NO. 07-10-00383-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL D AUGUST 17, 2012

MATTHEW GONZALES, APPELLANT

v. THE STATE OF TEXAS, APPELLEE

FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2010-426,025; HONORABLE BR ADLEY S. UNDERWOOD, JUDGE

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

MEMORANDUM OPINION Presenting four issues, appellant challe nges three provisions of the judgment reflecting his conviction of the offense of aggravated robbery and t he resulting sentence of seventy years of imprisonment, and complain s of the trial court’s failure to hold a hearing on his motion for new trial. We will affirm. Background By a January 2010 indictment, appella nt was indicted for the offense of aggravated robbery with a deadly weapon, a firearm. He ple ad not guilty and went to2 trial before a jury, which found him guilt y and, after hearing punishment evidence, assessed the sentence noted. Appellant filed a motion for new trial, ra ising a claim that the verdict was affected by an outside influence improperly brought to bear on members of the jury. The motion requested that the court hol d an evidentiary hearing. Analysis Issue One – Hearing on Motion for New Trial In appellant’s first issue, he contends t he trial court erred in failing to hold a hearing on his motion for new trial. He seeks abatement of t he appeal and remand of the case for a hearing on the motion. After appellant’s brief was filed, a supplemental reporter’s record was filed, c ontaining the record of an evi dentiary hearing on the motion for new trial, held shortly after the motion was filed. The subject of the witnesses’ testimony at the hearing was the claimed outside influence discussed in appellant’s motion. We agree with t he State that the supplemented appellate record shows appellant received the hearing he sought, and we overrule appellant’s first issue.
Issues Two, Three and Four – Restitution, Attorney’s Fees and Other Court Costs The judgment of conviction si gned by the trial court order s appellant to “pay all . . . court costs, and restitution as indicated above.” The fi rst page of the judgment lists court costs of $5500 and restituti on of $1360.49. An itemiz ation appearing later in the judgment shows the $5500 court costs consists of $5100 atto rney’s fees and $400 in3 other costs. Appellant’s three remaining issues deal with those provisions of the judgment. In appellant’s second and third issues, he challenges the provisions ordering him to pay restitution and attorney’s fees. He argues the restitution order was not orally pronounced and there was no evidence presented concerning his ability to repay the county the fees paid his court-appointed attor ney. The State concedes the orders were improper and asks us to reform the judgment by deleting each. We agree and sustain appellant’s second and third issues. Restitution is part of the sentence and must be included in the oral pronouncement. Sauceda v. State , 309 S.W.3d 767, 769 (Tex .App.—Amarillo 2010, pet. ref’d). Because it was not, we will reform the judgment to delete the order of restitution. Id. Repayment of attorney’s fees is conditi oned on a defendant’s ab ility to pay, thus making evidence in support of t he repayment order necessary. Mayer v. State, 309 S.W.3d 552, 554-56 (Tex.Crim.App. 2010). From our review of the record, we agree with the parties that no evidence supports a conclusion appellant has any ability to repay attorney’s fees. To the contrary, the re cord contains appellant’s post-trial affidavit of indigency, and the trial c ourt’s order affirming his indi gence and appointing appellate counsel. Pursuant to Mayer, 309 S.W.3d at 554-56, we wil l reform the trial court’s judgment to delete the order for payment of court-appointed attorney’s fees. See Asberry v. State , 813 S.W.2d 526, 529 (Tex.App.--Dallas 1991, pet. ref'd) (court has authority to reform judgm ent when it has information necessary to do so).4 By his fourth issue, appellant contends t he trial court’s order that he pay court costs in the amount of $400 wa s improper because the record contains no indication of how this sum was determined. As we percei ve appellant’s content ion, he essentially complains that the judgment is not supported by a bill of costs itemizing the costs totaling the $400 ordered by the court.

In Weir v State , 278 S.W.3d 364 (Tex.Crim.App. 2009), the Court of Criminal Appeals held that the statut ory assessment of court cost s against a convicted defendant is not an additional penalty for the crime committed, but a non-punitive "recoupment of the costs of judicial resour ces expended in connection with the trial of the case." Id. Thus, as the Court of Criminal Appeals held in Armstrong , “[c]ourt costs, as reflected in a certified bill of costs, need neither be or ally pronounced nor incorporated by reference in the judgment to be effective.” Armstrong v. State , 340 S.W.3d 759, 766-67 (Tex.Crim.App. 2011), citing Weir , 278 S.W.3d at 367. Appellant does not point us to authority requiring that a bill of costs reflecting costs incurred in the trial court in criminal cases be contained in the appellate record. Cf . Tex. R. App. P. 34.5( a)(11) (requiring bill of costs in clerk’s record in civil cases). By statute, records showing a stat ement of each fee or item of cost charged for a service rendered in a criminal action or proceeding ar e available for inspection by any person. Tex. Code Crim. Proc. Ann. art. 103.009 (West 2011). For these reasons, we overrule appellant’s last issue.5 Based on our disposition of appellant’s issues, we modify the trial court’s judgment to delete any requi rement that appell ant repay attorney’s fees and any requirement that appellant pay restitution. As modified, the judgment is affirmed.

James T. Campbell Justice

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