
                              NO. 07-10-0072-CR

                           IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                 AT AMARILLO

                                   PANEL D

                              NOVEMBER 22, 2010

                       ______________________________


                       ELISEO RENE ZAMBRANO, APPELLANT

                                     V.

                        THE STATE OF TEXAS, APPELLEE


                      _________________________________

                FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

              NO. B18071-0906; HONORABLE EDWARD LEE SELF, JUDGE

                       _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

                             CONCURRING OPINION

      While I agree with the conclusion reached by  the  majority,  I  write
separately to address  an  issue  not  raised  by  Appellant  regarding  the
assessment of attorney's fees.[1]  The written judgment in this case  orders
the defendant to pay attorney's fees in the amount of $1,200.  In  order  to
assess attorney's fees, a trial 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)
(Vernon 2009).  Furthermore, the record must reflect some 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.--Amarillo
2009, no pet.).

      We are unable to find any evidence that would support a  finding  that
Appellant had financial resources that would enable him to pay  all  or  any
part of the fees paid his court-appointed counsel.  Therefore,  we  conclude
that the order to pay attorney's fees was improper.   See  Mayer  v.  State,
309  S.W.3d  552,  555-56  (Tex.Crim.App.  2010).   No  trial  objection  is
required  to  challenge  the  sufficiency  of  the  evidence  regarding  the
defendant's ability to pay.  Id.  When the  evidence  does  not  support  an
order to pay attorney's fees, the proper remedy  is  to  delete  the  order.
Id. at 557; See also Anderson v. State, No.  03-09-00630-CR,  2010  Tex.App.
LEXIS 5033, at *9 (Tex.App.--Austin July 1, 2010, no pet.)  (also  modifying
judgment to delete  attorney's  fees).   Accordingly,  I  would  modify  the
judgment to delete  the  order  to  pay  attorney's  fees,  and  affirm  the
judgment as modified
                                        Patrick A. Pirtle
                                              Justice


Do not publish.
-----------------------
[1]Courts  of  appeals  may  review  unassigned  error  in  criminal  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, does not involve the  merits  of  the  trial,  and  is  easily
corrected by modifying the judgment, I believe that the interest of  justice
dictates that we address the issue.

