                                   NO. 07-08-0327-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL C

                                  MARCH 11, 2009
                          ______________________________

                            GILBERT ALEXANDER PEREZ,

                                                               Appellant

                                             v.

                                THE STATE OF TEXAS,

                                                      Appellee
                        _________________________________

              FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                     NO. 57006-A; HON. HAL MINER, PRESIDING
                        _______________________________

                                     Opinion
                         _______________________________

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

       Gilbert Alexander Perez was convicted after a guilty plea of delivery of a controlled

substance (methamphetamine) in an amount of one gram or more but less than four

grams. Punishment was tried to the court, and appellant was sentenced to 25 years

confinement and ordered to pay attorney’s fees in an amount of $1,250. He appeals that

sentence by contending 1) that it is grossly disproportionate to the offense, 2) the record

does not contain evidence of how the amount of attorney’s fees was calculated, and 3)
there is no evidence that he had the ability to pay the attorney’s fees. We reform the

judgment and, as reformed, affirm it.

       Sentence

       First, appellant argues that the 25-year sentence imposed on him is grossly

disproportionate to the offense of delivery of a very small amount of methamphetamine.

Yet, he did not so object to his sentence below. The failure to do so waives any error.

Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996); Jacoby v. State, 227

S.W.3d 128, 130 (Tex. App.–Houston [1st Dist.] 2006, pet. ref’d); Jacobs v. State, 80

S.W.3d 631, 632-33 (Tex. App.–Tyler 2002, no pet.).

       Even if not waived, we would compare the gravity of the current offense as well as

the gravity of the offenses underlying any prior convictions against the severity of the

sentence. McGruder v. Puckett, 954 F.2d 313, 316 (5th Cir. 1992); Winchester v. State,

246 S.W.3d 386, 389 (Tex. App.–Amarillo 2008, pet. ref’d). Appellant’s previous offenses

include burglary of a habitation, assault, burglary of a vehicle twice, evading detention,

possession of marijuana, unauthorized use of a motor vehicle, unauthorized absence from

a correction facility, failure to identify, and possession of a controlled substance. These

offenses occurred from 1997 through 2007. Appellant admitted at the punishment hearing

that he had used drugs for the last 16 or 17 years and had sold drugs on probably more

than a hundred occasions. Given these facts and the fact that the applicable range of

punishment was from five years to 99 years or life, we conclude that the decision to levy

only a 25-year sentence was not grossly disproportionate to the crime committed.

Appellant’s first issue is overruled.



                                            2
       Assessment of Attorney’s Fees

       Next, appellant argues that the trial court erred in ordering him to pay costs which

included attorney’s fees. This is so because nothing of record illustrates how the trial court

derived the amount of fees assessed. Nor does the record illustrate that appellant can pay

any fees. We sustain the issue.

       The trial court’s judgment merely stated that the State of Texas should “recover of

the defendant all costs in this proceeding incurred, as set in the Bill of Costs attached

hereto . . . .” The bill of costs shows attorney’s fees in the amount of $1,250 without any

explanation of how that sum was derived. Nor is there of record an itemized statement

from counsel illustrating the number of hours worked or what sum would constitute a

reasonable fee under the circumstances.

       Article 26.05 of the Code of Criminal Procedure provides:

              If the court determines that a defendant has financial resources that
              enable him to offset in part or in whole the costs of the legal services
              provided, including any expenses and costs, the court shall order the
              defendant to pay during the pendency of the charges or, if convicted,
              as court costs the amount that it finds the defendant is able to pay.

TEX . CODE CRIM . PROC . ANN . art. 26.05(g) (Vernon Supp. 2008). A fair and plain reading

of the statute leads us to conclude that there must be some factual basis illustrating not

only that the accused is capable of paying an attorney’s fee but also that he can pay the

fee levied. Yet, none is present in the record before us. Indeed, the only data touching

upon the topic appears to be the form appellant completed to secure a court-appointed

attorney, and that form showed him to be unemployed and living with a relative. Therefore,

no evidentiary basis exists supporting the trial court’s decision to levy any fees upon

appellant.

                                              3
        For these reasons, the judgment is reformed to delete the requirement that

appellant pay attorney’s fees.1 In all other respects, it is affirmed.



                                                          Brian Quinn
                                                          Chief Justice



Publish.




        1
         The State concedes that the appropriate rem edy would be to delete from the judgm ent the obligation
to pay an attorney’s fee.

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