Kyle Dean Kuykendall v. State, 592 S.W.3d 967

A single Kerr County indictment (Cause No. B15-684) charged Kuykendall with two counts of felony failure to appear for a single November 30, 2015 hearing (motions to adjudicate on earlier B12-180 deferred-adjudication case).
Each count tracked § 38.10 language and included the applicable surety bond image; both counts concerned the same court setting and same date.
Kuykendall pleaded guilty to both counts on May 30, 2018; the court ordered a PSI and, after an August 1, 2018 hearing, sentenced him to ten years’ confinement on each count, to run concurrently.
Kuykendall did not object at trial on double jeopardy grounds; the trial court had earlier found him indigent and appointed counsel, but the final judgment assessed $225 in court-appointed attorney’s fees.
On appeal the Court of Appeals considered (1) whether convicting on two counts based on a single missed appearance violates double jeopardy and (2) whether the record supported assessment of attorney’s fees given the presumption of continued indigence.

Issue	Kuykendall's Argument	State's Argument	Held
Whether two convictions for failure to appear based on one missed court setting violate double jeopardy	The gravamen is the single failure to appear; one missed appearance = one offense	The gravamen is violating the terms of release tied to each separate bond/indictment count; separate bonds support separate offenses	Court vacated Count Two: double jeopardy violation is apparent on the record because a single missed setting yields only one allowable unit of prosecution in these facts
Whether the record supports assessing court-appointed attorney’s fees against an indigent defendant	No — Kuykendall was declared indigent and there is no record of a material change in finances	State did not dispute lack of record evidence of changed finances	Court modified judgment to delete $225 in attorney’s fees: absent evidence of changed financial circumstances, fees may not be imposed

Gonzalez v. State, 8 S.W.3d 640 (Tex. Crim. App. 2000) (double-jeopardy claim may be raised on appeal when clearly apparent on record)
Ex parte Denton, 399 S.W.3d 540 (Tex. Crim. App. 2013) (no legitimate state interest in preserving conviction that violates double jeopardy; remedy is vacatur of one conviction)
Ex parte Marascio, 471 S.W.3d 832 (Tex. Crim. App. 2015) (per curiam with concurrences/dissents addressing unit of prosecution for bail-jumping)
Harris v. State, 359 S.W.3d 625 (Tex. Crim. App. 2011) (gravamen/unit-of-prosecution analysis for offenses)
Ex parte Cavazos, 203 S.W.3d 333 (Tex. Crim. App. 2006) (use gravamen to discern unit of prosecution)
Ervin v. State, 991 S.W.2d 804 (Tex. Crim. App. 1999) (convicted of more offenses than legislature intended violates double jeopardy)
Cates v. State, 402 S.W.3d 250 (Tex. Crim. App. 2013) (trial court may order repayment of appointed counsel only if defendant shown able to pay)
Wiley v. State, 410 S.W.3d 313 (Tex. Crim. App. 2013) (presumption of continued indigence controls unless record shows material change)
Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010) (defendant’s financial resources are critical to ordering reimbursement of counsel)
Oregon v. Kennedy, 456 U.S. 667 (U.S. 1982) (principles on state interest in finality of convictions cited)