### 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. 03-09-00486- CR

Raheem Ge nerous Gor don, Ap pellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 27TH JUDICI AL DISTRICT NO. 597 63, 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 Rahee m Gene rous Gordon pleade d true to alleg ations that he violated the terms and conditions of his defe rre d adjudication community supervision. I n i t s j u dg ment adjudicating g uilt, the trial court order ed Gordon to pay $1,235 in attorney s’ fee s and $ 4 5 8

. 3 5 in restitution. Gordon, who had been deter mined to be indige nt in prior proce eding s in the same case , arg ues t hat t he evidence was factually insufficient to support the t rial co u rt ’s apparent conclusion that his financ ial circ umstances had materia lly chang ed. He also arg ues that the trial court err ed in order ing the pay

ment of restitution in its written judgme nt when it had not been pronounce d orally

. We ref orm the trial court’s judgme nt to delete the assessments for attorney s’ fee s and restit u t i on and, as r efor

med, af firm. Gordon pleade d g uilty to ag g rava ted assault with a deadly wea pon. See Tex. Pena l Code Ann. § 22.02(a) (2) (West Supp. 2009). Pursuant to a plea a g ree ment, the trial cour t ordere dGordon to be place d on defe rre d adjudication community supervision for four y ear s. As a condition

of his community supervision, th e t ri al co urt also order ed that Gordon pay $558.35 in restitution for medic al bills and emerg ency medical se rvice s. Three y ear s later, the State filed a motion to adjudicate based on alleg ations that Gordon had violated the terms and conditions of his community supervision. One of those violations

was Gordon’s failure to pay the restitution order ed. At the time of the State’s motion, Gordon still owed $458.35. Gordon signe d a judicial confe ssion admitting the truth of the State’s alleg ations. A hear ing was held, during which Gordon offe re d s o m e testimony as to his financ ial circ umstances during his community supervision, befor e he was ag ain i ncar cer ated for vi olat ing the terms of his community supervision. At the conclusion of t he hearing , the trial court orally sentenc ed Gordon

t o t wo y ea rs i n prison, but made no mention of either attorney s’ fee s or restitution. I n its written adj u d i cation of g uilt, howeve r, the trial court order ed Gordon to pay the rema ining restitution owed—$458.35—a s well as $1,235 for reimburse ment of cour

t-appointed a

ttorney s’ fe es. I n his first issue, Gordon arg ue s tha t the evidenc e was fac tually insufficient to support the trial cour

t’s order of attorney s’ fees. The parties ag ree that the cour t’s order of attorne y s’ fe es

n ee d n o t h ave been a part of its oral pronounce ment. See W eir v. State , 252 S.W .3d 85, 88 (Tex. App.—Austin 2008), rev’ d in part on other grounds , 278 S.W .3d 364 (Tex. Crim. App. 2009). They dispute only whether the evidenc e was fac tually sufficie nt to support the cour t’ s order requiring Gordon to re imburse the county for c ourt-appointed attorney s’ fe es.

2I n evalua ting the fac tual sufficie ncy of the evidenc e, we view all the evidenc e in

a neutra l light and will set aside the verdic t only if we are able to say , with s o m e objective basis in the rec ord, that the conviction is clea rly wrong or manifestly unjust b ec au se the g rea t weig ht and preponde ranc e of the evidenc e contra dicts the verdic t. W atson v. State , 204 S.W .3d 404, 414-17 (Tex. Crim. App. 2006). We cannot conclude that a conflict i n the evidenc e justifies a new trial simply beca

use we disag ree with the fac t-finder ’s resolution of that conflict, and we do not intrude upon the fac t-finder ’s role as the sole judge of the weig ht and cre dibilit y of witness testimony

. See i d

. at 417; Fuentes v. State , 991 S.W .2d 267, 271 (Tex. Crim. App. 1999). The fac t-finder m ay choose t o b el i ev e all, some, or none of the testimony prese nted. Chambers v. State , 805 S.W .2d 459, 461 (Tex. Crim. App. 1991); Bargas v. State , 252 S.W .3d 876, 888 (Tex. App.—Houston [14t h Dist.] 2008, no pet.). I n our revie w, we discuss the evidenc e that, acc ordi n g t o appellant, undermines the jur

y ’s ver dict. Sims v. State , 99 S.W .3d 600, 603 (Tex. Crim. App. 2003). Article 26.05 of the code of criminal p ro cedur e g overns the assessment of courtappointed attorney s’ fee s. I ncluded in article 26.05 is a provision authorizing the trial court to order reimburse ment of attorne y s’ fee s by the defe ndant—in full or in pa rt—if the cour

t determines that the defe ndant has the financ ial resour ces. Tex. Code Crim. Proc. Ann. art. 26.05 (West Supp. 2009). Acc ording to the court of criminal appea ls in Maye r v. State , a trial court order to reimburse courtappoin t ed at t orney s’ fee s can be challeng ed for sufficie ncy of the evidenc e to support it and, there fore , such chall enge can be raised for the first time on appea l. 309 S.W .3d 552, 554-56 (Tex. Crim. App. 2010); see Rankin v. State , 46 S.W .3d 899, 901 (Tex. Crim. App. 2001) (“A claim reg arding sufficie ncy of t he evidence need not be preserve d for r ev i ew at t he trial level and is not

3waived by the failure to do so.”). The court also held that if the evidenc e is found to be insufficient,

the pref err ed reme dy is not rema

nd to the trial court, but re formation of the judgme nt to delete the order for pa y ment of attorne y s’ fe es. Maye r , 2010 Tex. Crim . App. L EXI S 100, at *15. When Gordon was initially indicted for the underly ing offense , he was determined
to be indige nt and appointed an attorney

. L ikewise, following the State’s motion to ad j udicate, Gordon completed a financ ial questionnaire, and his reque st for a court-a ppointed attorn ey wa s g rante d. There afte r, he w as pre sumed to remain indig ent abse nt a materia l c hang e in his financ ial ci rcumstances. See Tex. Code Crim. Proc. Ann. art. 26.04(p) (West Supp. 2009). Following t h e hear ing but befor e the entry of judgme nt, t h e t ri al court appar ently deter mined that, based on evidenc e adduce d at his punishment hear ing, Gordon’s financ ial situation ha d materia lly chang ed.

Evidence prese nted to the trial co u rt includes Gordon’s testimony that, during the time that he was on community supervision, he had i n t er m i t tently lived at hi s g y m, wher e he was training as a profe ssional box er, beca use he h ad nowher e else to g o and could not pay for an apar tment. Gordon stated that it was difficult to find a g ood job that would allow him to pursue his box ing. Howeve r, he did state that, beg inning on May 4, 2008, he had been assisting a man who owned a landsca

ping company . On the day s he worke d, he ear ned $70 to $80 per day

. He testified that during that time he had a car , but the car “just sat” beca use it did not w ork. At some point, he beg an renting a house and testified t hat he had a drea m of owning “a few houses,” h o u s es t h at he would buy

with money

he hoped to e ventually

make f rom his box ing c are er. Ba s ed o n our revie w of the rec ord, we cannot conclude that there was fac tually sufficie nt evidenc e to support the trial court’s appar ent deter mination that there had been a materia l

4chang e in Gordon’ s financ ial circ umstances. At the time of the hea ring , Gordon wa s incarc era ted for violating his probation and had be en inca rce rate d for a

bout ninety

day s. Gordon testified that, befo re that, he had been working with a landsca ping company for about a y ear and ear ned about $70 to $80 per day when he did work. This was the same information provided in his ear lier financ ial questionnaire—c ompleted befor e he was appointed an attorney —on which Gordon indicated that this was not steady employ ment. There is no evidenc e—either from the questionnaire

or from Gordon’s testimony —as to how much Gordon ultimately ear ned during his time there

. For

som e p er i o d o f t ime, Gordon appar ently had enoug h money to rent a house, the renta l pay ment for which had also been noted on his financi al q u es t ionnaire. Howeve r, as noted, there was no evidenc e prese nted as to how much money Gordon ultimately ea rn ed or as to whether Gordon’s incom e wa s sufficie nt to cover his basic living expenses. Be y ond the fac t that Gordon had been incar cer ated, there is no indica tion that his financial circ umstances had chang ed at all betwee n the time that he was deter

mined to be indige nt a

nd the time that the that the court enter ed its judgme nt order ing Gordon to pay attorney s’ fee s. Although Gordon had been training as a profe ssional box er and had a “dream” of continuing to pursue this car eer and ear ning a substantial income in the proce ss, there is no indication that—at the time he was sentenc ed—he had ear ned any money at all fr o m h i s box ing, and he would cer tainly be unable to continue to pursue his box ing car eer —o r t o hold any job at all—while in prison. Our revie w of the rec ord shows that the evidenc e was fac tually insufficient to support the trial court’s deter

mination that Gordon’s financ ial circ umstances had materia lly chang ed, and there fore , the presumption of indige nce rema ins. See id. Acc ording ly , pursuant to Maye r , we ref orm

5the trial court’s judgme nt to delete the order for pay ment o f court-a

ppointed attorney s’ fee s. See 2010 Tex. Crim . App. L EXI S 100, at *15.

I n his second issue, Gordon arg ues that the trial court err ed in order ing the pay ment of restitution in the written judgme nt when it had not orally o rder ed pay ment of restitution at the time of sentenc ing. The State conce des that restitution is part of the sentenc e an d m u s t be included in the oral pronounce ment. See Abron v. State , 997 S.W .2d 281, 282 (Tex. App.—Dallas 1998, pet. ref

’d). Where, as here , the defe ndant h ad initially been g iven defe rre d adjudication,
sentenc ing does not occur until community supervision is revoke d. See Taylor v. State , 131 S.W .3d 497, 502 (Tex. Crim. App. 2004). Thus, the oral pronounce ment made at the sent en ci n g h ea ri ng following the State’s motion to adjudicate controls, and we ref orm the judgme nt to delete the order of re stitut ion. See id.

The trial court’s judgment is ref ormed to delet e attorney s’ fees and restitution. As ref ormed, the judg ment is affirme d.

__________________________________________ G. Alan Waldrop, Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Waldrop Modified and, a s Modified, Aff irmed Filed: Aug ust 4, 2010 Do Not Publish

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