                                 NO. 07-09-00356-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL D

                                   AUGUST 31, 2010


                      KIMBERLY YVETTE GARCIA, APPELLANT

                                           v.

                         THE STATE OF TEXAS, APPELLEE


               FROM THE 64TH DISTRICT COURT OF HALE COUNTY;

         NO. A17430-0711; HONORABLE ROBERT W. KINKAID JR., JUDGE


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


                              MEMORANDUM OPINION

      Appellant Kimberly Yvette Garcia appeals from the trial court’s revocation of her

deferred adjudication community supervision, finding her guilty of forgery of a financial

instrument and sentencing her to eighteen months in a state jail facility. Through one

issue, appellant contends the judgment adjudicating guilt does not conform to the oral

pronouncement of appellant’s sentence and the written judgment should be reformed.

We will modify the judgment and affirm it as modified.
                                      Background


      In March 2008, appellant plead guilty to forgery of a financial instrument.

Consistent with her plea agreement, the court deferred a finding of guilt and placed

appellant on community supervision. Appellant’s deferred adjudication was conditioned

on her compliance with specified terms and conditions. The State filed a motion to

proceed to an adjudication of guilt in September 2008. The court heard the motion and

continued appellant’s community supervision with additional terms.


      In 2009, the State filed another motion to proceed to an adjudication of guilt. At

the hearing on this motion, appellant plead “true” to each of the State’s allegations and

entered a written stipulation of the evidence. She also testified to several reasons why

she did not comply with the terms of her community supervision.          Her community

supervision officer also testified, outlining her failures to comply. Based on appellant’s

plea of “true” and the testimony presented, the trial court revoked appellant’s community

supervision, entered a finding of guilt and sentenced appellant to eighteen months of

confinement in a state jail facility. The court also imposed court costs of $281.00,

restitution in the amount of $253.46 and attorney’s fees in the amount of $800.00. This

appeal followed.


                                        Analysis


      At the conclusion of the hearing, the trial court orally pronounced sentence

against appellant. No fine was imposed. However, the written judgment includes a

figure of $1334.46, handwritten next to the field for a fine in the summary portion of the


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judgment.1 The judgment also includes language ordering appellant “to pay all fines . . .

as indicated above.” Appellant argues the judgment should be reformed to reflect the

trial court’s oral pronouncement of sentence. We agree.


      A fine is part of the sentence and must be included in the oral pronouncement of

the sentence. See Tex. Code Crim. Proc. Ann. art. 42.03, §1(a) (Vernon 2009); see

also Weir v. State, 278 S.W.3d 364 (Tex.Crim.App. 2009). Generally, when the oral

pronouncement of sentence in open court and the written judgment conflict, the oral

pronouncement controls. Thompson v. State, 108 S.W.3d 287, 290 (Tex.Crim.App.

2003); see Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004) (applying

Thompson in a deferred adjudication case). See also Coffey v. State, 979 S.W.2d 326,

328 (Tex.Crim.App. 1998). "The solution in those cases in which the oral

pronouncement and the written judgment conflict is to reform the written judgment to

conform to the sentence that was orally pronounced." Thompson, 108 S.W.3d at 290;

see Tex. R. App. P. 43.2(b).


      Appellate courts have the authority to modify incorrect judgments when the

necessary data and information to do so are available. See Tex. R. App. P. 43.2(b);

Bigley v. State, 865 S.W.2d 26, 27 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d

526, 529 (Tex.App.--Dallas 1991, pet. ref'd). The record of this cause provides the

information necessary to reform the judgment. Accordingly, to make it consistent with

      1
           The judgment also includes a typewritten “$N/A” notation in that field. The State
contends the handwritten amount is likely a clerical notation made after the judgment
was filed to show the total amount of the restitution, court costs and attorney’s fees.
The State agrees, however, that the trial court imposed no fine in this case, agrees such
notations should not be made on the face of the judgment and agrees reformation to
remove the figure is appropriate. 
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the trial court's oral pronouncement, we modify the court’s written judgment to delete

any order that appellant pay a fine.


       We note also an issue not raised by appellant regarding the assessment of

attorney’s fees against appellant.2 In order to assess attorney's fees, the trial court

must first determine that the defendant has financial resources that enable her to offset

in part or in whole the cost of the legal services provided. Tex. Code Crim. Proc. Ann.

art. 26.05(g) (Vernon 2009). And 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.) (per curiam); Perez v.

State, 280 S.W.3d 886, 887 (Tex. App--Amarillo 2009, no pet.).


       The written judgment here contains the trial court’s order that appellant pay

$800.00 in attorney’s fees. The clerk’s record reflects, however, the trial court found

appellant indigent and unable to afford the cost of legal representation in November

2007, October 2008 and September 2009 and again on appeal in October 2009. It

does not appear the trial court made a determination appellant had financial resources

enabling her to pay all or any part of the fees paid her court-appointed counsel, and we


       2
             Courts of appeals may review unassigned error in criminal cases, particularly
when the appellate court’s review 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.). Here, we take judicial notice that there is pending before us appellant’s
appeal of the judgment in a companion case, signed at the same time and at the same
hearing as the judgment here appealed, and further take judicial notice that appellant’s
counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396,
18 L.Ed.2d 493 (1967) in that companion case. Garcia v. State, No. 07-09-0357-CR.
Because of these peculiar procedural circumstances, we conclude the interest of justice
requires our consideration of the trial court’s order that appellant pay attorney’s fees,
though the order is not assigned as error. 
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are unable to see any evidence to support such a determination. We conclude the

order to pay attorney’s fees was improper because the evidence was legally insufficient

to support a finding appellant had the financial resources to pay attorney’s fees. See

Mayer v. State, 309 S.W.3d 552 (Tex.Crim.App. 2010). Accordingly, we modify the

judgment to delete also the order to pay attorney’s fees. Id.; see also Anderson v.

State, No. 03-09-00630-CR, 2010 Tex.App. LEXIS 5033, *9 (Tex.App-Austin, July 1,

2010, no pet.) (also modifying judgment to delete order to pay attorney’s fees).


      Having modified the trial court’s judgment to delete the orders appellant pay a

fine and pay $800 attorney’s fees, we affirm the judgment as modified.




                                                       James T. Campbell
                                                            Justice


Do not publish.




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