                               Fourth Court of Appeals
                                      San Antonio, Texas
                                                 OPINION
                                         No. 04-12-00866-CR

                                            Larry DIEKEN,
                                               Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                   From the 25th Judicial District Court, Guadalupe County, Texas
                                    Trial Court No. 11-1564-CR
                             Honorable Gary L. Steel, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Catherine Stone, Chief Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: April 16, 2014

AFFIRMED

           Appellant Larry Dieken pled guilty to aggravated assault with a deadly weapon, and the

jury assessed punishment at life imprisonment and a fine. The trial court imposed the sentence,

appointed appellate counsel, and ordered Dieken to pay attorney’s fees for his court-appointed trial

counsel. Dieken appealed. His court-appointed appellate counsel filed an Anders brief, and

Dieken filed a pro se brief. We agree with Appellant’s court-appointed counsel there are no

arguable issues on appeal pertaining to Dieken’s conviction, but we separately address the trial
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court’s order for Dieken to reimburse the county for his court-appointed attorney’s fees. We affirm

the trial court’s judgment.

                                           BACKGROUND

       Appellant Larry Dieken was indicted for first degree aggravated assault with a deadly

weapon causing serious bodily injury to a household member. Dieken pled guilty before the jury,

and the jury assessed punishment at confinement in the Texas Department of Criminal Justice—

Institutional Division for a term of life and a fine of $10,000.00. The trial court orally ordered the

punishment assessed by the jury and further ordered Dieken to pay all fines and court costs.

       Subsequently, the trial court signed two orders on the same day: (1) a written judgment of

conviction assessing costs including $524.50 for attorney’s fees; and (2) an order appointing

appellate counsel to represent Dieken on appeal. Appellate counsel filed an Anders brief asserting

the record contains no arguable errors to attack the conviction, see Anders v. California, 386 U.S.

738, 744 (1967), but challenging the trial court’s order requiring Dieken to pay the attorney’s fees

for his court-appointed trial counsel. Before we address the attorney’s fees question, we consider

whether Dieken has any arguable issues on the merits of his conviction.

                              NO ARGUABLE ISSUES ON CONVICTION

       Dieken’s court-appointed appellate attorney filed a brief containing a professional

evaluation of the record in accordance with Anders procedures; counsel also filed a motion to

withdraw. See id. In counsel’s brief, counsel raises no arguable appellate issues on the conviction

or sentence, and necessarily concludes this appeal is wholly frivolous. Counsel’s brief meets the

Anders requirements. See id.; High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [Panel Op.]

1978); Gainous v. State, 436 S.W.2d 137, 138 (Tex. Crim. App. 1969). As required, counsel

provided Dieken with a copy of the brief and counsel’s motion to withdraw, and informed Dieken

of his right to review the record and file a pro se brief. See Nichols v. State, 954 S.W.2d 83, 85–
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86 (Tex. App.—San Antonio 1997, no pet.); see also Bruns v. State, 924 S.W.2d 176, 177 n.1

(Tex. App.—San Antonio 1996, no pet.).

        In his pro se brief, Dieken complains about the jury selection process, ineffective assistance

of counsel, alleged defects in the clerk’s and reporter’s records, and other issues.

        After reviewing the record, counsel’s brief, and Dieken’s pro se brief, we conclude there

is no reversible error and, except for the question of attorney’s fees, the appeal is wholly frivolous.

See Anders, 386 U.S. at 744; Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005)

(citing Anders and allowing appellate courts to not address every issue raised if, after reviewing

the record, the court finds no reversible error). Therefore, we turn to the question of attorney’s

fees.

                                          ATTORNEY’S FEES

        Dieken challenges the assessment of $524.50 in attorney’s fees as part of the costs imposed

in the judgment. He asserts the trial court twice found him indigent for purposes of trial, he was

presumed to remain indigent, the trial court again found him indigent for purposes of this appeal,

and there is no evidence to show he was able to pay the court-appointed trial attorney’s fees.

A.      Applicable Law

        “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. 2014);

accord Wiley v. State, 410 S.W.3d 313, 317 (Tex. Crim. App. 2013); Mayer v. State, 309 S.W.3d

552, 557 (Tex. Crim. App. 2010); Fulmer v. State, 401 S.W.3d 305, 318 (Tex. App.—San Antonio,

pet. ref’d), cert. denied, 134 S. Ct. 436 (2013). On the other hand,

        [i]f 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, . . . the court shall


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       order the defendant 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); accord Mayer, 309 S.W.3d at 556. “[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.

       If the trial court imposes court-appointed attorney’s fees as part of court costs, an appellant

may challenge the imposition for the first time on appeal by raising a sufficiency of the evidence

issue. Id.; Fulmer, 401 S.W.3d at 318. We review the record to determine whether the trial court

could have reasonably determined the appellant’s financial circumstances experienced a material

change and the appellant was able to pay the court-appointed attorney’s fees. See TEX. CODE

CRIM. PROC. ANN. art. 26.04(p); McFatridge v. State, 309 S.W.3d 1, 6 (Tex. Crim. App. 2010).

We view the evidence in the light most favorable to the judgment. Mayer, 309 S.W.3d at 557.

B.     Analysis

       For the first time on appeal, Dieken contends there is insufficient evidence of his ability to

pay attorney’s fees. See id. at 556; Fulmer, 401 S.W.3d at 318. Before we review the evidence,

we first consider the definition of indigence.

       1.      Definition of Indigence

       A criminal defendant who asserts he is “without means to employ counsel of my own

choosing,” may petition the court to appoint counsel to represent him at the county’s expense.

TEX. CODE CRIM. PROC. ANN. art. 26.04(o) (providing oath of indigence language); id. art. 26.05(f)

(requiring counties to pay indigents’ costs and attorney’s fees). On the defendant’s request and

affidavit, the court determines whether the defendant has the means to hire counsel—or in

abbreviated form, whether the defendant is “indigent.” Id. art. 26.04(m). Courts’ determinations

that a defendant is indigent or not indigent may suggest that indigence is a binary condition. See,


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e.g., Wiley, 410 S.W.3d at 317 (referring to defendants who were “declared indigent” or “found

indigent”); Mayer, 309 S.W.3d at 557 (same). Several statutory provisions also use seemingly

“either-or” language. See, e.g., TEX. CODE CRIM. PROC. ANN. art. 26.04(l), (m), (o) (referring to

“whether a defendant is indigent”); id. art. 26.04(p) (referring to “a determination of indigency or

nonindigency”).

        But the statute controlling reimbursement of court-appointed attorney’s fees expressly

contemplates a middle ground—a defendant who is able to pay for a portion of his legal services: 1

        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, including any
        expenses and costs, the court shall order the defendant to pay during the pendency
        of the charges or, if convicted, as court costs the amount that it finds the defendant
        is able to pay.

TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (emphasis added); see Wiley, 410 S.W.3d at 317 (citing

the statutory provision). Article 26.05(g) authorizes a court to determine that a defendant is able

to pay a portion of the costs of his legal services but is unable to pay the balance. TEX. CODE

CRIM. PROC. ANN. art. 26.05(g). The statute clarifies the definition to show indigence is not merely

a binary condition—either too poor to afford any counsel at any time (indigent), or rich enough to

retain counsel at all stages of the case (not indigent). Id. Instead, indigence—a measure of whether

a defendant is able to pay for legal services—is a spectrum that includes financial circumstances

where the defendant is able to pay for part, but not all, of the legal services provided. See TEX.

CODE CRIM. PROC. ANN. art. 26.05(g); cf. McFatridge, 309 S.W.3d at 6 (distinguishing indigence

for purposes of a free record and indigence for appointing counsel: “A defendant can be found

indigent for one purpose without being found indigent for the other.”).




1
 “[C]osts of legal services provided” include attorney’s fees for court-appointed counsel. TEX. CODE CRIM. PROC.
ANN. art. 26.05(a), (e), (g).

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        2.      Material Change, Ability to Pay

        The defendant’s ability to pay may also change over time, and the court may reconsider

any earlier indigence determination. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Whitehead

v. State, 130 S.W.3d 866, 876 (Tex. Crim. App. 2004) (“The question of indigence is subject to

reconsideration if the defendant’s financial status changes and, at least in the case of appointed

counsel, the defendant can be required to reimburse the cost of legal services if it is later

determined that he is able to do so.” (footnote omitted)); cf. Sturdivant v. State, No. 01-12-00089-

CR, 2013 WL 1972179, at *21 (Tex. App.—Houston [1st Dist.] May 14, 2013), judgment vacated

on other grounds, 411 S.W.3d 487 (Tex. Crim. App. 2013) (finding a material change in

appellant’s financial circumstances and ordering her to pay for the legal services provided in full).

For example, if a defendant is indicted, is found able to pay for retained counsel (“not indigent”),

but suffers a serious financial setback, the defendant may move the court to reconsider its earlier

determination. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Whitehead, 130 S.W.3d at 876.

On the other hand, if a defendant is initially found “indigent,” but receives a financial windfall

before the judgment is signed, the statute expressly contemplates that the State may move for

reconsideration. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Whitehead, 130 S.W.3d at 876;

cf. Sturdivant, 2013 WL 1972179, at *21. If the trial court grants the motion and determines the

defendant is financially able to reimburse the county for all or part of the legal services it provided,

the trial court is obligated to order the defendant to do so. TEX. CODE CRIM. PROC. ANN. art.

26.05(g); see Wiley, 410 S.W.3d at 317; Whitehead, 130 S.W.3d at 876. We turn now to the

evidence.

        3.      Relevant Evidence

        On May 31, 2011, the trial court determined that Dieken was “too poor to employ counsel

for his defense in this cause” and appointed counsel to represent him. From that date, Dieken was
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“presumed to remain indigent . . . unless a material change in [Dieken’s] financial circumstances

occur[red].” See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); Wiley, 410 S.W.3d at 317; Mayer,

309 S.W.3d at 557. In a bond reduction hearing on September 27, 2011, Dieken testified that when

he was working full-time, his take-home pay was about $9,300 per month, but he has not worked

since his arrest because he has been continuously incarcerated. On November 9, 2011, the trial

court again found Dieken was “too poor to employ counsel,” granted the first appointed counsel’s

motion to withdraw, and appointed a replacement attorney.

       During an April 18, 2012 hearing on Dieken’s motion to reduce bail, Dieken testified about

his financial circumstances. He testified he had a 401(k) retirement account valued at about $2,000

that he was trying to liquidate, and he might receive funds from an insurance claim. He asked the

court to dismiss his second court-appointed attorney because he was going to “get my own lawyer.”

       On May 8, 2012, George Carroll filed a notice of appearance; the notice stated “Larry

Dieken[] retained George Carroll.”      In the May 22, 2012 hearing on Dieken’s motion for

continuance, retained counsel advised the court that Dieken hired him, and a third party would pay

on Dieken’s behalf for a forensic psychiatrist to examine Dieken. The trial court granted retained

counsel’s motion to substitute, but did not make an oral or written finding that (1) Dieken’s

financial circumstances experienced a material change or (2) Dieken had the ability to pay his

court-appointed trial counsel’s fees. After the trial concluded, the court’s written judgment

imposed court costs including $524.50 in attorney’s fees for Dieken’s court-appointed trial

counsel.

       4.      Sufficient Evidence

       To impose the attorney’s fees on Dieken, the trial court had to find, either expressly or

implicitly, that a material change occurred and Dieken had the ability to pay $524.50 for his court-

appointed attorney’s fees. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g); Wiley, 410 S.W.3d at
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317; Mayer, 309 S.W.3d at 556. It did not make an express written or oral finding, 2 and we must

determine whether the evidence reasonably supports such an implicit finding. See Mayer, 309

S.W.3d at 557 (sufficiency review); cf. McFatridge, 309 S.W.3d at 5–6, 9 (reiterating the appellate

review process for an indigence determination and requiring “the trial court’s determinations [to

be] reasonably supported by the evidence”).

        The trial court heard testimony and received documents that reasonably supported its

determination. See McFatridge, 309 S.W.3d at 9. Dieken testified he had a 401(k) account he

was trying to liquidate, and he might receive funds from an insurance claim. Dieken’s retained

counsel presented a motion to substitute which expressly stated that Dieken retained counsel, and

counsel stated on the record in open court that Dieken hired him. Retained counsel also advised

the court that a third party had agreed to pay—on Dieken’s behalf—the expert psychiatrist’s fee.

        We conclude the trial court’s implicit determinations that (1) a material change occurred

sometime after it found Dieken indigent and before Dieken retained counsel, and (2) Dieken was

able to pay the $524.50 in court-appointed attorney’s fees are reasonably supported by the

evidence. See Mayer, 309 S.W.3d at 556 (required findings); McFatridge, 309 S.W.3d at 9

(reasonable support in evidence). Further, the trial court’s order appointing appellate counsel,

signed the same day as the judgment, is not inconsistent with the ordered attorney’s fees; the trial

court could have found Dieken was able to pay $524.50 in trial attorney’s fees but unable to pay

attorney’s fees to appeal. See McFatridge, 309 S.W.3d at 6.

        Viewing the evidence in the light most favorable to the judgment, see Mayer, 309 S.W.3d

at 557, we conclude the trial court did not err in ordering Dieken to pay $524.50 in attorney’s fees.

We overrule Dieken’s complaint about the imposition of court-appointed attorney’s fees.


2
 The statute does not require an express finding, but a clear, written finding or an unequivocal oral pronouncement
on the record in open court is preferred. Cf. TEX. CODE CRIM. PROC. ANN. art. 26.05(g).

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                                                    CONCLUSION

         Having reviewed the record and the briefs, we conclude there are no arguable issues on

appeal pertaining to Dieken’s conviction. To support its judgment, the trial court necessarily—

albeit implicitly—found Dieken’s financial circumstances experienced a material change and he

was able to pay $524.50 for court-appointed attorney’s fees. Viewing the evidence in the light

most favorable to the judgment, we conclude the evidence reasonably supports the trial court’s

order imposing $524.50 in attorney’s fees. See Mayer, 309 S.W.3d at 557. We affirm the trial

court’s judgment and grant appellate counsel’s motion to withdraw. 3 See Nichols, 954 S.W.2d at

85–86; Bruns, 924 S.W.2d at 177 n.1.


                                                            Patricia O. Alvarez, Justice

PUBLISH




3
  No substitute counsel will be appointed; if Appellant desires to take further action in this case, he must either retain
counsel or act through self-representation. If Appellant seeks additional review by this court, Appellant may file a
motion for rehearing or motion for en banc reconsideration. See TEX. R. APP. P. 49.1, 49.7. If Appellant seeks further
review by the Texas Court of Criminal Appeals, he must file a petition for discretionary review. Any petition for
discretionary review must be filed within thirty days from (1) the date of this opinion or (2) the date the last timely
motion for rehearing or en banc reconsideration is overruled by this court. See TEX. R. APP. P. 68.2. Any petition for
discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals. See id. R. 68.3(a). The
mailing address for the court is as follows:
         Court of Criminal Appeals
         P.O. Box 12308
         Austin, Texas 78711-2308
Any petition for discretionary review must comply with the requirements of Rule 68.4 of the Texas Rules of Appellate
Procedure. See id. R. 68.4.


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