### 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. 03-10-00621- CR NO. 03-10-00622- CR

Shelley Margare t Sm ith, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 264 TH JUDICI AL DISTRICT NOS . 663 95 & 663 96, H ONO RAB LE MARTH A J. TRUDO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant Shelley Marg are t Smit h was char g ed with debit car d abuse and eva d i ng

arr est with a mot or vehicle and was ap p ointed an attorney pursuant to article 26.04 of t he code of criminal proc ed u re . See Tex. Code Crim. Proc. Ann. art. 26.04 (West Supp. 2010) (g overning appointment of counsel for indige nt defe ndants). Smit h pled gu i l t y t o both char g es without a plea barg ain and pled true to alleg ations of two prior felony convictions. During sentenc ing, the trial court sa id, “The c ourt sentenc es y ou in eac h case to f ive y ear s in TDCJ with y our jail cre dits, court costs and court appointed attorney ’s fees. And i n [t he debit-c ard c ase] the Court order s y ou pay restitution of $366.31.” The court conclude d, “And ma’am, as to court costs and attorney ’s fee s and the r estitution. You pay y our cour

t costs and fe es if you are able to do so, but y our re stitut ion will also have to be paid.” I n the evading -ar rest judgme nt (trial court cause number 66396), the court imposed a require ment that Smit h repa y her attorney ’s fees

. T h e debit-ca rd-a buse judgme nt (trial cour t cause number 66395) doe s not include such a pr ovision.Smit h complains that the evidenc e is insufficient to support t h e trial court’s order

requiring her to repa

y her attorney ’s fee s, and the State conce des there was no evidenc e to show that Smit h’s financ ial circ umstances improved afte r the initial finding that she was indige nt and entitled to an appointed attorney
. See id. I n the evading -ar rest cause , the State ag ree s that the proper reme dy is to ref orm the judgme nt to remove the order requiring Smit h to rep ay her attorney ’s fee s. See Maye r v. State , 309 S.W .3d 552, 557 (Tex. Crim. App. 2010). We ag ree and modify the trial court’s judgme nt in cause number 66396 to delete the provision requi ri n g Smit h to repa y attorney ’s fees. As modified, we a ffirm the judgment in that cause

.

As for the debit-ca

rd-a buse cause , the written judgme nt does not order Smit h to repa y attorney ’s fee s, and the St at e as s erts that no ref ormation is nece ssary . We ag ree . I f there is a discrepa ncy betwee n an orally pronounce d sentenc e and a written judgme nt, the oral pronounce ment controls. Ex parte Madding , 70 S.W .3d 131, 135 (Tex. Crim. App. 2002). When a written judgme nt does not confor

m to an oral sentenc e, the usual reme dy is to re form the judgme nt to match the oral pronounce ment. Aguilar v. State , 279 S.W .3d 350, 355 (Tex. App.—Austin 2007, no pet.). Howeve r, beca

use the err or in this cause lies only in the oral pronounce ment, not the written judgme nt, there is no need to ref orm the judgme nt t o m at ch t he trial court’s oral deter mination. The judg ment in cause number 66395 is af firmed.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ David Pury ear , J ustice Be fore J ustices Pury ear , Pemberton and Rose Cause Number

03-10-00621 CR: Affirme d Cause Number

03-10-00622- CR: M odified and, a s Modified, Aff irmed Filed: August 31, 2011 Do Not Publish 2