Billy Durand Watkins v. State ( 2010 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-10-00343-CR
Billy Durand Watkins, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 63931, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING
MEMORANDUM OPINION
In June 2009, appellant Billy Durand Watkins was placed on deferred adjudication
community supervision after he pleaded guilty to aggravated assault with serious bodily injury. See
Tex. Penal Code Ann. § 22.02 (West Supp. 2010). The State later filed a motion to adjudicate,
which was granted following a hearing. The trial court adjudged appellant guilty and imposed a
sentence of seventeen years’ imprisonment.
Appellant’s sole contention on appeal is that the evidence does not support the trial
court’s order that he repay $2040 in appointed attorney’s fees upon release. See Mayer v. State,
309 S.W.3d 552, 556 (Tex. Crim. App. 2010) (holding that order to reimburse cost of appointed
attorney must be supported by evidence of defendant’s ability to pay).1 The State concedes error and
agrees that the judgment of conviction should be modified to delete the order. See id. at 557.
We agree that the evidence is legally insufficient to prove that appellant is able to pay
the ordered attorney’s fees. The judgment is modified to delete the order that appellant pay $2040 in
attorney’s fees upon release. As modified, the judgment of conviction is affirmed.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Henson
Modified and, as Modified, Affirmed
Filed: November 16, 2010
Do Not Publish
1
Appellant asserts that the evidence is factually insufficient. Factual sufficiency review is no
longer employed in criminal appeals. Brooks v. State, No. PD-0210-09, 2010 Tex. Crim. App.
LEXIS 1240, at *57 (Tex. Crim. App. Oct. 6, 2010). Given his reliance on Mayer, it is clear that
appellant is actually challenging the legal sufficiency of the evidence.
2