Nuru Nathan Tinch, Jr. v. State

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-20-00056-CR
NURU NATHAN TINCH, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th District Court
Gregg County, Texas
Trial Court No. 49005-B
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Charged with aggravated assault with a deadly weapon that caused serious bodily injury
to a member of his household, Nuru Nathan Tinch, Jr., entered an open plea of guilty. See TEX.
PENAL CODE ANN. § 22.02(b)(1). After a punishment trial to the bench, Tinch was sentenced to
thirty-two years’ imprisonment and was ordered to pay $1,076.67 in attorney fees for his court-
appointed counsel.
In his sole point of error on appeal, Tinch argues that we should delete the assessment of
attorney fees against him because he is indigent. Because we agree, we modify the clerk’s bill of
costs and the judgment by deleting the assessment of attorney fees. We also modify the trial
court’s judgment to reflect the correct statute of offense and affirm the judgment, as modified.
Because the trial court found Tinch 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 Tinch indigent after trial for purposes of
appeal, assessed $1,076.67 in attorney fees against him. This fee is reflected in the clerk’s bill of
costs.
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 court
determines that a defendant has financial resources that enable him 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
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critical 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 that Tinch could 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, 293 (Tex. App.—Waco 2014, pet. struck) (comprehensively discussing
appellate cases that have modified judgments)). We sustain Tinch’s sole point of error.
We also note that the trial court’s judgment lists “22.02(B)(1)” as the statute of offense
instead of “22.02(b)(1).” See TEX. PENAL CODE ANN. § 22.02(b)(1) (Supp.).
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We modify the clerk’s bill of costs and the judgment by deleting the assessment of
attorney fees. We also modify the trial court’s judgment to reflect that the correct statute of
offense is Section 22.02(b)(1) of the Texas Penal Code. As modified, the trial court’s judgment
is affirmed.
Josh R. Morriss, III
Chief Justice
Date Submitted: October 15, 2020
Date Decided: October 20, 2020
Do Not Publish
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