Daryl Glen Ferguson v. State ( 2016 )

IN THE
TENTH COURT OF APPEALS
No. 10-16-00231-CR
DARYL GLEN FERGUSON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 77th District Court
Limestone County, Texas
Trial Court No. 13672-A
MEMORANDUM OPINION
Daryl Glen Ferguson pled guilty without the benefit of a plea bargain to the
offense of Hindering Secured Creditors in the amount of more than $1,500 but less than
$20,000. See TEX. PENAL CODE ANN. § 32.33(d)(4) (West 2011). An adjudication of guilt
was deferred, and Ferguson was placed on community supervision for a period of five
years. Because the trial court erred in assessing attorney’s fees, the trial court’s Order of
Deferred Adjudication is modified and affirmed as modified.
ATTORNEY’S FEES
In his first issue, Ferguson complains that the trial court erred in assessing
attorney's fees in the Order of Deferred Adjudication because there was no evidence that
Ferguson’s finances had undergone a material change since he was determined to be
indigent during the underlying proceedings. In the last paragraph in the Order of
Deferred Adjudication, the trial court orders Ferguson “TO PAY COURT APPOINTED
ATTORNEY’S FEES.” No amount was set. The State agrees that the evidence was
insufficient to support the assessment of attorney’s fees. In accordance with the opinion
of the Court of Criminal Appeals in Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App.
2010), we agree that the evidence was insufficient and the judgment should be modified
to delete this assessment. See Watkins v. State, 333 S.W.3d 771, 782 (Tex. App.—Waco
2010, pet. ref’d). Ferguson’s first issue is sustained.
COSTS
In his next two issues, Ferguson asserts that the trial court erred in assessing costs
against him because he is indigent and because the statute that authorizes the assessment
of costs against indigent criminal defendants is unconstitutional as applied to Ferguson
and violates his right to equal protection. This Court has discussed these same issues in
its opinions, Martinez v. State, No. 10-16-00217-CR, 2016 Tex. App. LEXIS 12948, *3 (Tex.
App.—Waco Dec. 7, 2016, no pet. h.) (publish), and Perez v. State, No. 10-16-00029-CR
2016 Tex. App. LEXIS _____, *__ (Tex. App.—Waco Dec. 21, 2016, no pet. h.) (not
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designated for publication). For the reasons expressed in Martinez, Ferguson’s second
and third issues are overruled.
CONCLUSION
The evidence was insufficient for the trial court to have assessed attorney's fees,
therefore, the Order of Deferred Adjudication is modified to delete the phrase, “AND TO
PAY COURT APPOINTED ATTORNEY’S FEES.” Having found no other reversible
error, we affirm the trial court's judgment as modified.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed as modified
Opinion delivered and filed December 21, 2016
Do not publish
[CR25]
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