Gary Inman v. State

IN THE TENTH COURT OF APPEALS

No. 10-11-00284-CR

GARY INMAN,

Appellant v. THE STATE OF TEXAS,

Appellee

From the 52nd District Court Coryell County, Texas Trial Court No. FDWI-09-20104

MEMORANDUM OPINION

In one issue, appellant, Gary James Inman, complains that there is insufficient evidence to support the trial court’s judgment ordering him to pay his court-appointed attorney’s fees because he was determined to be indigent. We modify the judgment to delete the finding requiring Inman to pay his court-appointed attorney’s fees and affirm the judgment as modified.

I. BACKGROUND In this case, Inman was charged by indictment with driving while intoxicated (“DWI”). See TEX. PENAL CODE ANN. § 49.04(a) (West Supp. 2011). Because this was his third DWI offense, Inman was subject to the punishment range corresponding with third-degree felonies. See id. § 49.09(b)(2) (West Supp. 2011).

Shortly thereafter, Inman was determined to be indigent and was appointed an attorney to represent him.1 On December 10, 2010, Inman executed a financial affidavit wherein he stated that he worked part-time as a professional mover and earned a gross salary of $800 per month. However, he also averred that he does not have a spouse contributing income to the household and that he does not have any assets or other sources of income, including real estate, bank accounts, personal property, or governmental assistance.2 Apparently relying on Inman’s financial affidavit, the trial court entered an “Order for Payment of Cost of Legal Services.” In this order, the trial court concluded “that the Defendant was not presently able to retain counsel to represent him but that the Defendant has sufficient income, assets, and resources to defray the cost of legal services paid by Coryell County in his behalf as provided by the plan,” which required Inman to pay $50 per month starting on January 28, 2010 until the total sum of $1,000 was paid for legal services rendered. Nevertheless, the trial court once again determined that Inman was indigent and appointed him counsel.

After a jury trial, Inman was convicted of the charged offense and was sentenced to six years’ incarceration in the Institutional Division of the Texas Department of Criminal Justice with no fine. In the judgment, Inman was ordered to pay $509 in court costs and $2,210 in “restitution,” which the judgment characterized as attorney’s fees.3 However, at the sentencing hearing, the trial court specifically noted that Inman is required to pay $2,460 in attorney’s fees. This amount was reduced by $250 that Inman allegedly had already paid, leaving a total of $2,210 owed.4 The trial court then certified Inman’s right to appeal, and this appeal followed.

II. COURT-APPOINTED ATTORNEY’S FEES In his sole issue on appeal, Inman complains that there is insufficient evidence to support the trial court’s judgment requiring him to pay his court-appointed attorney’s fees because he was determined to be indigent in the trial court and on appeal and because the record does not indicate that his financial situation had changed. We agree.5

We note that the assessment of attorney’s fees against a criminal defendant is not characterized as restitution but rather court costs. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2011); Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010); see also Willis v. State, No. 10-09-00420-CR, 2010 Tex. App. LEXIS 8255, at *2 (Tex. App.—Waco Oct. 13, 2010, no pet.) (mem. op., not designated for publication).

Despite its statements during the punishment hearing, the trial court granted Inman’s “Motion and Affidavit for Free Appellate Record,” which was premised on a subsequent finding of indigency.

“Sufficiency of the evidence is measured by viewing all of the record evidence in the light most favorable to the verdict.” Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); see Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); see also Lucio v. State, 351 S.W.3d 878, 894-95 (Tex. Crim. App. 2011).6

For the purpose of assessing attorney’s fees, once an accused is found to be indigent, he is presumed to remain so throughout the proceedings absent proof of a material change in his circumstances. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2011); see also Mayer v. State, No. 10-10-00302-CR, 2011 Tex. App. LEXIS 1369, at *6 (Tex. App.—Waco Feb. 23, 2011, pet. ref’d) (mem. op., not designated for publication). Furthermore, the record must reflect some factual basis to support the determination that Inman was capable of paying all or some of his attorney’s fees at the time of the judgment. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West. Supp. 2011); Barrera v. State, 291 S.W.3d 515, 518 (Tex. App.—Amarillo 2009, no pet.); see also Stevenson v. State, No. 10-09-00358-CR, 2011 Tex. App. LEXIS 8302, at *3 (Tex. App.— Waco Oct. 19, 2011, no pet.) (mem. op., not designated for publication); Willis v. State, No. 10-09-00420-CR, 2010 Tex. App. LEXIS 8255, at *2 (Tex. App.—Waco Oct. 13, 2010,

However, article 26.05(g) provides that, if the trial court determines that a defendant has the financial resources that enable him to offset in whole or in part the costs of the legal services provided, the court shall order him to pay, as court costs, the amount that it finds the defendant is able to pay. TEX. CODE CRIM. PROC. ANN. art. 26.05(g); Mayer, 309 S.W.3d at 556.

B. Discussion

In December 2010, the trial court entered an order determining that Inman could pay all or some of the costs for the legal services provided and ordering him to pay $50 per month. Apparently, this order was premised on Inman’s December 10, 2010 financial affidavit wherein he stated that he made $800 in gross monthly salary. However, despite his alleged monthly salary, the trial court determined Inman to be indigent and appointed him counsel. At the sentencing hearing, the trial court concluded that Inman was “partially indigent” and ordered him to pay $2,460 in attorney’s fees as “restitution,” a characterization which, as we noted earlier, was improper.7

Based on our review of this record, we do not find sufficient evidence to support the trial court’s requirement that Inman pay his court-appointed attorney’s fee. See Mayer, 309 S.W.3d at 557; see also Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2788-89; Lucio, 351 S.W.3d at 894-95. Inman’s most recent financial affidavit executed approximately six months prior to trial indicated that he had no cash on hand, no bank accounts, no real estate, and no assets. While Inman’s affidavit does state that he earns a gross monthly salary of $800, the State did not proffer any evidence demonstrating that Inman was earning any money from his job as a professional mover or any other job or that he had any assets on hand at the time of the judgment. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g); Barrera, 291 S.W.3d at 518; see also Stevenson, 2011 Tex. App. LEXIS 8302, at *3; Willis, 2010 Tex. App. LEXIS 8255, at *2. In fact, the State did not proffer any evidence demonstrating Inman’s financial situation at the time of the judgment. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g); Barrera, 291 S.W.3d at 518; see also Stevenson, 2011 Tex. App. LEXIS 8302, at *3; Willis, 2010 Tex. App. LEXIS 8255, at *2.

While we recognize that the trial court stated in open court that Inman had paid $250 for legal services rendered and that Inman did not object to that characterization, the record does not contain any documentation showing that such payments were

III. CONCLUSION

We modify the trial court’s judgment to delete the finding that orders Inman to pay his court-appointed attorney’s fees. We affirm the judgment as modified.

AL SCOGGINS Justice

Before Chief Justice Gray,

Justice Davis, and Justice Scoggins

Affirmed as modified Opinion delivered and filed March 14, 2012 Do not publish [CR25]