TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-10-00621-CR

NO. 03-10-00622-CR

Shelley Margaret Smith, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT

NOS. 66395 & 66396, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Appellant Shelley Margaret Smith was charged with debit card abuse and evading

arrest with a motor vehicle and was appointed an attorney pursuant to article 26.04 of the code of

criminal procedure. See Tex. Code Crim. Proc. Ann. art. 26.04 (West Supp. 2010) (governing

appointment of counsel for indigent defendants). Smith pled guilty to both charges without a

plea bargain and pled true to allegations of two prior felony convictions. During sentencing, the

trial court said, “The court sentences you in each case to five years in TDCJ with your jail credits,

court costs and court appointed attorney’s fees. And in [the debit-card case] the Court orders you

pay restitution of $366.31.” The court concluded, “And ma’am, as to court costs and attorney’s fees

and the restitution. You pay your court costs and fees if you are able to do so, but your restitution

will also have to be paid.” In the evading-arrest judgment (trial court cause number 66396), the court

imposed a requirement that Smith repay her attorney’s fees. The debit-card-abuse judgment

(trial court cause number 66395) does not include such a provision.
Smith complains that the evidence is insufficient to support the trial court’s order

requiring her to repay her attorney’s fees, and the State concedes there was no evidence to show that

Smith’s financial circumstances improved after the initial finding that she was indigent and entitled

to an appointed attorney. See id. In the evading-arrest cause, the State agrees that the proper remedy

is to reform the judgment to remove the order requiring Smith to repay her attorney’s fees. See

Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010). We agree and modify the trial court’s

judgment in cause number 66396 to delete the provision requiring Smith to repay attorney’s fees.

As modified, we affirm the judgment in that cause.

As for the debit-card-abuse cause, the written judgment does not order Smith to repay

attorney’s fees, and the State asserts that no reformation is necessary. We agree. If there is a

discrepancybetween an orallypronounced sentence and a written judgment, the oral pronouncement

controls. Ex parte Madding, 70 S.W.3d 131, 135 (Tex. Crim. App. 2002). When a written judgment

does not conform to an oral sentence, the usual remedy is to reform the judgment to match

the oral pronouncement. Aguilar v. State, 279 S.W.3d 350, 355 (Tex. App.—Austin 2007, no pet.).

However, because the error in this cause lies only in the oral pronouncement, not the

written judgment, there is no need to reform the judgment to match the trial court’s oral

determination. The judgment in cause number 66395 is affirmed.

___________________________________________

David Puryear, Justice

Before Justices Puryear, Pemberton and Rose

Cause Number 03-10-00621 CR: Affirmed

Cause Number 03-10-00622-CR: Modified and, as Modified, Affirmed

Filed: August 31, 2011

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