Timothy Darwin Eiland v. State ( 2019 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-19-00044-CR
TIMOTHY DARWIN EILAND, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 188th District Court
Gregg County, Texas
Trial Court No. 47202-A
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Justice Stevens
MEMORANDUM OPINION
Timothy Darwin Eiland entered an open plea of guilty to the offense of failing to register
as a sex offender. See TEX. CODE CRIM. PROC. ANN. art. 62.102. After a bench trial on punishment,
Eiland was sentenced to fifteen years’ imprisonment and was ordered to pay $1,360.00 in attorney
fees for court-appointed counsel.
On appeal, Eiland argues that (1) the trial court erred in assessing attorney fees against him
because he is indigent and (2) the clerical errors in the trial court’s judgment must be modified.
The State concedes these points of error. We modify the trial court’s judgment by deleting the
assessment of attorney fees and correcting the clerical errors. As modified, we affirm the trial
court’s judgment.
I. We Delete the Assessment of Attorney Fees Because Eiland Is Indigent
Because the trial court found Eiland indigent, he was presumed to remain indigent absent
proof of a material change in his circumstances. See TEX. CODE CRIM. PROC. ANN. arts. 26.04(p),
26.05(g) (Supp.); Walker v. State, 557 S.W.3d 678, 689 (Tex. App.—Texarkana 2018, pet. ref’d).
Even so, the trial court, which also found Eiland indigent after trial, assessed $1,360.00 in attorney
fees against him.
Under Article 26.05(g) of the Texas Code of Criminal Procedure, a trial court has the
authority to order the reimbursement of court-appointed attorney fees only if “the judge determines
that a defendant has financial resources that enable the defendant to offset in part or in whole the
costs of the legal services provided . . . including any expenses and costs.” TEX. CODE CRIM. PROC.
ANN. art. 26.05(g). “[T]he defendant’s financial resources and ability to pay are explicit critical
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elements in the trial court’s determination of the propriety of ordering reimbursement of costs and
fees” of legal services provided. Armstrong v. State, 340 S.W.3d 759, 765–66 (Tex. Crim. App.
2011) (quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)). Since there is no
finding of the ability of Eiland to pay them, the assessment of the attorney fees was erroneous. See
Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013); see also Mayer v. State, 309 S.W.3d
552 (Tex. Crim. App. 2010); Martin v. State, 405 S.W.3d 944, 946–47 (Tex. App.—Texarkana
2013, no pet.).
“Appellate courts ‘have the authority to reform judgments and affirm as modified in cases
where there is non reversible error.’” Walker, 557 S.W.3d at 690 (quoting Ferguson v. State, 435
S.W.3d 291, 294 (Tex. App.—Waco 2014, pet. struck) (comprehensively discussing appellate
cases that have modified judgments)). We sustain Eiland’s first point of error and modify the trial
court’s judgment by deleting the assessment of $1,360.00 for attorney fees.
II. We Modify the Judgment to Correct Clerical Errors
In his second point of error, Eliand argues that the trial court’s judgment contains two errors
requiring modification. First, Eiland notes that he entered an open plea, but the judgment states
that the terms of the plea bargain were “15 YEARS TDCJ.” Second, Eiland’s failure to register
as a sex offender was an offense under Article 62.102(b)(3) of the Texas Code of Criminal
Procedure, but the judgment mistakenly reflects that the statute of offense is contained in the Texas
Penal Code.
The State agrees, and the record reflects, that modification is required. We sustain Eiland’s
second point of error. As a result, we also modify the trial court’s judgment by (1) deleting the
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reference to “15 YEARS TDCJ” under the heading “Terms of Plea Bargain” and replacing it with
the notation “Not Applicable,” and (2) correcting the statute of offense section to show Eiland
violated Article 62.102(b)(3) of the Texas Code of Criminal Procedure.
III. Conclusion
We modify the trial court’s judgment by (1) deleting the assessment of $1,360.00 for
attorney fees, (2) deleting the reference to “15 YEARS TDCJ” under the heading “Terms of Plea
Bargain” and replacing it with the notation “Not Applicable,” and (3) correcting the statute of
offense section to show Eiland violated Article 62.102(b)(3) of the Texas Code of Criminal
Procedure. We affirm the trial court’s judgment, as modified.
Scott E. Stevens
Justice
Date Submitted: September 5, 2019
Date Decided: September 10, 2019
Do Not Publish
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