### 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. 03-10-00228- CR

Dontez P ete r Jones, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 27TH JUDICI AL DISTRICT NO. 655 94, 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 Dontez Peter J ones pleade d g uilty to ag g rava ted robber y . See Tex. Penal Code Ann. § 29.03 (West 2003). After hearing testimony and re viewing a pre sentenc e re port, the trial court assessed punishment at six teen y ear s in prison. I n two issues, appellant contends that the punishment is excessive an d t h at the evidenc e does not support the court’s order that he pay his attorney fee s. W e s u s t ai n the latter contention, modify the trial court judgme nt, and aff irm the judgme nt as modified.

An attorney was appointed to repr esent appellant at trial. See Tex. Code Crim. Proc. Ann. art. 26.04 (West Supp. 2010). Howeve r, a differ ent attorney filed all the pleading s and appea red in court on appellant’ s behalf

. The rec ord is silent as to whether this at t o rn ey was ap p o i n t ed or reta ined. There was no mention of appellant’ s financ ial status at trial. The court’s judgme nt lists court costs, including $ 1495.00 for attorney fee s, and order s that the costs be paidafte r rele ase from p ri s o n . An attorney was appointed to repr esent appellant on appea l, but y et

another attorney (appe llant’s fourth) w as subseque ntly reta ined for the appea l. A trial court’s authority to order a defe ndant to repa y the cost of court-a

ppointed leg al counsel is expressly conditioned on the court deter mining that the defe ndant has the fi n an ci al

resour ces and ability to pay . Id

. art. 26.05(g ). The defe ndant’s financ ial resour ces and ability to pay

are ex p l i cit critica l elements under article 26.05(g ) that must be supported by rec ord evidenc e. Maye r v. State , 309 S.W .3d 552, 556 (Tex. C ri m . Ap p . 2010). No trial objection is require d to prese rve the sufficie ncy of the evidenc e for appellate rev i ew . Id

. When the evidenc e does not support the orde r to pay

attorney ’s fe es, the prope r re medy is to delete the orde r. Id . at 557. There is nothing in the rec ord to indicate that the trial court, either befor e o r after order ing appellant to pay the cost of his appointed counsel, deter mined that appellant was no longe r indige nt and had the a

bility to pay . Acc ording ly , the orde r will be dele ted from the judg ment. Appellant contends that the six teen- y ear prison term imposed by the court “is mere ly punitive a nd does not f

urther [t he] Penal Code’s g oal of re habilitation.” To prese rve alleg ed err or rela ted to excessive punishment, a defe ndant must have made a timely reque st, objection, or motion at t h e t ri al court. Tex. R. App. P. 33.1(a) (1); Castaneda v. State , 135 S.W .3d 719, 723 (Tex. App.—Dallas 2003, no pet.). Appellant did not object to the sentenc e at the time it was announce d,

nor did he file a motion for new trial raising this issue. Thus, ap p ell ant has not prese rved this contention for r eview.

No abuse of discretion is shown in any event. Appel l ant pleade d g uilty to a first deg ree felony punishable by imprisonment for five to ninety -nine y ear s or life. The rec ord ref lects

2that appellant committed this a g g r a v a te d r obbery less than one month afte r pleading g uilty to evading

arr est and while awa iting sentenc ing for that offe nse. Appellant was twenty y ear s old and appar ently had no prior criminal rec ord befor e committing these offe nses. Appellant was arme d with a shotgun during the robbery , and he struck the complainant with that wea pon even though the com p l ainant did not resist and gave appellant his money . Under the circumstances, it was well within the t rial court’s discretion to conclude that appellant’ s reha bilitation, not to mention the other objectives of the penal code, was best serve d by a conv i ct i o n and prison term rathe r than by the defe rre d adjudication urg ed by

defe nse counse l. The judgme nt of conviction is modified to delete the notat i o n “Attorney Fe es $1495.00” under

the hea ding of

court c osts. As modified, the judgme nt is affirmed.

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Melissa Goodwin, Jus tice Be fore Chief J ustice Jones, J ustices Henson a nd Goodwin Modified and a s Modified, Aff irmed Filed: Apr il 26, 2011 Do Not Publish

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