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 BR ADLEY S. UNDERWOOD, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION Appellant, Detrick Montgomer y, appeals the entry of a judgment of conviction for the offense of possession of a controlled subst ance (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 Divi sion of the Texas Department of Criminal Justice. Appellant’s issues do not challenge the conviction or the sentence of confinement, but rather cha llenge the trial court’s orders that appellant pay appointed attorney’s fees and restitution. We will modify t he judgment and affirm.2 Background As appellant does not chal lenge 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 pronounc ed appellant’s sentence of incarceration in open court, it inquired about a ppellant’s desire to appeal and his ability to pay for an attorney on appeal. A ppellant stated that he could not a fford to hire an attorney, and the trial court stated that it wo uld appoint an attorney to appel lant for appeal. No record evidence establishes that app ellant had the ability to pay attorney’s fees at the conclusion of trial. Howeve r, the judgment entered by t he trial court ordered appellant to pay $1,222.50 as “prior attorney fee.”
In addition, the trial court failed to addr ess the issue of restitution during the pronouncement of appellant’s se ntence and no subsequent hearin gs were held on this matter. However, the judgment ordered appellant to pay re stitution in an amount of $140. By two issues, appellant c hallenges the judgment. By his first issue, appellant contends that there was no ev idence that appellant had the financial resources or ability to pay for services rendered by court-appointed counsel and, therefor e, the trial court’s order that appellant pa y $1,222.50 for “prior attorney f ee” was in error and should be struck from the judgment. By his second issue, appellant contends that, in its oral pronouncement of sentence, the tr ial court failed to include rest itution as a part of the3 sentencing and, therefore, t he subsequent inclusion in t he judgment of an order that appellant pay $140 in restitution is invali d 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 t he defendant to pay during the pendency of the charges or, if convicted, as court costs the amount that it finds t he defendant is able to pay.” T EX

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. C ODE A NN . art. 26.05(g) (Vernon Supp. 2009). The key factors in determining the propriety of ordering re imbursement 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 evidenc e 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 appell ant retained trial counsel and, clearly, the tria l 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 indicati on that the $1,222.50 was for “prior attorney fee,” we will presume that appellant had been previous ly represented by appointed counsel prior to retaining trial couns el, and that the trial court was ordering appellant to repay those fees. We believe t hat 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 reco rd includes no evidence that appellant had the ability to pay attorney’s f ees at the time that the tria l court ordered them paid, we conclude that the evidence supporting this por tion 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 rest itution 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 restit ution is an aspect of punish ment, 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 puni shment, the proper remedy is to modify the judgment to del ete 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 t he judgment, the trial cour t ordered appellant to pay $140 in restitution. As the oral pronouncement of sentence omitted any order of5 restitution, the trial court could not order restitution in the j udgment. 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 pa y $1,222.50 for “prior attorney fee” and $140 in restitution. As modified, we affirm the j udgment of the trial court.

Mackey K. Hancock Justice

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