NO. 07-10-00337-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
JULY 29, 2011
REY MARTINEZ, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 60,684-E; HONORABLE DOUGLAS WOODBURN, JUDGE
Before CAMPBELL and HANCOCK , JJ., and BOYD, S.J.1
MEMORANDUM OPINION
A jury convicted appellant Rey Martinez of the offense of theft of property under
$1,500, third offense.2 Appellant then plead true to two prior state jail felony convictions
and the jury assessed punishment at ten years‟ confinement in prison and a fine of
1
John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
2
See Tex. Penal Code Ann. § 31.03(e)(4)(D) (West 2011) (providing theft of
property valued at less than $1,500 is a state jail felony if the defendant has two or more
prior final convictions of any grade of theft).
$10,000.3 Through two issues on appeal, appellant challenged the sufficiency of the
evidence supporting an elemental enhancement paragraph and the portion of the
judgment ordering his repayment of court-appointed attorney‟s fees. Finding appellant
voluntarily withdrew his sufficiency of the evidence issue and the judgment erroneously
requires appellant repay court-appointed attorney‟s fees, we will modify the judgment
and affirm it as modified.
Analysis
Because of the narrow issues on appeal, we will discuss only so much of the
factual background as necessary for our disposition.
First Issue: Sufficiency of Evidence of Prior Theft Convictions
A person commits the offense of theft if he unlawfully appropriates property with
the intent to deprive the owner of property. Tex. Penal Code Ann. § 31.03(a) (West
2011). A person commits the offense of theft--third offense if the value of the property
stolen is less than $1,500 and the defendant has two or more prior final convictions for
any grade of theft. Tex. Penal Code Ann. § 31.03(e)(4)(D) (West 2011). Thus, proof of
the offense requires sufficient evidence that appellant unlawfully appropriated property
with intent to deprive the owner of the property; the value of the property stolen was less
3
On a showing at the trial of a state jail felony that the defendant has two prior
final convictions for state jail felonies, on conviction the defendant shall be punished for
a third-degree felony. Tex. Penal Code Ann. § 12.42(a)(1) (West 2011). The range of
punishment for a third-degree felony is imprisonment for 2 to 10 years in the Texas
Department of Criminal Justice, and a fine not exceeding $10,000 may also be
assessed. Tex. Penal Code Ann. § 12.34(a)(b) (West 2011).
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than $1,500; and appellant was previously convicted two or more times of any grade of
theft. Lockett v. State, No. 01-03-0851-CR, 2004 Tex. App. Lexis 8782, at *4-*5
(Tex.App.--Houston [1st Dist.] Sept. 30, 2004, pet. refused) (mem. op., not designated
for publication).
In his brief, appellant argued the State offered insufficient evidence of one of the
two required prior theft convictions because the reporter‟s record omitted the judgment.
According to the trial record, at the beginning of the State‟s case-in-chief two judgments
showing appellant‟s prior convictions for theft were admitted in evidence. After
appellant filed his brief, a supplemental reporter‟s record containing the omitted
judgment was filed. With leave of court, appellant then filed a supplemental brief.
Therein he stated his first issue was “made moot by the sworn supplement to the record
filed by the trial court reporter.” He presents no further argument of the issue and his
prayer asks only for reformation of the judgment. We conclude appellant has voluntarily
withdrawn his first issue.
Second Issue: Assessment of Court-Appointed Attorney‟s Fees
In his second issue, appellant asserts the trial court abused its discretion by
ordering appellant to repay court-appointed attorney‟s fees. He asks us to reform the
judgment to delete the assessment of attorney‟s fees. According to the clerk‟s record,
trial counsel was appointed for appellant on the basis of indigence. A post-trial order
appointed appellate counsel for appellant, also on the ground of indigence. The
judgment, among other things, orders appellant to pay court costs. As for the amount of
court costs, the judgment provides “see attached.” Immediately following the judgment
3
in the clerk‟s record appears a bill of costs issued two days after imposition of sentence.
Among the items listed on the bill of costs is “Attorney Fees (Court Appointed) $4,500.”
A trial court has authority to order reimbursement of the fees of court-appointed
counsel 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. Tex. Code Crim.
Proc. Ann. art. 26.05(g) (West Supp. 2010); Mayer v. State, 274 S.W.3d 898, 901
(Tex.App.--Amarillo 2008), aff'd, 309 S.W.3d 552 (Tex.Crim.App. 2010). But “[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. 2010). “[T]he 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.” Mayer, 309 S.W.3d at 556. Accordingly, the record
must supply a factual basis supporting a determination the defendant is capable of
repaying the attorney's fees levied. Barrera v. State, 291 S.W.3d 515, 518 (Tex.App.--
Amarillo 2009, no pet.) (per curiam).
Here, the record does not show the trial court reconsidered its determination of
indigency, the occurrence of a material change in appellant‟s financial circumstances, or
his ability to offset the cost of legal services provided. Tex. Code Crim. Proc. Ann. art.
26.04(p) and art. 26.05(g) (West Supp. 2010). We agree with appellant, and the State
concedes, there is no evidence appellant is able to repay the $4,500 attorney‟s fee
assessment. Appellant‟s second issue is sustained.
4
Conclusion
We modify the judgment of the trial court as follows. At page 2, beneath the
heading “Furthermore, the following special findings or orders apply:” there is added,
“As used in this judgment, the term „court costs‟ does not include court-appointed
attorney‟s fees.” As so modified, we affirm the trial court‟s judgment. Tex. R. App. P.
43.2(b).
James T. Campbell
Justice
Do not publish.
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