In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-19-00044-CR



       TIMOTHY DARWIN EILAND, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 188th District Court
                Gregg County, Texas
              Trial Court No. 47202-A




      Before Morriss, C.J., Burgess and Stevens, JJ.
       Memorandum Opinion by Justice Stevens
                                MEMORANDUM OPINION
       Timothy Darwin Eiland entered an open plea of guilty to the offense of failing to register

as a sex offender. See TEX. CODE CRIM. PROC. ANN. art. 62.102. After a bench trial on punishment,

Eiland was sentenced to fifteen years’ imprisonment and was ordered to pay $1,360.00 in attorney

fees for court-appointed counsel.

       On appeal, Eiland argues that (1) the trial court erred in assessing attorney fees against him

because he is indigent and (2) the clerical errors in the trial court’s judgment must be modified.

The State concedes these points of error. We modify the trial court’s judgment by deleting the

assessment of attorney fees and correcting the clerical errors. As modified, we affirm the trial

court’s judgment.

I.     We Delete the Assessment of Attorney Fees Because Eiland Is Indigent

       Because the trial court found Eiland indigent, he was presumed to remain indigent absent

proof of a material change in his circumstances. See TEX. CODE CRIM. PROC. ANN. arts. 26.04(p),

26.05(g) (Supp.); Walker v. State, 557 S.W.3d 678, 689 (Tex. App.—Texarkana 2018, pet. ref’d).

Even so, the trial court, which also found Eiland indigent after trial, assessed $1,360.00 in attorney

fees against him.

       Under Article 26.05(g) of the Texas Code of Criminal Procedure, a trial court has the

authority to order the reimbursement of court-appointed attorney fees only if “the judge determines

that a defendant has financial resources that enable the defendant to offset in part or in whole the

costs of the legal services provided . . . including any expenses and costs.” TEX. CODE CRIM. PROC.

ANN. art. 26.05(g). “[T]he defendant’s financial resources and ability to pay are explicit critical


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elements in the trial court’s determination of the propriety of ordering reimbursement of costs and

fees” of legal services provided. Armstrong v. State, 340 S.W.3d 759, 765–66 (Tex. Crim. App.

2011) (quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)). Since there is no

finding of the ability of Eiland to pay them, the assessment of the attorney fees was erroneous. See

Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013); see also Mayer v. State, 309 S.W.3d
552 (Tex. Crim. App. 2010); Martin v. State, 405 S.W.3d 944, 946–47 (Tex. App.—Texarkana

2013, no pet.).

       “Appellate courts ‘have the authority to reform judgments and affirm as modified in cases

where there is non reversible error.’” Walker, 557 S.W.3d at 690 (quoting Ferguson v. State, 435
S.W.3d 291, 294 (Tex. App.—Waco 2014, pet. struck) (comprehensively discussing appellate

cases that have modified judgments)). We sustain Eiland’s first point of error and modify the trial

court’s judgment by deleting the assessment of $1,360.00 for attorney fees.

II.    We Modify the Judgment to Correct Clerical Errors

       In his second point of error, Eliand argues that the trial court’s judgment contains two errors

requiring modification. First, Eiland notes that he entered an open plea, but the judgment states

that the terms of the plea bargain were “15 YEARS TDCJ.” Second, Eiland’s failure to register

as a sex offender was an offense under Article 62.102(b)(3) of the Texas Code of Criminal

Procedure, but the judgment mistakenly reflects that the statute of offense is contained in the Texas

Penal Code.

       The State agrees, and the record reflects, that modification is required. We sustain Eiland’s

second point of error. As a result, we also modify the trial court’s judgment by (1) deleting the

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reference to “15 YEARS TDCJ” under the heading “Terms of Plea Bargain” and replacing it with

the notation “Not Applicable,” and (2) correcting the statute of offense section to show Eiland

violated Article 62.102(b)(3) of the Texas Code of Criminal Procedure.

III.   Conclusion

       We modify the trial court’s judgment by (1) deleting the assessment of $1,360.00 for

attorney fees, (2) deleting the reference to “15 YEARS TDCJ” under the heading “Terms of Plea

Bargain” and replacing it with the notation “Not Applicable,” and (3) correcting the statute of

offense section to show Eiland violated Article 62.102(b)(3) of the Texas Code of Criminal

Procedure. We affirm the trial court’s judgment, as modified.



                                            Scott E. Stevens
                                            Justice

Date Submitted:       September 5, 2019
Date Decided:         September 10, 2019

Do Not Publish




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