### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00721- CR

Austin Joel Trott, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 426 TH JUDICI AL DISTRICT

NO. 641 35, H ONO RAB LE JO E CARROLL, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant, Austin J oel Trott, pleade d g uilty to the char g e of theft of a firea rm, a state jail felony with a statutory punishment rang e of six months to two y ear s and a fine of up to $10,000. Tex. P enal Code A nn. § 31.03(a) ,(e) (4)( C) (West 2011). The tria l court plac ed appe llant on three y ear s defe rre d-adjudica

tion commu

nity supervision. Appellant was subsequently arr ested for public intox ication and burg lary of a motor vehicle. Appellant bonded out of jail and fled to Mexi co befor e the State filed a motio n to adjudicate

. He rema ined in Mexi co for two y ear s befor e returning to Texas to confr o n t his leg al problems. He pleade d “true ” to the alleg ations in the motion to adjudicate and re quested continued community supervision. The trial court adjudicated appellant g uilty and im posed a sentenc e of 18 months in state j ail. The court also assessed court-a ppointed attorney ’s fee s of $787.50 that appellant was to pay on rele ase from his sentenc e. The rec ord ref lects that the trial court twice found appellant to be indige nt. On appea l, appellant contests the assessmentof attorney ’s fee s and alleg es that the trial court abused its discretion in imposing the jail sentenc e.

We sustain a

ppellant’s first issue a

nd modify

the judg ment to delete the attorney ’s fe es aw ard; we

overr ule his second issue a

nd aff irm the judg ment of the trial c ourt as modified.

DISCUSSIO N Appellant first challeng es the assessment of $787.50 for court-a ppointed attorney ’s fee s. The code of criminal proce dure provides that if t h e court deter mines that a defe ndant has sufficie nt financia l resourc es t o offse t, in whole or in part, the costs of the leg al servic es provided to him, the court shall order him to pay the amount it finds the defe ndant is able to pay . Tex. Code Crim. Proc. Ann. art. 26.05(g ) (West 2011). An ac cu sed whom the trial court has found to be indige nt is presumed to rema in indige nt for the rest of the proce eding s in the case absent “a materia l chang e in the defe ndant’s financ ial circ umstances.” Id. art. 26.04(p) (West 2011). The defe ndant’s financ ial resour ces and ability to pa y are expli cit elements of the statute that must be supported by

rec ord evidenc e. Maye r v. State , 309 S.W .3d 552, 556 (Tex. Crim. App. 2010). I f the evidenc e does not suppor

t the trial court’ s judgme nt to pa y attorney ’s fee s, the reme dy is to modify the judgme nt to delete the attorney s’ fee s as s es s m ent. Dominguez v. State , 363 S.W .3d 926, 934 (Tex. App.—Austin 2012, no pet.) (citing Maye r , 309 S.W .3d at 557). I n the prese nt case , both the State and appellant ag ree that the re co rd evidenc e does not support the trial court’s assessment of attorney s’ fee s, and both ask that the assessment be deleted. We there fore sustain ap p el l an t’s first issue. Appellant argues in his second issue that the trial court abus ed i t s d i s cre tion in imposing a se ntence of 18 months in a state jail beca use such a

sentenc e violates the obje ctives of 2the sy stem set up by the penal code, o n e of which is reha bilitation. See Tex. Penal Code Ann. § 1.02(1)( B) (West 2011). Appellant did not raise this issue in t h e t ri al co u rt
. He arg ues t hat t he problem wa s so appar ent from the c ontext of the c ase tha t a spec ific objec tion was unnec essar y to prese rve the issue for appea l. See Tex. R. App. P. 33.1 (a) (1)( A). We disag ree . Appellant relies on

case s in which the courts of appea ls addre ssed alleg ations of bi as or fundame ntal mistakes by the trial cour

t, suc h as the trial court enter ing a deadly wea pon finding when the jury did not. See, e.g. , Edwards v. State , 21 S.W .3d 625, 626-27 (Te x . App.—Waco 2000, no pet.). Appellant does not ex p l ai n why his failure to object to a sentenc e that was within the rang e presc ribed by the leg islature rises to that level. We there fore conclude that h e wa i v ed this issue. Tex. R. App. P. 33.1; see Gilmore v. State , No. 03-10-00740- CR, 2011 WL 3659311, at *1 (Tex. App.—Austin Aug . 16, 2011, no pet.) (me m. op., not designated for publication).

I n any event, we do not think the trial court abused its discretion. Gene rally , if there is rec ord evidenc e to support the trial judge ’s sentenc e, we will not reve rse absent a showing of abuse of discretion. Jack son v. State , 680 S.W

. 2 d 8 0 9 , 8 1 4 (T ex . Crim. App. 1984). Also, as a g ener al proposit ion, appellate courts will not disturb a sentenc e that is within the s tatutory rang e. Id. Her e, the trial court had evidenc e befor e it that appellant had committed two additional crimes during his community supervision and had fled the United States for two y ear s in order to esca pe the conseque nces. I n light of these fac ts, we hold that the t ri al court did not abuse its discretion in adjudicating appellant g uilty and imposing a state jail sentenc e that appellant conce des is within the statutory rang e. We over

rule a ppellant’s sec ond issue.

3CONCLUSION Having sustained appellant’s first issue an d overr uled hi s second issue, we modify the trial court’s judgme nt to delete the awa rd for attorney ’s fee s and aff irm the judgme nt as modified.

__________________________________________ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Rose and Goodw in Modified and, a s Modified, Aff irmed Filed: Nove mber 7, 2012 Do Not Publish

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