Billy Durand Watkins, Appellant v. The State of Texas, Appellee (2010)

M E M O R A N D U M O P I N I O N

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.

Modified and, as Modified,

FOOTNOTES

FN1. 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..  FN1. 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.

Jan P. Patterson, Justice