Robert Lee Kegler v. State

Affirmed as Modified and Memorandum Opinion filed December 10, 2013.
In The
Fourteenth Court of Appeals
NO. 14-13-00254-CR
ROBERT LEE KEGLER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 405TH District Court
Galveston County, Texas
Trial Court Cause No. 10CR0196
MEMORANDUM OPINION
Appellant Robert Lee Kegler pleaded guilty to assault causing bodily
injury—family violence. In exchange for his guilty plea, the State agreed to
recommend punishment of three years’ deferred adjudication probation. On July
20, 2010, the trial court sentenced appellant, pursuant to the plea bargain
agreement, to three years’ deferred adjudication community supervision. On
October 13, 2011, appellant entered a plea of true to the State’s motion to
adjudicate guilt. The trial court, pursuant to a plea bargain agreement with the
State, assessed appellant’s punishment at five years’ community supervision. On
February 19, 2013, the trial court revoked appellant’s community supervision and
sentenced him to five years in prison. In a single issue on appeal, appellant
contends the “trial court erred in allowing costs of court and attorney fees to be
assessed against Appellant after the trial court had found him indigent.” We
modify the trial court’s judgment to delete the specific amount of costs and
attorney’s fees in the 2013 judgment, and affirm the judgment as modified.
In the 2010 judgment on deferred adjudication, the trial court assessed
$225.00 in court costs and $536.25 in attorney’s fees. Appellant did not appeal the
2010 judgment. In the 2011 judgment adjudicating appellant’s guilt, the trial court
assessed “$145.00 + 65.00” in court costs and “$376.25 + 669.50” in attorney’s
fees. Appellant did not appeal the 2011 judgment.
In the 2013 judgment the trial court assessed “$210.00 + 87.00” in court
costs and “$1045.75 + $ to be assessed” in attorney’s fees. After appellant filed his
brief in this case, the Galveston County District Clerk supplemented the clerk’s
record with an amended bill of costs reflecting court-ordered attorney’s fees in the
amount of $2,197.53. The amended bill of costs was prepared on October 4, 2013,
almost six months after the trial court signed the judgment assessing costs and
attorney’s fees.
Appellant argues that the evidence is insufficient to support the assessment
of costs and attorney’s fees, and that the trial court failed to find appellant was no
longer indigent.1 Article 26.05(g) of the Texas Code of Criminal Procedure
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The State argues that appellant waived his complaint as to costs and attorney’s fees
contained in the 2010 judgment ordering deferred adjudication and the 2011 judgment
adjudicating appellant’s guilt and ordering community supervision. The appeal filed in this court
is from the 2013 judgment only. To the extent it could be construed as an appeal from the earlier
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provides trial courts with discretionary authority to order reimbursement of
appointed attorney’s fees when the defendant has financial resources that enable
him to offset in part or in whole the costs of the legal services provided. Article
26.04(p) of the Texas Code of Criminal Procedure instructs that once a defendant
is determined to be indigent there is a presumption that he is indigent for the
remainder of the proceedings unless a material change in the defendant’s financial
circumstances occurs. The State concedes that appellant “has a valid insufficiency
claim regarding the assessment of attorney fees assessed as a result of the hearing
and judgment revoking community supervision.” We have reviewed the record
and agree with the State. Without evidence to demonstrate appellant’s financial
resources to offset the costs of the legal services, the trial court erred in ordering
reimbursement of appointed attorney fees. Mayer v. State, 309 S.W.3d 552, 555–
56 (Tex. Crim. App. 2010).
In Johnson v. State, 389 S.W.3d 513, 517 (Tex. App.—Houston [14th Dist.]
2012, pet. granted), this court held that if the record does not support the
assessment of a certain dollar amount in costs, the trial court errs in entering a
specific dollar amount in its judgment. Moreover, this court has previously
rejected a bill of costs prepared after the date of the judgment because there was no
evidence the bill had been presented to the trial court prior to the dollar amount
being included in the judgment. Flores v. State, — S.W.3d —, No. 14-12-00623-
CR, 2013 WL 5470048, at *16 (Tex. App.—Houston [14th Dist.] Oct. 1, 2013, no
pet. h.).
The trial court did not err in ordering appellant to pay court costs, as such
judgments, we hold appellant waived his right to appeal the 2010 and 2011 judgments. See
Manuel v. State, 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999) (holding that a defendant
placed on deferred adjudication community supervision may raises issues relating to the original
plea proceeding only in appeals taken when deferred adjudication community supervision is first
imposed).
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costs are mandated by law, but the court did err in entering a specific dollar
amount of costs and attorney’s fees without any support in the record for that
dollar amount. See Johnson, 389 S.W.3d at 516. Because there is no evidence in
the record to support the trial court’s assessment of attorney’s fees or of a specific
dollar amount of costs, we sustain appellant’s sole issue and modify the trial
court’s 2013 judgment to delete the specific dollar amount of costs and the
assessment for attorney’s fees. See id.; see also Mayer v. State, 309 S.W.3d at
554–56.
As modified, the judgment of the trial court is affirmed.
PER CURIAM
Panel consists of Justices McCally, Busby, and Donovan.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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