Troy Andre Marcel v. State

Opinion

Opinion issued April 24, 2014.

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-13-00317-CR ——————————— TROY ANDRE MARCEL, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 405th District Court Galveston County, Texas Trial Court Case No. 12CR0628

MEMORANDUM OPINION

A jury convicted appellant Troy Andre Marcel of the felony offense of

driving while intoxicated, enhanced as a habitual offender, and assessed his punishment at twenty-five years’ confinement. 1 Marcel’s sole issue asserts that the

trial court abused its discretion by assessing attorney’s fees against him because he

was indigent. The State concedes the error.

A trial court has the authority to order a defendant to repay fees for legal

services provided, if the court determines that a defendant has financial resources

enabling him to offset, in part or in whole, the costs of the legal services provided.

TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2012). However, “[a]

defendant who is determined by the court to be indigent is presumed to remain

indigent for the remainder of the proceedings in the case unless a material change

in the defendant’s financial circumstances occurs.” TEX. CODE CRIM. PROC. ANN.

art. 26.04(p) (West Supp. 2013).

Here, the record reflects that the trial court found Marcel indigent for

purposes of trial and later, for purposes of appeal. Marcel was represented by

appointed counsel throughout both proceedings. Although the judgment states that

attorney’s fees are “to be assessed” in Marcel’s case, there is nothing in the record

indicating that the trial court reconsidered its determination of indigency, that a

material change in Marcel’s financial circumstances occurred, or that the trial court

made a finding regarding Marcel’s ability to pay attorney’s fees. See Mayer v.

State, 309 S.W.3d 552, 556–57 (Tex. Crim. App. 2010); see also Byrd v. State, 01-

1 See TEX. PENAL CODE ANN. §§ 49.04(a), 49.09(b)(2) (West Supp. 2012); see also TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2008).

2 12-00930-CR, 2013 WL 5947975, at *2 (Tex. App.—Houston [1st Dist.] Nov. 5,

2013, no pet.) (mem. op., not designated for publication); Navarro v. State, No.

01–12–00415–CR, 2013 WL 2456799, at *2 (Tex. App.—Houston [1st Dist.] June

6, 2013, no pet.) (mem. op., not designated for publication). As such, the record

does not support an assessment of attorney’s fees because Marcel is presumed

indigent. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p).

Accordingly, we modify the trial court’s judgment to delete the entry of “to

be assessed” with regard to attorney’s fees.

We affirm the trial court’s judgment as modified.

Jim Sharp Justice

Panel consists of Justices Jennings, Higley, and Sharp.

Do not publish. TEX. R. APP. P. 47.2(b).