Anthony Lee Johnson v. State

• Court: Court of Appeals of Texas
• Decided: October 2, 2014
• Docket: 06-14-00049-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-14-00049-CR

ANTHONY LEE JOHNSON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 124th District Court Gregg County, Texas Trial Court No. 41,097-B

Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION Anthony Lee Johnson appeals his conviction, on his open plea of guilty, of driving while

intoxicated, subsequent offense. He raises a single contention of error, arguing that the trial

court erred by ordering that he, an indigent person, pay fees of his court appointed counsel. The

State has acknowledged this error, and likewise requests that we modify the judgment to

eliminate the assessment of attorney fees.

The judgment itemizes the costs assessed against Johnson including $765.00 for attorney

fees. Johnson was found indigent before trial, and there is no indication of any change in that

status.

We have addressed this precise error numerous times. Court-appointed attorney fees

cannot be assessed against an indigent defendant unless there is proof and a finding that such

defendant is no longer indigent. Cates v. State, 402 S.W.3d 250, 251–52 (Tex. Crim. App.

2013); Mayer v State, 309 S.W. 3d 552, 555–56 (Tex. Crim. App. 2010). In this case, there is no

such evidence or finding. Error is thus shown. Under such circumstances, the proper remedy is

not to reverse the conviction; rather, the proper remedy is to modify the judgment by removing

the fee assessment. Cates, 402 S.W.3d at 251–52; Mayer, 309 S.W.3d at 555–56; Martin v. State,

405 S.W.3d 944 (Tex. App.—Texarkana 2013, no pet.).

2 We modify the judgment of the trial court by deleting the assessment of attorney fees.

As modified, the trial court’s judgment is affirmed.

Jack Carter Justice

Date Submitted: October 1, 2014 Date Decided: October 2, 2014

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