
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-10-00740-CR
NO. 03-10-00751-CR

NO. 03-10-00752-CR



Eric Jaron Gilmore, Appellant

v.


The State of Texas, Appellee





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

NOS. 66709, 66708 & 65902, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



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

In cause number 65902, appellant Eric Jaron Gilmore was placed on deferred
adjudication community supervision after he pleaded guilty to credit card abuse.  See Tex. Penal
Code Ann. § 32.31 (West 2011).  Appellant was subsequently adjudged guilty and sentenced to
two years in state jail after he pleaded true to alleged violations of the conditions of his supervision. 
At the same proceeding, appellant pleaded guilty to burglary of a habitation in cause numbers
66708 and 66709.  See id. § 30.02.  He was adjudged guilty and sentenced to eighteen years'
imprisonment in each cause.  Appellant contends that the eighteen-year prison terms are excessive. 
He also contends that the evidence does not support the court's order that he pay his appointed
attorney's fees.
Appellant contends, relative to the two burglary convictions, that the eighteen-year
sentences were not necessary to prevent a likely recurrence of his criminal behavior and do not meet
the objective of rehabilitation.  See Tex. Penal Code Ann. § 1.02(1)(B), (C) (West 2003).  To
preserve alleged error related to excessive punishment, a defendant must have made a timely
request, objection, or motion in the trial court.  Tex. R. App. P. 33.1(a)(1); Castaneda v. State,
135 S.W.3d 719, 723 (Tex. App.--Dallas 2003, no pet.).  Appellant did not object to the sentences
at the time they were pronounced, and he did not file a motion for new trial raising this issue.
Appellant contends that the error is fundamental and that no objection below was
required, citing Hernandez v. State, 268 S.W.3d 176 (Tex. App.--Corpus Christi 2008, no pet.), and
Jaenicke v. State, 109 S.W.3d 793 (Tex. App.--Houston [1st Dist.] 2003, pet. ref'd).  Those
opinions, however, addressed allegations of bias against the trial court that manifested itself at
sentencing.  See Hernandez, 268 S.W.3d at 184; Jaenicke, 109 S.W.3d at 795-96.  Appellant does
not contend that the trial court was biased against him.
No abuse of discretion is shown in any event.  Appellant pleaded guilty to
two habitation burglaries, first degree felonies punishable by imprisonment for five to
ninety-nine years or life.  The record reflects that he committed the first burglary less than one week
after he was placed on community supervision in the credit card abuse case.  Although appellant does
not appear to have an extensive criminal history, it was well within the trial court's discretion to
conclude that concurrent eighteen-year prison terms for burglary of a habitation best served the
interest of appellant's rehabilitation.  Issue two is overruled.
Appellant contends in all three appeals that the evidence does not support the order
to pay his appointed attorney's fees.  A trial court's authority to order a defendant to repay the cost
of court-appointed counsel is expressly conditioned on the court determining that the defendant has
the financial resources and ability to pay.  Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp.
2010).  The defendant's financial resources and ability to pay are explicit critical elements under
article 26.05(g) that must be supported by record evidence.  Mayer v. State, 309 S.W.3d 552, 556
(Tex. Crim. App. 2010).  No trial objection is required to preserve the sufficiency of the evidence
for appellate review.  Id.  When the evidence does not support the order to pay attorney's fees, the
proper remedy is to delete the order.  Id. at 557.
The judgments in cause numbers 65902 and 66708 order appellant to pay $300 and
$440 in attorney's fees, respectively.  The State concedes that there is nothing in the record to
indicate that the trial court, either before or after ordering appellant to pay the costs of his appointed
counsel, determined that appellant was no longer indigent and had the ability to pay.  Accordingly,
the orders will be deleted from the judgments.  The judgment in number 66709 does not order the
payment of attorney's fees and, therefore, no error is presented in that cause.
The judgment of conviction in number 66709, our cause number 03-10-00740-CR,
is affirmed.  The judgment of conviction in number 66708, our cause number 03-10-00751-CR, is
modified to delete the notation "$440.00 Attorney Fees" under the heading "Court Costs"; as
modified, the judgment is affirmed.  The judgment of conviction in number 65902, our cause number
03-10-00752-CR, is modified to delete the notation "$300.00 Attorney Fees" under the heading
"Court Costs"; as modified, the judgment is affirmed.



				__________________________________________
				Melissa Goodwin, Justice
Before Chief Justice Jones, Justices Henson and Goodwin
03-10-00740-CR	Affirmed
03-10-00751-CR	Modified and, as Modified, Affirmed
03-10-00752-CR	Modified and, as Modified, Affirmed
Filed:   August 16, 2011
Do Not Publish
