Daryl Glen Ferguson v. State

Opinion

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

Ferguson v. State Page 2 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]

Ferguson v. State Page 3