NO. 07-10-0315-CR 

IN THE COURT OF APPEALS 

FOR THE SEVENTH DISTRICT OF TEXAS 

AT AMARILLO 

PANEL C 

OCTOBER 17, 2011 

______________________________ 

MORTY V. WALKER, APPELLANT 

V. 

THE STATE OF TEXAS, APPELLEE 

_________________________________ 

FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY; 

NO. 2007-418161; HONORABLE BRADLEY S. UNDERWOOD, JUDGE 

_______________________________ 

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

MEMORANDUM OPINION 

On January 15, 2009, pursuant to a plea agreement, Appellant, Morty V. Walker, 

was granted ten years deferred adjudication for failure to comply with sex offender 

registration requirements under article 62.102 of the Texas Code of Criminal 

Procedure.1

 On November 3, 2009, the State moved to proceed with an adjudication of 

 

1

Tex. Code Crim. Proc. Ann. art. 62.102(a) (West 2006). 
2 

guilt based on several violations by Appellant of the conditions of his community 

supervision. At the hearing on the State's motion, Appellant entered a plea of not true 

to the allegations contained in the motion. After hearing testimony, the trial court found 

that Appellant had violated the conditions of community supervision, found the two 

enhancement allegations contained in the indictment to be true, and sentenced him to 

twenty-five years. By a sole point, Appellant alleges a violation of article 42.12, section 

5(b) of the Texas Code of Criminal Procedure as a result of the trial court's failure to 

conduct a separate punishment hearing. We modify the judgment and affirm as 

modified. 

Background Facts 

The facts flowing from Appellant's guilty plea are minimal. Appellant was 

originally convicted of sexual assault of a child under the age of fifteen in the early 

1990s. After serving his sentence, in 2007, he was charged with failure to register as a 

sex offender and in 2009, was granted deferred adjudication for that offense. At the 

hearing on the State's motion to proceed later in 2009, Appellant testified in his own 

behalf, admitted to violating the conditions of his community supervision, took 

responsibility for his actions and asked the trial court for another chance. He also called 

two witnesses in his defense who testified favorably about his work ethic and 

intelligence. 

After both sides closed, the trial court announced: 

So your probation is revoked. The Court finds that you're guilty of the 

offense of failure to register as a sex offender as shown in the indictment, 
3 

enhancement allegations are both true pursuant to your plea of guilty back 

on January 15th of 2009. 

After announcing the twenty-five year sentence, the trial court asked, "[i]s there any 

reason sentence should not be pronounced today? Trial counsel responded, "[n]o legal 

reason, Your Honor.” 

Analysis 

Relying on Pearson v. State, 994 S.W.2d 176 (Tex.Crim.App. 1999), and Issa v. 

State, 826 S.W.2d 159 (Tex.Crim.App. 1992), Appellant argues he had a statutory right 

to a separate punishment hearing following revocation of his deferred adjudication 

community supervision. While we do agree that Appellant was entitled to a separate 

punishment hearing, we do not agree with his position that the failure to provide that 

hearing was reversible error. 

 Generally, when a defendant waives a jury trial and enters a guilty plea to a noncapital offense, the proceedings become a unitary trial. Barfield v. State, 63 S.W.3d 

446, 449-51 (Tex.Crim.App. 2001). In adjudication of guilt proceedings, the assessment 

of punishment normally falls on the heels of a finding of guilt.2

 

 The right to a separate punishment hearing is a statutory right that can be 

waived. See Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.Crim.App. 2001). To avoid 

 

2

"After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of 

sentence, . . . continue as if the adjudication of guilt had not been deferred. See Tex. Code Crim. Proc. 

Ann. art. 42.12, § 5(b) (West Supp. 2010). 
4 

forfeiture of that right, a defendant must complain at trial or in a motion for new trial. Id.3 

No motion for new trial was filed in the underlying proceeding following Appellant's 

adjudication of guilt. Additionally, the record reflects that Appellant was given an 

opportunity to object or present punishment evidence when counsel was asked by the 

trial court if he knew of any reason why sentence should not be pronounced. See 

Hardeman v. State, 1 S.W.3d 689, 690 (Tex.Crim.App. 1999). Failure to bring the 

complaint to the trial court's attention waived any error. See id. See also Tex. R. App. 

P. 33.1(a). 

Furthermore, assuming arguendo that Appellant preserved his complaint, as 

explained in Pearson, it is immaterial that the presentation of mitigating evidence comes 

before the actual words of adjudication. 994 S.W.2d at 179. In Pearson, the defendant 

had the opportunity, albeit during the adjudication phase, to present evidence and testify 

in his own behalf. "That is all that is required." Id. 

In the underlying proceeding, Appellant had the opportunity to present mitigating 

evidence through two witnesses and his own testimony. One of his witnesses testified 

favorably about his intelligence and willingness to work hard and described him as 

having a "good heart." A second witness testified that she hired Appellant to be a sign 

walker for national retail liquidations. When liquidations slowed down, Appellant found 

construction work and eventually became employed at Texas Roadhouse restaurant. 

She pleaded with the court for Appellant to be given another chance. 

 

3

Issa is distinguishable because the defendant had neither the opportunity to present punishment 

evidence nor the opportunity to object because the trial judge immediately left the bench after 

adjudicating guilt and sentencing the defendant in one proclamation. 826 S.W.2d at 161. The Court 

determined that under the circumstances, error was preserved by the timely filing of a motion for new trial 

complaining of the trial court's action. Id. 
5 

During his testimony, Appellant took responsibility for his poor choices and failure 

to take advantage of opportunities. He also admitted that his struggle with crack 

cocaine for twenty-five years led to a dysfunctional life. However, he felt he had 

"redeemable qualities." He believed that if given another chance, he could comply with 

the conditions of community supervision with intensive treatment and monitoring. 

Notwithstanding Appellant's failure to preserve error on the trial court's failure to conduct 

a separate punishment hearing, he was afforded a full opportunity to and did present 

mitigating evidence during the adjudication phase. That is all that was required under 

Pearson. 994 S.W.2d at 179. Consequently, we find no error and overrule Appellant's 

sole contention. 

Attorney's fees 

We also note an issue not raised by Appellant regarding the assessment of 

attorney's fees.4

 The written judgment reflects the assessment of $1,912.72 for court 

costs of which $1,698.78 is for court-appointed attorney's fees. In order to assess 

attorney's fees as court costs, a trial court must determine that the defendant has 

financial resources that enable him to offset in part or in whole the costs of legal 

services provided. Tex. Code Crim. Proc. Ann. art. 26.05(g) (West 2009). The clerk's 

record reflects the trial court found Appellant indigent and appointed counsel to 

represent him in this appeal. Unless a material change in his financial resources 

occurs, once a criminal defendant has been found to be indigent, he is presumed to 

 

4

Courts of appeals may review unassigned error in criminal cases, particularly where the record discloses 

error that should be addressed in the interest of justice. Hammock v. State, 211 S.W.3d 874, 878 

(Tex.App.--Texarkana 2006, no pet.). Where, as here, the error appears on the face of the judgment and 

does not involve the merits of the criminal trial, but instead solely addresses the clerical correctness of the 

judgment, we find that the interest of justice dictate that we address the issue. 
6 

remain indigent for the remainder of the proceedings. Tex. Code Crim. Proc. Ann. art. 

26.04(p) (West Supp. 2010). Furthermore, the record must reflect some factual basis to 

support the determination that the defendant is capable of paying attorney's fees. 

Barrera v. State, 291 S.W.3d 515, 518 (Tex.App.--Amarillo 2009, no pet.); Perez v. 

State, 280 S.W.3d 886, 887 (Tex.App.--Amarillo 2009, no pet.). 

Here, there is evidence of record demonstrating that immediately following 

rendition of judgment Appellant was indigent and qualified for court-appointed counsel; 

thus, we presume his financial status has not changed. Therefore, we conclude the 

assessment of court-appointed attorney's fees was improper. See Mayer v. State, 309 

S.W.3d 552, 555-56 (Tex.Crim.App. 2010). No trial objection is required to challenge 

the sufficiency of the evidence regarding the defendant's ability to pay. Id. When the 

evidence does not support payment of court-appointed attorney's fees, the proper 

remedy is to delete those fees from the judgment or order. See id. at 557. See also 

Anderson v. State, No. 03-09-00630-CR, 2010 Tex.App. LEXIS 5033, at *9 (Tex.App.--

Austin July 1, 2010, no pet.) (not designated for publication) (modifying judgment to 

delete attorney's fees). Accordingly, we modify the judgment so as to delete any 

obligation to pay $1,698.78 in court-appointed attorney's fees. 

Conclusion

 As modified, the trial court's judgment is affirmed.

 Patrick A. Pirtle 

 Justice 

Do not publish.