Lorena Candice Brooks v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-09-00728-CR
Lorena Candice Brooks, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 53267, HONORABLE JOE CARROLL, JUDGE PRESIDING
MEMORANDUM OPINION
Lorena Candice Brooks appeals an order revoking community supervision and
imposing a nine-year sentence for assaulting a public servant. See Tex. Penal Code Ann. § 22.01
(West Supp. 2009). The revocation order contains an order that appellant pay $1699 in attorney’s
fees following her release. See Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2009).
Appellant’s sole contention on appeal is that there is insufficient evidence to support this order. The
State concedes error. We modify the revocation order to delete the requirement that appellant pay
attorney’s fees and affirm the order as modified.
Following her arrest in 2002, appellant completed a financial questionnaire reflecting
that she was unemployed, had no income or property, and received no government benefits. An
attorney was appointed to represent her. See id. art. 26.04. Appellant was also represented by
appointed counsel at the revocation proceeding, and she is represented by appointed counsel on
appeal. At the revocation hearing in September 2009, appellant told the court that she had been
employed at a fast-food restaurant before her arrest on the capias. There is, however, no record of
a determination that appellant’s financial circumstances have materially changed and that she is no
longer indigent. See id. art. 26.04(p).
The defendant’s financial resources and ability to pay are explicit critical elements
in the trial court’s determination of the propriety of ordering reimbursement of costs and fees under
article 26.05(g). Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). No trial objection
is required to challenge the sufficiency of the evidence regarding the defendant’s ability to pay. Id.
The State concedes that there is no evidence that appellant is able to pay attorney’s fees as ordered.
We agree that there is insufficient evidence of appellant’s ability to pay the attorney’s
fees. The proper remedy is to delete the order. Id. at 557. Accordingly, the order revoking
community supervision is modified to delete the order that appellant pay $1699 in attorney’s fees
upon her release. As modified, the revocation order is affirmed.
__________________________________________
J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Pemberton and Waldrop
Modified and, as Modified, Affirmed
Filed: August 4, 2010
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