                                         NO. 07-11-0492-CR

                                  IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                            AT AMARILLO

                                               PANEL C

                                            JULY 11, 2012

                              ______________________________


                            JOE STEVEN MONTOYA, APPELLANT

                                                   V.

                              THE STATE OF TEXAS, APPELLEE


                            _________________________________

               FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

                   NO. 61,359-D; HONORABLE DON EMERSON, JUDGE

                             _______________________________

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


                                    MEMORANDUM OPINION


        In 2010, pursuant to a plea bargain, Appellant, Joe Steven Montoya, entered a

plea of guilty to the offense of aggravated assault with a deadly weapon, enhanced.1

He was placed on deferred adjudication community supervision for six years and

assessed a $500 fine. On May 5, 2011, the State filed a motion to proceed with an

1
 This offense is a second degree felony, Tex. Penal Code Ann. § 22.02(a) (2) (West 2011), enhanced by
a prior felony conviction, making it punishable as a first degree felony. Tex. Penal Code Ann. ' 12.42(b)
(West 2011),
adjudication of guilt alleging that Appellant had violated four of the terms and conditions

of his community supervision.             Following a hearing on the State's motion at which

Appellant entered pleas of not true to each allegation, the trial court found he violated

the terms and conditions of community supervision, adjudicated him guilty of the

charged offense, and assessed his sentence at eight years confinement. In presenting

this appeal, counsel has filed an Anders2 brief in support of a motion to withdraw. We

grant counsel=s motion and affirm the judgment as reformed and modified.


        In support of his motion to withdraw, counsel certifies he has conducted a

conscientious examination of the record and, in his opinion, the record reflects no

potentially plausible basis to support an appeal. Anders v. California, 386 U.S. 738,

744-45, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); In re Schulman, 252 S.W.3d 403, 406

(Tex.Crim.App. 2008).            Counsel candidly discusses why, under the controlling

authorities, the appeal is frivolous.              See High v. State, 573 S.W.2d 807, 813

(Tex.Crim.App. 1978).           Counsel has demonstrated that he has complied with the

requirements of Anders and In re Schulman by (1) providing a copy of the brief to

Appellant, (2) notifying him of his right to file a pro se response if he desired to do so,

and (3) informing him of his right to file a pro se petition for discretionary review. In re

Schulman, 252 S.W.3d at 408.3 By letter, this Court granted Appellant an opportunity to

2
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
3
 Notwithstanding that Appellant was informed of his right to file a pro se petition for discretionary review
upon execution of the Trial Court=s Certification of Defendant=s Right of Appeal, counsel must comply with
Rule 48.4 of the Texas Rules of Appellate Procedure which provides that counsel shall within five days
after this opinion is handed down, send Appellant a copy of the opinion and judgment together with
notification of his right to file a pro se petition for discretionary review. In re Schulman, 252 S.W.3d at 408
n.22 & at 411 n.35.

                                                      2
exercise his right to file a response to counsel=s brief, should he be so inclined. Id. at

409 n.23. Appellant did not file a response. Neither did the State favor us with a brief.


       By the Anders brief, counsel raises two arguable issues, to-wit: (1) the evidence

was legally insufficient to support a finding of true to the State's allegations and (2) the

punishment was excessive. Counsel then analyzes the issues and concludes there is

no reversible error in the record.


                     DECISION TO ADJUDICATE--STANDARD OF REVIEW


       An appeal from a trial court's order adjudicating guilt is reviewed in the same

manner as a revocation hearing. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b)

(West Supp. 2011). When reviewing an order revoking community supervision imposed

under an order of deferred adjudication, the sole question before this Court is whether

the trial court abused its discretion.       Rickels v. State, 202 S.W.3d 759, 763

(Tex.Crim.App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984);

Jackson v. State, 645 S.W.2d 303, 305 (Tex.Crim.App. 1983).               In a revocation

proceeding, the State must prove by a preponderance of the evidence that the

probationer violated a condition of community supervision as alleged in the motion.

Cobb v. State, 851 S.W.2d 871, 874 (Tex.Crim.App. 1993). If the State fails to meet its

burden of proof, the trial court abuses its discretion in revoking community supervision.

Cardona, 665 S.W.2d at 494. In determining the sufficiency of the evidence to sustain a

revocation, we view the evidence in the light most favorable to the trial court's ruling.

Jones v. State, 589 S.W.2d 419, 421 (Tex.Crim.App. 1979).

                                             3
       Here, the record shows that Appellant was indicted in April 2010 for two-counts

of aggravated assault. The aggravating factor alleged in each count was the use or

exhibition of a "deadly weapon, to-wit: a screwdriver, that in the manner and means of

its use and intended use was capable of causing death or serious bodily injury, during

the commission of the assault." Each charge was also enhanced by a prior felony

conviction. On September 7, 2010, Appellant was granted deferred adjudication.


       On December 15, 2010, a complaint was filed against him for an assault alleged

to have been committed on October 29, 2010. Pursuant to a plea bargain in that case,

Appellant was convicted and sentenced to 180 days confinement in the Potter County

Jail. Based in part upon this subsequent assault, the State filed a motion to revoke his

deferred adjudication.


       At the revocation hearing, the State introduced a certified copy of the judgment

demonstrating that Appellant pleaded guilty to, and was convicted of, the assault

committed in October 2010, thereby violating the first condition of his community

supervision.   Based upon this evidence alone, we conclude the State proved by a

preponderance of the evidence that Appellant violated the terms and conditions of his

deferred adjudication community supervision and the trial court did not abuse its

discretion in adjudicating him guilty of the original offense.


       Additionally, we have independently examined the entire record to determine

whether there are any non-frivolous issues which might support the appeal.         See

Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988); In re Schulman,

                                              4
252 S.W.3d at 409; Stafford v. State, 813 S.W.2d 503, 511 (Tex.Crim.App. 1991). We

have found no such issues. See Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App.

1969). After reviewing the record and counsel=s brief, we agree with counsel that there

are no plausible grounds for appeal.              See Bledsoe v. State, 178 S.W.3d                824

(Tex.Crim.App. 2005).


                             COURT-APPOINTED ATTORNEY'S FEES


       Once a criminal defendant has been found to be indigent, he is presumed to

remain indigent for the remainder of the proceedings unless a material change in a

defendant's financial resources occurs. See Tex. Code Crim. Proc. Ann. art. 26.04(p)

(West Supp. 2011). Furthermore, it is well established that in order to assess attorney's

fees in a judgment, order revoking community supervision, or order adjudicating guilt, a

trial court must determine that the defendant has the financial resources that enable him

to offset in part or in whole the costs of legal services provided. See Tex. Code Crim.

Proc. Ann. art. 26.05(g) (West Supp. 2011).4 See also Mayer v. State, 309 S.W.3d 552,

555-56 (Tex.Crim.App. 2010). Additionally, the record must reflect some factual basis

to support the trial court's determination. See 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.).


       This Court recently concluded in Wolfe v. State, No. 07-10-0201-CR, 2012 Tex.

App. LEXIS 5368, at *10-11 (Tex.App.--Amarillo July 6, 2012, no pet. h.), that the

evidence was insufficient to support the trial court's assessment of attorney's fees as
4
All article references herein to the Texas Code of Criminal Procedure Annotated are to West Supp. 2011.
                                                    5
court costs, even though payment of those fees had been a condition of appellant's

community supervision. See also Armstrong v. State, No. 07-09-0091-CR, 2011 Tex.

App. LEXIS 6637, at *3 (Tex.App.--Amarillo Aug. 17, 2011, no pet.) (not designated for

publication) (modifying the trial court's judgment to delete the assessment of attorney's

fees due to insufficient evidence without making any distinction between attorney's fees

the defendant agreed to pay as a condition of his community supervision and additional

attorney’s fees assessed at adjudication).


      Here, the clerk's record reflects the trial court appointed counsel to represent

Appellant during the phase in which he was granted deferred adjudication, again at the

adjudication of guilt phase, and again to pursue this appeal. Thus, because the record

demonstrates that Appellant was indigent immediately prior to each time attorney's fees

were awarded, we presume he remained indigent at the time of each award. The

clerk's record also contains two Attorney Fee Vouchers, each authorizing payment of

$1,000 as compensation for court-appointed counsel. Furthermore, the Bill of Costs

attached to the Judgment Adjudicating Guilt reflects: "Attorney Fees (Court Appointed)

$2,000.00." Because there is no evidence in the record of a change in Appellant's

financial resources that would enable him to offset in part or in whole the costs of legal

services provided, we conclude the Judgment Adjudicating Guilt which orders him to

pay court-appointed attorney's fees "as per the attached Bill of Costs" is improper.


      Because no objection is required to challenge the sufficiency of the evidence

regarding a defendant's ability to pay, Mayer, 309 S.W.3d at 555-56, and there is no


                                             6
evidence to support the order for Appellant to pay attorney's fees, the proper remedy is

to delete that order.


                              REFORMATION OF JUDGMENT


       In reviewing the record, it has come to this Court's attention that the Judgment

Adjudicating Guilt contained in the clerk's record includes clerical errors. The summary

portion of the judgment, under the heading Plea to Motion to Adjudicate, reflects that

Appellant entered a plea of "TRUE" to the allegations in the motion, when the reporter's

record reveals he entered pleas of "not true" to each allegation. Additionally, under the

heading Findings on Deadly Weapon, the judgment reflects: "N/A", whereas the

reporter's record reflects that the court adjudicated him guilty of "aggravated assault

with a deadly weapon."


       This Court has the power to modify the judgment of the court below to make the

record speak the truth when we have the necessary information to do so. Tex. R. App.

P. 43.2(b). Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993). Appellate

courts have the power to reform whatever the trial court could have corrected by a

judgment nunc pro tunc where the evidence necessary to correct the judgment appears

in the record. Ashberry v. State, 813 S.W.2d 526, 529 (Tex.App.--Dallas 1991, pet.

ref'd). The power to reform a judgment is "not dependent upon the request of any party,

nor does it turn on the question of whether a party has or has not objected in the trial

court." Id. at 529-30.



                                           7
      Accordingly, we reform the Judgment Adjudicating Guilt to reflect "NOT TRUE"

under Plea to Motion to Adjudicate and "YES, NOT A FIREARM" under Findings on

Deadly Weapon.


                                     CONCLUSION


      The Judgment Adjudicating Guilt is reformed to reflect a plea of "NOT TRUE"

under Plea to Motion to Adjudicate and "YES, NOT A FIREARM" under Findings on

Deadly Weapon. Additionally, the judgment is modified to add the following provision at

page 2 beneath the heading "Furthermore, the following special findings or orders

apply": "As used herein the term 'court costs' does not include court-appointed

attorney's fees." As reformed and modified, the judgment is affirmed and counsel's

motion to withdraw is granted.


                                              Patrick A. Pirtle
                                                  Justice


Do not publish.




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