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).
3