Kyle Bernard Davis v. State

• Court: Court of Appeals of Texas
• Decided: September 3, 2014
• Docket: 09-14-00065-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-14-00065-CR ____________________

KYLE BERNARD DAVIS, Appellant

V.

THE STATE OF TEXAS, Appellee

_______________________________________________________ ______________

On Appeal from the 221st District Court Montgomery County, Texas Trial Cause No. 12-04-03850 CR ________________________________________________________ _____________

MEMORANDUM OPINION

Kyle Bernard Davis was indicted for burglary of a habitation. Davis entered

into a plea bargain. The trial court deferred adjudication of guilt and placed him on

unadjudicated community supervision for five years. The State filed a motion to

revoke. After finding that Davis violated four terms of his community supervision,

the trial court adjudicated Davis guilty and sentenced him to eight years in prison.

Davis filed this appeal.

1 The trial court appointed defense counsel to represent Davis at trial and on

appeal, and the State does not dispute that Davis is indigent. In a single issue,

Davis argues the trial court abused its discretion by including attorney fees of $400

in the judgment adjudicating guilt when there was no showing that his finances had

undergone a material change. The State concedes error.

A defendant who previously has been found indigent is presumed to remain

indigent unless there has been a material change in his financial status. Wiley v.

State, 410 S.W.3d 313, 317 (Tex. Crim. App. 2013); Roberts v. State, 327 S.W.3d

880, 883-84 (Tex. App.—Beaumont 2010, no pet.). There is no evidence that

Davis’s financial status materially changed. He testified during the revocation

hearing that he does not own a car, receives approximately $200 a month for

service in the National Guard, and has difficulty keeping a steady job. He was

unemployed at the time of his arrest for the alleged community supervision

violations. He lived with his girlfriend and their one-year-old child, and paid $700

a month in rent for their apartment. His girlfriend earned $1,100 a month.

Throughout the trial proceedings and on appeal, Davis has been represented

by court-appointed counsel. As noted above, there is no evidence indicating any

material change in his financial status. Accordingly, we sustain Davis’s appellate

2 issue. We affirm the judgment as modified to delete the court’s order requiring

Davis to pay $400 in attorney fees. 1

AFFIRMED AS MODIFIED.

_________________________ LEANNE JOHNSON Justice Submitted on July 18, 2014 Opinion Delivered September 3, 2014 Do Not Publish

Before Kreger, Horton, and Johnson, JJ.

1 In its brief on appeal, the State also references another fee contained in the deferred adjudication order which orders Davis to pay “court-appointed attorney fees” of $300 as a term of the community supervision. The State suggests in a footnote contained in its appellate brief that perhaps Davis did not procedurally default on a challenge regarding the $300 fee. However, Davis never challenged the $300 fee below and he has not challenged it on appeal. Therefore, the propriety of that allocated cost item is not properly before us. Tex. R. App. P. 38.1(f), (h), (i). 3