NO. 07-10-00068-CR 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AT AMARILLO 

PANEL A 

SEPTEMBER 2, 2010 

DETRICK MONTGOMERY, APPELLANT 

v. 

THE STATE OF TEXAS, APPELLEE 

 FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY; 

NO. 2009-423,841; HONORABLE BRADLEY S. UNDERWOOD, JUDGE 

Before CAMPBELL and HANCOCK and PIRTLE, JJ. 

MEMORANDUM OPINION 

Appellant, Detrick Montgomery, appeals the entry of a judgment of conviction for 

the offense of possession of a controlled substance (cocaine) with the intent to deliver in 

an amount of four grams or more but less than 200 grams. The trial court sentenced 

appellant to thirty years incarceration in the Institutional Division of the Texas 

Department of Criminal Justice. Appellant’s issues do not challenge the conviction or 

the sentence of confinement, but rather challenge the trial court’s orders that appellant 

pay appointed attorney’s fees and restitution. We will modify the judgment and affirm. 
2 

Background 

 As appellant does not challenge his conviction nor his sentence of incarceration, 

we will limit our review of the facts and procedural history of this case to those that are 

relevant to the issues raised by appellant. 

 Immediately after the trial court pronounced appellant’s sentence of incarceration 

in open court, it inquired about appellant’s desire to appeal and his ability to pay for an 

attorney on appeal. Appellant stated that he could not afford to hire an attorney, and 

the trial court stated that it would appoint an attorney to appellant for appeal. No record 

evidence establishes that appellant had the ability to pay attorney’s fees at the 

conclusion of trial. However, the judgment entered by the trial court ordered appellant 

to pay $1,222.50 as “prior attorney fee.” 

 In addition, the trial court failed to address the issue of restitution during the 

pronouncement of appellant’s sentence and no subsequent hearings were held on this 

matter. However, the judgment ordered appellant to pay restitution in an amount of 

$140. 

 By two issues, appellant challenges the judgment. By his first issue, appellant 

contends that there was no evidence that appellant had the financial resources or ability 

to pay for services rendered by court-appointed counsel and, therefore, the trial court’s 

order that appellant pay $1,222.50 for “prior attorney fee” was in error and should be 

struck from the judgment. By his second issue, appellant contends that, in its oral 

pronouncement of sentence, the trial court failed to include restitution as a part of the 
3 

sentencing and, therefore, the subsequent inclusion in the judgment of an order that 

appellant pay $140 in restitution is invalid and must be struck from the judgment. 

Repayment of Attorney’s Fees 

 On the issue of repayment of attorney’s fees,1 article 26.05(g) of the Texas Code 

of Criminal Procedure provides, “[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 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. CRIM. PROC. CODE ANN. art. 26.05(g) (Vernon Supp. 2009). The key factors 

in determining the propriety of ordering reimbursement of costs and fees are the 

defendant’s financial resources and ability to pay. Mayer v. State, 309 S.W.3d 552, 556 

(Tex.Crim.App. 2010). “Without evidence to demonstrate appellant’s financial 

resources to offset the costs of the legal services, the trial court erred in ordering 

 1

 The record is confusing as to precisely how this issue arose. First, there is no 

order in the clerk’s record appointing counsel to appellant for trial. Further, during the 

discussion of appellant’s right to appeal at the close of punishment, appellant’s trial 

counsel stated that appellant’s “family doesn’t have the funds to continue paying for an 

attorney in this case” (emphasis added). Thus, it appears that appellant retained trial 

counsel and, clearly, the trial court may not order appellant to pay attorney’s fees to 

retained counsel as part of a criminal judgment. 

However, based on the judgment’s indication that the $1,222.50 was for “prior 

attorney fee,” we will presume that appellant had been previously represented by 

appointed counsel prior to retaining trial counsel, and that the trial court was ordering 

appellant to repay those fees. We believe that this presumption is the most logical 

based on the sparse information contained in the record on how these fees were 

incurred, and appellant and the State treating the order as relating to appointed 

attorney’s fees. 
4 

reimbursement of appointed attorney fees.” Mayer v. State, 274 S.W.3d 898, 901 

(Tex.App.—Amarillo 2008), aff’d, 309 S.W.3d at 558. 

 The State concedes that the trial court erred in ordering appellant to pay 

attorney’s fees without taking evidence sufficient to allow it to determine that appellant 

had the ability to pay those fees. As the record includes no evidence that appellant had 

the ability to pay attorney’s fees at the time that the trial court ordered them paid, we 

conclude that the evidence supporting this portion of the judgment is legally insufficient 

and modify the judgment to remove the order that appellant pay $1,222.50 for “prior 

attorney fee.” See id. at 902. 

Restitution 

 On the issue of the trial court’s restitution order, “[w]hen the oral pronouncement 

of sentence and the written judgment differ, the oral pronouncement controls.” Sauceda 

v. State, 309 S.W.3d 767, 769 (Tex.App.—Amarillo 2010, pet. filed). Because this 

Court has determined that restitution is an aspect of punishment, an order of restitution 

must be included in the oral pronouncement to be valid. Id. When restitution is ordered 

in a judgment but was not pronounced as an aspect of punishment, the proper remedy 

is to modify the judgment to delete the order of restitution. Id. 

 In the present case, the trial court’s oral pronouncement of sentence made no 

reference to restitution, and no evidence was received that could provide a factual basis 

for an order of restitution. However, in the judgment, the trial court ordered appellant to 

pay $140 in restitution. As the oral pronouncement of sentence omitted any order of 
5 

restitution, the trial court could not order restitution in the judgment. Consequently, we 

modify the judgment to delete the order of restitution. 

Conclusion 

 For the foregoing reasons, we modify the judgment of the trial court to delete the 

orders that appellant pay $1,222.50 for “prior attorney fee” and $140 in restitution. As 

modified, we affirm the judgment of the trial court. 

 Mackey K. Hancock 

 Justice 

Do not publish.