                                         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

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.
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.




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