Randy Lee Carr v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-25-00113-CR
___________________________

RANDY LEE CARR, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 43rd District Court
Parker County, Texas
Trial Court No. CR23-0683

Before Kerr, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION

I. Introduction

After police stopped Appellant Randy Lee Carr for an expired registration

sticker, Carr ate—and then admitted to eating—three marijuana blunts that he had

transferred to his mouth using “sleight of hand” after an officer saw them in his vehicle.

After deliberating for 17 minutes, a jury found him guilty of tampering with physical

evidence, a third-degree felony, see Tex. Penal Code Ann. § 37.09(a), (c), and then

assessed his sentence at 99 years’ incarceration after finding “true” the enhancement

paragraphs alleging his two prior and sequential felony convictions, see id. § 12.42(d).

The trial court sentenced him accordingly.

Carr does not challenge the verdict or sentence. 1 Instead, in two points, he

complains that the trial court’s appointed-counsel orders erroneously require him to

reimburse the cost of his appointed counsel despite his indigence and that any “time

payment fee” assessed as a court cost is premature during his appeal’s pendency. Carr

asks this court to modify the trial court’s appointed-counsel orders to delete the finding

that he has the ability to contribute to the cost of his appointed counsel’s legal services

and to correct the trial court’s withdrawal order and the bill of costs to delete any

premature time-payment fee.

1
Because Carr does not challenge the sufficiency of the evidence to support his
conviction, we will not discuss the underlying facts. See Tex. R. App. P. 47.1.

2
The State concedes that the appointed-counsel orders should not have required

reimbursement but asserts that the judgment and bill of costs need not be modified

because they do not order reimbursement of the appointed-counsel services and

because the trial court did not assess a time-payment fee. The State asks that this court

“sustain [Carr’s] first issue as to the order determining appointment of trial counsel

only” and then to affirm the judgment as modified. Because we have previously

determined in similar cases that the fact that the trial court has not yet assessed a specific

fee does not make an issue unripe for our consideration, 2 we will sustain both of Carr’s

points, modify the trial court’s orders,3 and affirm the trial court’s judgment as modified.

II. Background

After Carr’s retained counsel withdrew for lack of payment, Carr filed an affidavit

of indigency and an application for a court-appointed attorney. In his application, Carr

2
See Furstonberg v. State, Nos. 02-21-00078-CR, 02-21-00079-CR, 02-21-00080-
CR, 2022 WL 5240473, at *4 (Tex. App.—Fort Worth Oct. 6, 2022, pet. ref’d) (mem.
op., not designated for publication); Guevara v. State, No. 02-21-00069-CR,
2022 WL 1042919, at *2 n.1 (Tex. App.—Fort Worth Apr. 7, 2022, no pet.) (mem. op.,
not designated for publication); cf. Tex. Code Crim. Proc. Ann. art. 103.001(b) (stating
that a cost is not payable until a written bill containing the items of cost is produced,
signed by the officer who charged the cost or who is entitled to receive payment for it,
and provided to the person charged with the cost).
3
See Scott v. State, No. 02-19-00283-CR, 2019 WL 6767813, at *2 (Tex. App.—
Fort Worth Dec. 12, 2019, no pet.) (mem. op., not designated for publication) (“When
insufficient evidence supports a trial court’s ordering of reimbursement of attorney’s
fees, the appropriate appellate remedy is to modify the trial court’s order to delete the
reimbursement of attorney’s fees.”)

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stated that he had been unemployed for two months after having been laid off, that he

had no assets or spousal income, that he owned no residence or real property, that his

checking account was overdrawn by $40, and that his only personal property of any

value was his “tools[,] wrenches,” the value of which he estimated at $20. Carr did not

list any public assistance, any dependents, or any monthly expenses.4

Counsel was appointed for Carr, but on the appointment form,

“APPOINTMENT WITH REIMBURSEMENT” was check-marked. This portion of

the form stated that the appointment was not because Carr was indigent but because

“it is in the interests of justice,” that Carr “presently has financial resources and/or an

ability to pay all or part of the cost of legal services and related expenses to be provided,”

and that he “shall contribute to the cost of the legal services and related expenses.” The

court coordinator—not the trial judge—signed the appointment form. See Tex. Code

Crim. Proc. Ann. art. 26.04(b)(1) (stating that a judge’s designee is authorized to appoint

counsel for an indigent defendant); cf. Mayberry v. State, No. 02-22-00278-CR,

2023 WL 6300723, at *5 (Tex. App.—Fort Worth Sept. 28, 2023, pet. ref’d) (mem. op.,

not designated for publication) (noting that because the court coordinator signed the

order appointing counsel, there was no determination by the trial court—as required by

Carr’s mother’s testimony during the trial’s punishment phase reflects that Carr
4

had been living in a recreational vehicle next door to her and his stepfather for the last
four years.

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Article 26.05(g)—that the defendant had the financial resources to pay all or part of the

cost of the legal services).

In the April 15, 2025 judgment, the trial judge wrote in $290 for court costs and

$20 for reimbursement fees and ordered Carr to “proceed without unnecessary delay

to the District Clerk’s office . . . to pay or arrange to pay any . . . court costs,

reimbursement fees, and restitution due” upon his release from confinement.

The bill of costs, also dated April 15, 2025, shows that Carr owed $290 for

consolidated state and local court costs, plus $10 for a bond fee, $5 for a commitment-

or-release fee, and $5 for a warrantless-arrest fee, for a total of $310.5 The bill of costs

does not set out a dollar amount for a time-payment fee, but it ambiguously states both

that the time-payment fee is not applicable and also that it will be removed if the bill is

paid within 31 days of the judgment: “Time Payment Fee is not applicable and shall be

removed if the fine, court costs and reimbursement fees are paid in full prior to the 31st day

5
Carr does not challenge these fees. See Tex. Loc. Gov’t Code Ann.
§ 133.102(a)(1) (setting out $185 as state consolidated fees on felony conviction),
§ 134.101(a) (setting out $105 as local consolidated fees on felony conviction); see also
Tex. Code Crim. Proc. Ann. art. 102.011(a)(1) ($5 warrantless-arrest fee), (a)(5)
($10 bond fee), (a)(6) ($5 commitment-or-release fee). Further, these are mandatory
costs, which are, as the Court of Criminal Appeals has explained, costs that are “other
than attorney’s fees” and that are “predetermined, legislatively mandated obligation[s]
imposed upon conviction.” Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014).
In contrast, attorney’s fees are discretionary. See id. (citing Code of Criminal Procedure
Article 26.05(g), which requires a court “to determine whether a criminal defendant ‘has
financial resources that enable him to offset in part or in whole the costs of the legal
services provided’”).

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after the date of Judgment.” [Emphasis added.] See Tex. Code Crim. Proc. Ann.

art. 102.030(a)(1)–(2) (stating that a person convicted of an offense “shall pay a

reimbursement fee of $15” if he has been convicted of a felony and “pays any part of a

fine, court costs, or restitution, or another reimbursement fee, on or after the 31st day

after the date on which a judgment is entered assessing the fine, court costs, restitution,

or other reimbursement fee”).

The trial court’s April 15, 2025 order to withdraw funds from Carr’s inmate trust

account states that $310 has been assessed against Carr for “court costs, fees and/or

fines and/or restitution,” and that the trial court “finds that the offender is unable to

pay the court costs, fees and/or fines on this date and that, pursuant to Texas

Government Code §501.014, the funds should be withdrawn from the offender’s

Inmate Trust Account.” [Emphasis added.]

At the trial’s conclusion, the trial judge asked Carr if he was “going to hire

additional counsel” or “ask for court-appointed counsel,” and Carr replied, “Court-

appointed counsel.” Carr’s trial counsel acknowledged that he had been appointed, and

the trial judge stated that he would appoint appellate counsel for Carr but did not make

an indigency determination on the record. The next day, appellate counsel was

appointed “without reimbursement,” but on the appointment form—again—the

finding was that the appointment was in the interests of justice and not because Carr

was indigent. However, under this particular election, the form also stated, “Defendant

presently has no financial resources to pay or contribute to the cost of legal services and

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related expenses.” [Emphasis added.] As before, the court coordinator—not the trial

judge—signed the appointment form. See id. art. 26.04(b)(1); cf. Mayberry,

2023 WL 6300723, at *5.

III. Discussion

Carr asserts that because he was indigent, the trial court erred by determining—

without a basis in the record—that he had the ability to contribute to the costs of his

court-appointed counsel’s legal services in the trial and appellate courts. He further

argues that any time-payment fee is premature during his appeal’s pendency.

The 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.” Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim. App. 2013) (quoting

Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)). Code of Criminal

Procedure Article 26.04(m) lists the considerations for a trial court or its designee in

determining whether a defendant is indigent: “the defendant’s income, source of

income, assets, property owned, outstanding obligations, necessary expenses, the

number and ages of dependents, and spousal income,” if any. Tex. Code Crim. Proc.

Ann. art. 26.04(m).

A defendant who requests a determination of indigency and appointment of

counsel must take one of three actions, only one of which is pertinent here: “complete

under oath a questionnaire concerning his financial resources.” Id. art. 26.04(n)(1).

Under Article 26.05(g), if the trial court determines that a defendant has financial

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resources that enable him to offset in part or in whole the costs of the legal services

provided to him in accordance with Article 1.051(c) 6 or (d),7 including any expenses

and costs, the trial court “shall order the defendant to pay during the pendency of the

charges or, if convicted, as a reimbursement fee the amount that the judge finds the

defendant is able to pay.” Id. art. 26.05(g). But in making such a determination, “the

judge may only consider the information a court or courts’ designee is authorized to

consider in making an indigency determination under Article 26.04(m).” Id. art. 26.05(g-

1)(4). Once a defendant is determined to be indigent, without some indication in the

record that the defendant’s financial status has in fact changed, the evidence will not

support an imposition of attorney’s fees. Wiley v. State, 410 S.W.3d 313, 317 (Tex. Crim.

App. 2013); see Tex. Code Crim. Proc. Ann. art. 26.04(p) (“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.”).

6
Under Article 1.051(c), an indigent defendant “is entitled to have an attorney
appointed to represent him in any adversary judicial proceeding that may result in
punishment by confinement and in any other criminal proceeding if the court concludes
that the interests of justice require representation.” Tex. Code Crim. Proc. Ann. art.
1.051(c).
7
Under Article 1.051(d), an eligible indigent defendant is entitled to have
appointed counsel to represent him in, among other things, an appeal to this court. See
Tex. Code Crim. Proc. Ann. art. 1.051(d)(1).

8
The indigency evidence in the record is Carr’s affidavit in which he stated that

he had been laid off and was unemployed, that he had no spousal income, that he owned

no residence or real property, that his checking account was overdrawn, that he had no

dependents, and that his only personal property of any value was worth around $20. See

Tex. Code Crim. Proc. Ann. art. 26.04(n)(1). That is, he had no income or source of

income due to his unemployment, no spouse or dependents, and no property of any

significant value. See id. art. 26.04(m) (listing indigency considerations). Nothing in his

affidavit showed that he had—or had ever had during the case’s proceedings—the

ability to pay attorney’s fees. Accordingly, the trial court abused its discretion by

determining (or adopting its designee’s determination), without a basis in the record,

that Carr had the ability to contribute to the costs of his court-appointed counsel’s legal

services in the trial and appellate courts. See id. art. 26.05(g-1)(4). We sustain Carr’s first

point and modify the appointed-counsel orders to reflect “appointment without

reimbursement” because Carr is indigent.

Further, to the extent that the clerk’s office may have imposed a time-payment

fee on Carr as implied in the April 15, 2025 bill of costs—that is, that a time-payment

fee would be imposed if his court costs and reimbursement fees were not “paid in full

prior to the 31st day after the date of Judgment”—that imposition during the pendency

of Carr’s appeal is also erroneous. See Dulin v. State, 620 S.W.3d 129, 129 (Tex. Crim.

App. 2021). We sustain Carr’s second point and, to the extent that the time-payment

fee has been imposed, we strike it as prematurely assessed. See id. (“We conclude that

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the time payment fee must indeed be struck for being prematurely assessed because a

defendant’s appeal suspends the duty to pay court costs and therefore suspends the

running of the clock for the purposes of the time[-]payment fee.”). The time-payment

fee is struck without prejudice to its later assessment if, more than 30 days after the

issuance of the appellate mandate, Carr has failed to completely pay his court costs or

restitution. Id. at 133.

IV. Conclusion

Having sustained both of Carr’s points, we modify the trial court’s orders

appointing counsel and the bill of costs to reflect Carr’s indigence and to correct any

premature time-payment-fee assessment and affirm the trial court’s judgment as

modified. See Guevara, 2022 WL 1042919, at *4 (reaching same result).

/s/ Elizabeth Kerr
Elizabeth Kerr
Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: November 6, 2025

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