Kyle Bernard Davis v. State ( 2014 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-14-00065-CR
____________________
KYLE BERNARD DAVIS, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the 221st District Court
Montgomery County, Texas
Trial Cause No. 12-04-03850 CR
________________________________________________________ _____________
MEMORANDUM OPINION
Kyle Bernard Davis was indicted for burglary of a habitation. Davis entered
into a plea bargain. The trial court deferred adjudication of guilt and placed him on
unadjudicated community supervision for five years. The State filed a motion to
revoke. After finding that Davis violated four terms of his community supervision,
the trial court adjudicated Davis guilty and sentenced him to eight years in prison.
Davis filed this appeal.
1
The trial court appointed defense counsel to represent Davis at trial and on
appeal, and the State does not dispute that Davis is indigent. In a single issue,
Davis argues the trial court abused its discretion by including attorney fees of $400
in the judgment adjudicating guilt when there was no showing that his finances had
undergone a material change. The State concedes error.
A defendant who previously has been found indigent is presumed to remain
indigent unless there has been a material change in his financial status. Wiley v.
State, 410 S.W.3d 313, 317 (Tex. Crim. App. 2013); Roberts v. State, 327 S.W.3d
880, 883-84 (Tex. App.—Beaumont 2010, no pet.). There is no evidence that
Davis’s financial status materially changed. He testified during the revocation
hearing that he does not own a car, receives approximately $200 a month for
service in the National Guard, and has difficulty keeping a steady job. He was
unemployed at the time of his arrest for the alleged community supervision
violations. He lived with his girlfriend and their one-year-old child, and paid $700
a month in rent for their apartment. His girlfriend earned $1,100 a month.
Throughout the trial proceedings and on appeal, Davis has been represented
by court-appointed counsel. As noted above, there is no evidence indicating any
material change in his financial status. Accordingly, we sustain Davis’s appellate
2
issue. We affirm the judgment as modified to delete the court’s order requiring
Davis to pay $400 in attorney fees. 1
AFFIRMED AS MODIFIED.
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LEANNE JOHNSON
Justice
Submitted on July 18, 2014
Opinion Delivered September 3, 2014
Do Not Publish
Before Kreger, Horton, and Johnson, JJ.
1
In its brief on appeal, the State also references another fee contained in the
deferred adjudication order which orders Davis to pay “court-appointed attorney
fees” of $300 as a term of the community supervision. The State suggests in a
footnote contained in its appellate brief that perhaps Davis did not procedurally
default on a challenge regarding the $300 fee. However, Davis never challenged
the $300 fee below and he has not challenged it on appeal. Therefore, the
propriety of that allocated cost item is not properly before us. Tex. R. App. P.
38.1(f), (h), (i).
3