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 364 TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2007-418161; HONORABLE BRAD LEY S. UNDERWOOD, JUDGE

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

MEMORANDUM OPINION
On January 15, 2009, pursuant to a plea ag reement, Appellant, Morty V. Walker, was granted ten years deferred adjudication fo r 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 mov ed 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 Appella nt 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 Crim inal 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 A ppellant's guilty plea are mi nimal. Appellant was originally convicted of sexual assault of a child under the age of fifteen in the early 1990s. After serving his sentenc e, 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 comm unity supervision, took responsibility for his actions and asked the trial court for anothe r chance. He also called two witnesses in his defense who testifi ed favorably about his work ethic and intelligence.
After both sides closed, the trial court announced:
So your probation is revoked. The C ourt finds that you're guilty of the offense of failure to register as a se x offender as shown in the indictment,3 enhancement allegations are both true pur suant to your plea of guilty back on January 15th of 2009. After announcing the twenty-five year sentence, the trial court aske d, "[i]s there any reason sentence should not be pronounced today? Trial couns el 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.A pp. 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 t hat Appellant was entit led to a separate punishment hearing, we do not agree with his pos ition that the failure to provide that hearing was reversible error.
Generally, when a defendant waives a jury trial and enters a gui lty 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 adjudica tion of guilt proceedings, the assessment of punishment normally falls on the heels of a finding of guilt. 2

The right to a separate punishment hear ing 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 adjudi cation 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 def endant must complain at trial or in a motion for new trial. Id. 3 No motion for new trial was filed in the underlying proceeding fo llowing Appellant's adjudication of guilt. Additionally, the reco rd 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 preser ved his complaint, as explained in Pearson , it is immaterial that the present ation of mitigating evidence comes before the actual words of adjudication. 99 4 S.W.2d at 179. In Pearson , the defendant had the opportunity, albeit during the adjudica tion phase, to present evidence and testify in his own behalf. "That is all that is required." Id.
In the underlying proceeding, Ap pellant had the opportunity to present mitigating evidence through two witnesses and his own test imony. One of his witnesses testified favorably about his intelligence and willing ness to work hard and described him as having a "good heart." A second witness testifi ed that she hired A ppellant to be a sign walker for national retail liquidations. When liquidations slowed dow n, Appellant found construction work and event ually became employed at Texas Roadhouse restaurant. She pleaded with the court for Appell ant 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 t he circumstances, error was preserve d by the timely filing of a motion for new trial complaining of the trial court's action. Id.5 During his testimony, Appellant took respon sibility for his poor choices and failure to take advantage of opportunities. He al so admitted that his struggle with crack cocaine for twenty-five years led to a dysf unctional life. Howeve r, he felt he had "redeemable qualities." He belie ved that if given another chance, he could comply with the conditions of community supervision wit h intensive treatment and monitoring. Notwithstanding Appellant 's failure to preserve error on t he trial court's failure to conduct a separate punishment hearing, he was affor ded a full opportunity to and did present mitigating evidence during the adjudication phas e. 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 t he assessment of $1,912.72 for court costs of which $1,698.78 is fo r court-appointed attorney's fees. In order to assess attorney's fees as court costs, a tria l 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 f ound to be indigent, he is presumed to

4 Courts of appeals may review unassigned error in crim inal 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 crim inal trial, but instead solely addres ses the clerical correctness of the judgment, we find that the interest of justic e dictate that we address the issue.6 remain indigent for the remainde r of the proceedings. Tex. Code Crim. Proc. Ann. art. 26.04(p) (West Supp. 2010). Furthermore, the re cord must reflect so me 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.--A marillo 2009, no pet.).

Here, there is evidence of record demonstrating that immediately following rendition of judgment Appellant was indigent and qualified fo r court-appointed counsel; thus, we presume his financial status has not changed. Therefore, we conclude the assessment of court-appointed at torney's fees was improper. See Mayer v. State, 309 S.W.3d 552, 555-56 (Tex.Crim.A pp. 2010). No trial objecti on is required to challenge the sufficiency of the evidence regardi ng the defendant's ability to pay. Id. When the evidence does not support payment of cour t-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 Te x.App. LEXIS 5033, at *9 (Tex.App.-- Austin July 1, 2010, no pet.) (not designated for publicat ion) (modifying judgment to delete attorney's fees). Accordingly, we modify the judgment so as to delete any obligation to pay $1,698.78 in cour t-appointed attorney's fees.

Conclusion
As modified, the trial c ourt's judgment is affirmed.

Patrick A. Pirtle Justice Do not publish.