                                        NO. 12-18-00343-CR

                              IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                           TYLER, TEXAS

 JERRY ANDREA PRUITT,                                      §       APPEAL FROM THE 2ND
 APPELLANT

 V.                                                        §       JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                                  §       CHEROKEE COUNTY, TEXAS

                                       MEMORANDUM OPINION
        Jerry Pruitt appeals his conviction for possession with intent to deliver. In two issues,
Appellant contends the judgment should be reformed to delete the restitution and attorney’s fees
awards. We modify the trial court’s judgment and affirm as modified.


                                                 BACKGROUND
        Appellant was charged by indictment with possession of four or more but less than 200
grams of methamphetamine, with intent to deliver.                  Appellant pleaded “guilty” without an
agreement as to punishment. The trial court sentenced Appellant to fifteen years imprisonment,
ordered him to pay $1,800 in attorney’s fees for his court-appointed counsel, and further ordered
him to pay $180.00 in restitution to the Texas Department of Public Safety (DPS) Crime
Laboratory. This appeal followed.


                                         RESTITUTION ASSESSMENT
        In his first issue, Appellant contends the written judgment’s award of restitution should be
deleted because it was not included in the trial court’s oral pronouncement. 1

        1
            The parties do not address preservation; however, preservation of error is a systemic requirement that a
first-level appellate court should review on its own motion. See Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App.
2009). We conclude that Appellant’s complaints are preserved for our review, as he had no opportunity to object
        An appellate court reviews a challenge to a restitution order under an abuse of discretion
standard. Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. [Panel Op.] 1980). Due
process is implicated when the trial court abuses its discretion in setting the amount of restitution.
See id. There must be sufficient evidence in the record to support a trial court’s restitution order,
and the defendant is not required to object to preserve an evidentiary sufficiency challenge
concerning the order. See Mayer v. State, 309 S.W.3d 552, 555 (Tex. Crim. App. 2010). Due
process places the following limitations on the restitution a trial court may order: (1) the restitution
must be for injuries or damages for which the defendant is criminally responsible, (2) the restitution
must be directed to the victim or victims of the offense, and (3) the restitution amount must be just
and supported by a factual basis in the record. Burt v. State, 445 S.W.3d 752, 758 (Tex. Crim.
App. 2014).
        It is well-settled that when there is a conflict between the oral pronouncement of sentence
in open court and the sentence set out in the written judgment, the oral pronouncement controls.
Id. at 757; Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004); Thompson v. State, 108
S.W.3d 287, 290 (Tex. Crim. App. 2003). The solution in such a situation is to reform the written
judgment to conform to the trial court’s oral pronouncement. Thompson, 108 S.W.3d at 290.
        The record indicates that the trial court orally pronounced Appellant’s sentence following
a hearing, evidence, and testimony. Specifically, the trial court stated:


        I’m going to sentence you to 15 years confinement in TDC. I remand you into the custody of the
        Cherokee County sheriff for you to complete your sentence. I’ll give you credit for the time you’ve
        served.


At no time did the trial court mention ordering that Appellant pay restitution.
        However, the trial court’s written judgment includes $180.00 in restitution payable to the
DPS Crime Lab. The State contends that the plea recommendation included the restitution, which
put Appellant on notice of the award. We disagree. The term “open plea” acknowledges that the
guilty plea is open to sentencing implications. State v. Moore, 240 S.W.3d 248, 254 (Tex. Crim.
App. 2007); Sieloff v. State, No. 05-14-01300-CR, 2015 WL 4600471, at *2 (Tex. App.—Dallas
July 31, 2015, no pet.) (mem. op., not designated for publication). Therefore, it is axiomatic that



before the restitution award was included in the written judgment. See Landers v. State, 402 S.W.3d 252, 255 (Tex.
Crim. App. 2013).


                                                        2
the trial court was free to impose any sentence within the punishment range, including restitution,
regardless of the plea recommendation. At no time during the sentencing did the trial court make
any statements to indicate that restitution might be awarded. Not until the award first appeared in
the written judgment was Appellant placed on notice that his sentence would include restitution.
       Because the sentences conflict, the oral pronouncement controls and there is no oral
pronouncement of restitution. See Burt, 445 S.W.3d at 757. Therefore, we sustain Appellant’s
first issue and modify the judgment to delete the $180 restitution award. See Sandlin v. State, No.
09-14-00539-CR, 2015 WL 6998594, at *1-2 (Tex. App.—Beaumont Nov. 12, 2015, no pet.)
(mem. op., not designated for publication) (deleting restitution award where trial court did not
orally pronounce an award of restitution at sentencing hearing).


                                    ATTORNEY’S FEES AWARD
       In his second issue, Appellant contends the trial court’s written judgment should be
modified to delete the attorney’s fees award because he is indigent.
       Article 26.05(g) of the Texas Code of Criminal Procedure provides trial courts with
discretionary authority to order reimbursement of appointed attorney’s fees when the “defendant
has financial resources that enable him to offset in part or in whole the costs of the legal services
provided[.]” TEX. CODE CRIM. PROC. ANN. art 26.05(g) (West Supp. 2018). The Texas Court of
Criminal Appeals has addressed whether a record contained sufficient evidence to show that a trial
court made a sufficient inquiry before requiring the defendant to pay court-appointed-attorney’s
fees. Mayer, 309 S.W.3d at 556. The Court affirmed a judgment by the Amarillo Court of
Appeals, which had determined that a trial court erred in awarding attorney’s fees under Article
26.05(g) “in the absence of ‘evidence to demonstrate appellant’s financial resources to offset the
costs of the legal services[.]’” Id. at 553, 558 (quoting Mayer v. State, 274 S.W.3d 898, 901 (Tex.
App.—Amarillo 2008), aff’d, 309 S.W.3d 552 (Tex. Crim. App. 2010)). The Court of Criminal
Appeals specifically noted that under Article 26.04(p) of the Texas Code of Criminal Procedure,
“‘[a] defendant who is determined by the court to be indigent is presumed to remain indigent for
the remainder of the proceedings in the case unless a material change in the defendant’s financial
circumstances occurs.’” Id. at 557 (quoting TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West
Supp. 2018)).




                                                 3
         Here, the trial court determined Appellant was indigent when it initially appointed him
counsel and again when it appointed counsel to represent him in this appeal. At the sentencing
hearing, no evidence was presented that Appellant’s financial circumstances had materially
changed. Accordingly, based on this record, there was no evidence to show that Appellant’s
finances had undergone a “material change.” See Mayer, 309 S.W.3d at 557; see also TEX. CODE
CRIM. PROC. ANN. art. 26.04(p). Therefore, no evidence supports the trial court’s judgment
requiring Appellant to pay his attorney’s fees. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g); see
also Sandlin, 2015 WL 6998594, at *1 (“Absent a change in a defendant’s status as an indigent, a
trial court is not authorized to impose an award of attorney’s fees in the judgment against a
defendant who remains indigent when the judgment is pronounced”); Barrera v. State, 291 S.W.3d
515, 518 (Tex. App.—Amarillo 2009, no pet.) (“There must be some factual basis in the record
illustrating that an accused is capable of paying a legal fee levied under art. 26.05(g) of the Code
of Criminal Procedure.”). We sustain Appellant’s second issue and modify the judgment to delete
the $1,800.00 attorney’s fees award.


                                                  DISPOSITION
         Having sustained Appellant’s first and second issues, we modify the judgment to delete the
restitution award of $180 and the attorney’s fees award of $1,800. We affirm the judgment as
modified.
                                                                 BRIAN HOYLE
                                                                    Justice



Opinion delivered September 4, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




                                                          4
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                         SEPTEMBER 4, 2019


                                         NO. 12-18-00343-CR


                                     JERRY ANDREA PRUITT,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                  Appeal from the 2nd District Court
                           of Cherokee County, Texas (Tr.Ct.No. 20724)

                       THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein, and the same being inspected, it is the opinion of the Court that the judgment of the
trial court below should be modified and, as modified, affirmed.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be modified to delete the restitution award of $180 and the attorney’s fees
award of $1,800; and as modified, the trial court’s judgment is affirmed; and that this decision
be certified to the trial court below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
