cocaine less than one gram. TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2010).
He was sentenced to two years confinement in a state jail facility. The trial court
assessed attorney’s fees in the judgment. In one issue, Steele challenges the sufficiency
of the evidence to support the trial court’s assessment of attorney’s fees. We modify the
trial court’s judgment, and affirm it as modified.
For the purposes of assessing attorney's fees, once an accused is found to be
indigent, he is presumed to remain so through the proceedings absent proof of a
material change in his circumstances. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West
Supp. 2011); Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Watkins v. State,
333 S.W.3d 771, 782 (Tex. App.—Waco 2010, pet. ref’d). Accordingly if the defendant is
found to be indigent at the outset of trial, there must be some evidence presented to the
trial court of a change in financial circumstances before attorney's fees can be assessed
against the defendant. See Mayer, 309 S.W.3d at 553.
In this case, Steele was found to be indigent prior to trial and was appointed trial
counsel. No evidence indicating a change in his financial circumstances was proffered
during the trial. Additionally, the trial court determined that Steele was indigent for
purposes of appeal, ordered the appointment of appellate counsel, and granted Steele a
free record on appeal on account of his indigence. The State agrees that there is no
evidence to support the trial court’s assessment of attorney’s fees. Accordingly, as the
presumption of indigence remains, we hold that the evidence is insufficient to support
the trial court's assessment of attorney’s fees. See TEX. CODE CRIM. PROC. ANN. art.
26.04(p) (West Supp. 2011); Mayer, 309 S.W.3d at 557; Watkins, 333 S.W.3d 771, 782.
Steele’s sole issue is sustained.
Having found the evidence to be insufficient, we modify the trial court's
judgment to delete the order to pay attorney's fees and order Steele to pay only the costs
Steele v. State Page 2
of court in the amount of $280.00. See Mayer, 309 S.W.3d at 557. The trial court’s
judgment, as modified, is affirmed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed as modified
Opinion delivered and filed December 7, 2011
Do not publish
[CR25]
Steele v. State Page 3