Opinion filed March 8, 2018




                                          In The


          Eleventh Court of Appeals
                                      __________

                                No. 11-17-00011-CR
                                    __________

                    KASEY CRAIG MELTON, Appellant
                                             V.
                      THE STATE OF TEXAS, Appellee

                     On Appeal from the 132nd District Court
                             Scurry County, Texas
                          Trial Court Cause No. 9321

                      MEMORANDUM OPINION
      Appellant pleaded guilty to one count of the second-degree felony offense
of sexual assault of a child.1         The trial court deferred the adjudication of
Appellant’s guilt and placed him on community supervision2 for ten years. Later,
the State moved to revoke Appellant’s community supervision. At the hearing
on the motion to adjudicate, the trial court revoked Appellant’s community

      1
       TEX. PENAL CODE ANN. § 22.011(a)(2)(A) (West Supp. 2017).
      2
       TEX. CODE CRIM. PROC. ANN. art. 42A.101 (West Supp. 2017).
supervision and adjudicated him guilty of the offense of sexual assault of a child.
The trial court assessed punishment at confinement for fourteen years and
imposed court costs and attorney’s fees. The written judgment also includes
restitution. On appeal, Appellant presents three issues. We modify and affirm.3
                                         I. Evidence at Hearing
      The State alleged in its motion to adjudicate guilt that Appellant failed to
report to his probation officer numerous times, failed to make certain payments,
and failed to participate in therapy for sex offenders. Appellant pleaded “true” to
the State’s allegations. After the State adduced evidence in support of the
allegations, the trial court found the allegations to be “true.” In addition to the
sentence of confinement for fourteen years, the trial court orally pronounced court
costs of $60 and reimbursement of $550 to the county.4 In the trial court’s written
judgment, the $60 assessed at the hearing was reflected as “court costs,” and the
$550 assessed was reflected as “Ct. Appt. Attorney Fees.” The trial court’s
written judgment also recited that Appellant owed $3,750 in restitution. An
“Order to Withdraw Funds” was incorporated into the trial court’s judgment and
sought $4,360 in “[c]ourt costs, fees and/or fines and/or restitution” from
Appellant’s trust account at the Texas Department of Criminal Justice.
                                              II. Analysis
      In his first issue, Appellant argues that the trial court erred when it assessed
his punishment for a period in excess of the confinement set forth in the deferred
adjudication proceeding. In his second issue, Appellant argues that the trial court
erred when it assessed court-appointed attorney’s fees because he was previously


      3
          See TEX. R. APP. P. 43.2(b).
      4
          The trial court did not specify that the $550 was for reimbursement of attorney’s fees.

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determined to be indigent and there was no subsequent evidence or finding that
his indigent status had changed. In his third issue, Appellant argues that the
evidence is insufficient to establish the amount of restitution recited in the
judgment and in the order to withdraw funds.
      A. Issue One: Appellant did not object to the fourteen-year sentence
        in the trial court; therefore, he cannot complain about his sentence
        for the first time on appeal.
      Appellant argues that the punishment in the original judgment deferring the
adjudication of his guilt, which stated, in part, “Ten (10) years, Texas Department
of Criminal Justice, Institutional Division, probated ten (10) years,” limited and
capped the available sentencing range to ten years for his subsequent adjudication
of guilt. The State argues that the trial court was entitled to assess punishment
for any term of years specified by statute.
      To preserve an error for appellate review, a defendant must demonstrate
that (1) she made a timely and specific request, objection, or motion and (2) the
trial judge ruled on it. TEX. R. APP. P. 33.1; Geuder v. State, 115 S.W.3d 11, 13
(Tex. Crim. App. 2003). Appellant admits that no objection was made, but
nevertheless argues that he was not required to object because the error alleged
here is a “category two” right that is exempt from the preservation requirements
of Rule 33.1. See Grado v. State, 445 S.W.3d 736, 739 (Tex. Crim. App. 2014).
Category-two rights are “not forfeitable” and “[t]he trial judge has an independent
duty to implement these rights absent any request unless there is an effective
express waiver.” Id. In contrast, a category-three right is “‘forfeitable’ and must
be requested by the litigant.” Id.
      “As a general rule, an appellant may not assert error pertaining to his
sentence or punishment where he failed to object or otherwise raise such error in
the trial court.” Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986);
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see Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002) (no preservation of
error where appellant challenged the trial court’s “zero tolerance” probation for
the first time on appeal); Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App.
1999) (holding that the right to a separate punishment hearing after adjudication
of guilt is forfeitable); Burns v. State, No. 11-96-241-CR, 1997 WL 33797949, at
*1 (Tex. App.—Eastland Feb. 13, 1997, pet. ref’d) (not designated for
publication) (concluding appellant failed to preserve error where he argued his
sentence was cruel and unusual for the first time on appeal). Our sister courts,
in two unpublished opinions, have held that the right to complain about a trial
court’s sentence as exceeding the terms stated in a plea bargain is subject to the
preservation of error requirements of Rule 33.1. See Cotton v. State, No. 13-13-
00012-CR, 2014 WL 3724419, at *2 (Tex. App.—Corpus Christi July 24, 2014,
no pet.) (mem. op., not designated for publication); Gasper v. State, No. 07-99-
0408-CR, 2001 WL 929994, at *1 (Tex. App.—Amarillo Aug. 16, 2001, no pet.)
(not designated for publication). In addition, a sentencing issue may be preserved
“when the sentence is pronounced” or, “if the appellant did not have the
opportunity to object in the punishment hearing,” by a motion for new trial.
Burt v. State, 396 S.W.3d 574, 577 & n.4 (Tex. Crim. App. 2013).
        Appellant did not raise an objection when the trial court orally pronounced
his sentence, and if we assume, without deciding, that he did not have the
opportunity to object at sentencing, he nonetheless failed to file a motion for new
trial.5 Consequently, Appellant failed to preserve this issue for appeal. See Burt,
396 S.W.3d at 577; see also TEX. R. APP. P. 33.1.                       However, even if we are

        5
         Appellant argues that the alleged error in this case was not noticed within enough time for him to
file a motion for new trial. We disagree. The trial court orally pronounced the fourteen-year sentence in
the defendant’s presence on December 16. From that day, Appellant had thirty days to file his motion for
new trial. See TEX. R. APP. P. 21.4.

                                                    4
incorrect on the preservation of error issue, Appellant’s argument is unpersuasive
because the deferred adjudication was a completed transaction when that order
was entered. Ditto v. State, 988 S.W.2d 236, 238 (Tex. Crim. App. 1999).
Consequently, when the deferred adjudication community supervision was
revoked, the trial court could sentence Appellant within the full range of
punishment for the convicted offense. Id. at 239–40. We overrule Appellant’s first
issue.
         B. Issue Two: The trial court erred when it assessed attorney’s fees
            because there was no proof or finding that Appellant was no
            longer indigent.
         Appellant argues that the trial court erred when it assessed attorney’s fees
because he was previously determined to be indigent and there was no subsequent
evidence or finding that he was no longer indigent. We interpret this issue as a
sufficiency of the evidence challenge since Appellant argues there is “no
evidence” that his indigent status had changed or his financial situation had
improved. See Mayer v. State, 309 S.W.3d 552, 554 (Tex. Crim. App. 2010).
The State concedes that Appellant is correct.
         The record reflects that the trial court had found Appellant to be indigent
and appointed counsel to represent Appellant.          In accordance with Article
26.05(g) of the Texas Code of Criminal Procedure, a trial court has the authority
to order an indigent defendant to pay court-appointed attorney’s fees if the trial
court determines that the defendant has financial resources that enable him to
offset all or part of the costs of the legal services provided to the defendant. TEX.
CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2017). However, court-
appointed attorney’s fees cannot be assessed against a defendant who has been
determined to be indigent unless there is proof and a finding by the trial court that
the defendant is no longer indigent. Cates v. State, 402 S.W.3d 250, 251–52 (Tex.
                                           5
Crim. App. 2013); Mayer, 309 S.W.3d at 555–56; see CRIM. PROC. art. 26.04(p)
(“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 resources occurs.”).
       In this case, the trial court found Appellant indigent but nonetheless
required him to pay court-appointed attorney’s fees in the amount of $550—the
amount of attorney’s fees that corresponded to the amount approved by the trial
court for the revocation proceeding. However, the record contains no proof or
finding by the trial court that Appellant was no longer indigent. Therefore, the
trial court erred when it assessed $550 in court-appointed attorney’s fees against
Appellant.   The proper remedy is to modify the judgment to remove the
improperly assessed fees. Cates, 402 S.W.3d at 252; see Noonkester v. State,
No. 02-14-00147-CR, 2015 WL 831421, at *3 (Tex. App.—Fort Worth Feb. 26,
2015, no pet.) (mem. op., not designated for publication) (modifying the judgment
and an order to withdraw funds so as to remove improperly assessed attorney’s
fees). We sustain Appellant’s second issue.
      C. Issue Three: The $3,750 in restitution was not orally pronounced
         in Appellant’s presence; therefore, it could not be assessed in the
         written judgment.
      Appellant argues that the evidence is insufficient to prove that he owed
$3,750 in restitution. As we noted earlier, Appellant did not file a motion for new
trial, which ordinarily is a requirement to preserve this error. See Burt, 396
S.W.3d at 574; Idowu v. State, 73 S.W.3d 918, 923 (Tex. Crim. App. 2002).
However, although the State asserts that the restitution amount is supported by
evidence, it acknowledges that the trial court failed to orally pronounce restitution
as part of Appellant’s sentence. As a result, the State concedes that we should
modify the judgment. We agree.
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      A “sentence shall be pronounced in the defendant’s presence.” CRIM.
PROC. art. 42.03, § 1(a). “A trial court’s pronouncement of sentence is oral, while
the judgment, including the sentence assessed, is merely the written declaration
and embodiment of that oral pronouncement.” Alexander v. State, 301 S.W.3d
361, 363 (Tex. App.—Fort Worth 2009, no pet.). If an “oral pronouncement of
sentence and the written judgment differ, the oral pronouncement controls.”
Sauceda v. State, 309 S.W.3d 767, 769 (Tex. App.—Amarillo 2010, pet ref’d)
(citing Ex parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim. App. 2005); Aguilar v.
State, 279 S.W.3d 350, 354 (Tex. App.—Austin 2007, no pet.)). For an order of
restitution to be valid, it must be included in the oral pronouncement. Sauceda,
309 S.W.3d at 769; see Burt v. State, 445 S.W.3d 752, 759 (Tex. Crim. App.
2014); Alexander, 301 S.W.3d at 363–64.
      In this case, the trial court did not orally pronounce that Appellant was
required to pay $3,750 in restitution, nor was any restitution included in the
original judgment deferring the adjudication of Appellant’s guilt.         At the
conclusion of the adjudication hearing, the trial court stated, “There was no
presentation of any additional sums that were owed, although it’s obvious that the
Defendant didn’t pay,” and “I don’t have the totals, so I’m not assessing those.”
The $3,750 in restitution was then included in the written judgment for the first
time. Because the trial court omitted restitution when it orally pronounced
Appellant’s sentence, restitution could not be assessed in the written judgment.
The correct remedy is to modify the judgment to delete the order of restitution.
Sauceda, 309 S.W.3d at 769–70; see Creed v. State, No. 02-16-00046-CR, 2016
WL 4474360, at *2 (Tex. App.—Fort Worth Aug. 25, 2016, no pet.) (mem. op.,
not designated for publication) (modifying judgment of trial court to delete
improperly assessed restitution). We sustain Appellant’s third issue.
                                         7
                                       III. This Court’s Ruling
        We modify the judgment of the trial court to delete the court-appointed
attorney’s fees of $550 and the court-ordered restitution of $3,750. We reduce
the amount of the order to withdraw funds by $4,300, which is the sum of $550
and $3,750. As modified, we affirm the judgment of the trial court.




                                                           MIKE WILLSON
                                                           JUSTICE


March 8, 2018
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Willson, J.,
Bailey, J., and Wright, S.C.J.6




        6
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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