Jon Carroll Roy v. State

Opinion

NUMBER 13-11-00661-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JON CARROLL ROY, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 252nd District Court of Jefferson County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion by Chief Justice Valdez Appellant, Jon Carroll Roy, was convicted of burglary of a habitation and

sentenced to twenty years’ confinement. See TEX. PENAL CODE ANN. § 30.02 (West

2011). By one issue, Roy contends that “there was insufficient evidence for the trial

court to include $1000 in administrative costs in [his] judgment in violation of Article

26.05(g) of the Texas Code of Criminal Procedure.” See TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2011). We modify the judgment and affirm the judgment as

modified.

I. BACKGROUND1

Roy entered a plea of guilty to the offense of burglary of a habitation on

December 9, 2008. See TEX. PENAL CODE ANN. § 30.02. On March 2, 2009, the trial

court deferred adjudication and placed Roy on five years’ community supervision. 2 On

September 19, 2011, Roy entered pleas of “true” to several allegations that he violated

the terms of community supervision. The trial court revoked Roy’s community

supervision, found him guilty of the offense, and assessed punishment at twenty years’

confinement. The trial court ordered Roy to pay $1,000 in attorney’s fees. This appeal

followed.

II. DISCUSSION

By his sole issue, Roy contends that the evidence is insufficient to support the

trial court’s order requiring him to repay the cost of his court-appointed attorney. The

State agrees with Roy and requests that we modify the judgment to subtract the $1,000

in attorney’s fees.

Article 26.05(g) provides the following:

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, the court shall order the defendant to pay during the pendency of the charges or, if convicted, as court costs the amount that it finds the defendant is able to pay.

1 This case is before the Court on transfer from the Ninth Court of Appeals in Beaumont pursuant to a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005). 2 Additionally, the trial court assessed a $500.00 fine.

2 TEX. CODE CRIM. PROC. ANN. art. 26.05(g). Without evidence in the record

demonstrating that a defendant has the financial ability to offset the costs of legal

services, a trial court errs by ordering reimbursement of court-appointed attorney’s fees.

See Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010).

Here, the record reflects that Roy appeared before the trial court when he

pleaded guilty to the charged offense and at the subsequent adjudication proceeding.

On both occasions, the trial court determined that Roy was indigent and appointed an

attorney to represent him. Further, after adjudication of the primary offense, appellant

was appointed counsel for appeal. However, the record is totally devoid of any

evidence regarding his financial ability to pay for the legal services provided. See id.

Therefore, the trial court erred when it assessed court-appointed attorney’s fees against

appellant. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g); Mayer, 309 S.W.3d at 557.

Accordingly, we sustain Roy’s sole issue.

III. CONCLUSION

The judgment is modified to delete the assessment of $1,000 in attorney’s fees.

The trial court’s judgment is affirmed as modified.

__________________ ROGELIO VALDEZ Chief Justice

Do not Publish. TEX. R. APP. P. 47.2(b) Delivered and filed the 29th day of March, 2012.