NUMBER 13-11-00646-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
KIRK D. BECK
A/K/A KIRK DARWIN BECK, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 252nd District Court
of Jefferson County, Texas.
MEMORANDUM OPINION1
Before Justices Rodriguez, Benavides, and Perkes
Memorandum Opinion by Justice Perkes
Appellant Kirk D. Beck a/k/a Kirk Darwin Beck appeals his conviction for injury to
an elderly individual, a third-degree felony. See TEX. PENAL CODE ANN. § 22.04 (a)(3)(f)
(West 2011). By one issue, appellant challenges the sufficiency of the evidence to
1
This case is before this Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005).
support the trial court’s judgment that he pay attorney’s fees despite his indigency. We
affirm as modified.
I. BACKGROUND2
Appellant was indicted for the felony offense of injury to an elderly individual.
After appellant pleaded guilty, the trial court deferred the adjudication of his guilt and
placed him on community supervision for ten years. The trial court subsequently
revoked appellant’s unadjudicated community supervision after he pleaded true to
violating the terms and conditions of his community supervision. Upon finding appellant
guilty, the trial court sentenced him to twenty years' confinement in the Texas Department
of Criminal Justice, Institutional Division, and it assessed $619.00 in court costs and
$2,920.00 in administrative fees against him. The trial court’s Revocation
Restitution/Reparation Balance Sheet itemized the fees, which included $1,000.00 in
attorney’s fees. This appeal followed.
II. ATTORNEY’S FEES
By a single issue on appeal, appellant argues that the trial court erred in assessing
attorney’s fees against him because it had previously determined that he was indigent.3
The court costs and administrative fees assessed against appellant are itemized in the
trial court’s Revocation Restitution/Reparation Balance Sheet, which was attached to the
Judgment Adjudicating Guilt, as follows:
2
Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
3
The State concedes that appellant was indigent and that the trial court should not have taxed
attorney’s fees against him. While the State's confession of error in a criminal case is an important factor,
it is not conclusive, and the appellate court must make an independent examination of the merits of any
issue raised on appeal. Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App. 2002).
2
ADMINISTRATIVE FINANCIAL OBLIGATIONS:
A. SUPERVISION FEES Amount Owed: $ 1020.00
B. BMT CS FEE Amount Owed: $ 50.00
C. PSI FEE Amount Owed: $ 350.00
D. FINE Amount Owed: $ 500.00
E. COURT COST Amount Owed: $ 295.00
F. ATTORNEY[‘S] FEE[S] Amount Owed: $ 1000.00
G. TRANS FEE Amount Owed: $ 0.00
H. REVOCATION COURT COSTS Amount Owed: $ 324.00
Appellant contends that the $1000.00 attorney’s fees were newly imposed by the
trial court at the revocation hearing and, given that appellant was indigent, improper.
The record does not indicate whether the attorney’s fees originated from the
revocation hearing or from previous proceedings. But, the record does confirm that the
trial court had previously determined appellant to be indigent, and there is no evidence in
the record suggesting that his circumstances had changed by the time of his adjudication
hearing. The State does not dispute that appellant was indigent and remained indigent
throughout the proceedings in this case. And it is true that a defendant determined to be
indigent cannot be charged for legal services provided to him. See Mayer v. State, 309
S.W.3d 552, 556 (Tex. Crim. App. 2010) (concluding that a "defendant's financial
resources and ability to pay are explicit critical elements in the trial court's determination
of the propriety of ordering reimbursement of costs and fees."); see also TEX. CODE CRIM.
PROC. ANN. art. 26.05(g) (West Supp. 2011) ("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."); id. art. 26.04(p) (West Supp. 2011) ("A defendant
3
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."). Therefore, as the State concedes, the trial court erred
in assessing $1,000.00 in attorney's fees against appellant.4 We sustain appellant’s
issue as to the trial court's assessment of attorney's fees.
III. CONCLUSION
Because the trial court's judgment was impermissible under the law and facts in
this case, we delete that portion of the judgment assessing $1,000.00 in attorney's fees
against appellant. We affirm the judgment as modified.
GREGORY T. PERKES
Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the
23rd day of August, 2012.
4
This is not to suggest that a court cannot condition community supervision on payment of
attorney’s fees. On the contrary, the Texas Code of Criminal Procedure expressly allows such conditions.
See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 11(a)(11) (West 2006). But, “agreeing to pay attorney’s
fees as a condition of community supervision and having the actual ability to pay those fees are two entirely
different concepts.” Wolfe v. State, No. 07-10-0201-CR, 2012 Tex. App. LEXIS 5368, at *11 (Tex.
App.—Amarillo Jul. 6, 2012, no pet. h.), reh’g denied, No. 07-10-0201-CR, 2012 Tex. App. LEXIS 5483, at
*1 (Tex. App.—Amarillo Jul. 10, 2012) (en banc). The trial court officially revoked appellant’s
unadjudicated community supervision. At issue is whether the trial court could then enforce attorney’s
fees as part of its Judgment Adjudicating Guilt. Given that “[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. 2011), the trial court could not impose attorney’s fees against appellant as part of the
judgment absent some evidence that his circumstances had changed since the indigency determination.
Under Mayer, because no such evidence appears in the record, appellant’s indigent status is presumed to
have continued, and he could not thus be ordered to pay attorney’s fees. See Mayer, 309 S.W.3d at 556;
see also Derby v. State, No. 09-11-00256-CR, 2011 Tex. App. LEXIS 9810, at *7 (Tex. App.—Beaumont
Oct. 17, 2011, no pet.) (mem. op., not designated for publication).
4
Kirk D. Beck A/K/A Kirk Darwin Beck v. State
Combined Opinion