      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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                               ON MOTION FOR REHEARING
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                                      NO. 03-11-00106-CR
                                      NO. 03-11-00107-CR



                                Ex parte Russell Dale Mortland


     FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
 NOS. CR-05-0582-C & CR-05-583-C, HONORABLE WILLIAM HENRY, JUDGE PRESIDING



                            MEMORANDUM OPINION


               We withdraw our opinion and judgments dated August 11, 2011, and substitute the

following opinion and judgments in their place.

               Russell Dale Mortland appeals orders denying relief in these article 11.072

post-conviction habeas corpus proceedings. See Tex. Code Crim. Proc. Ann. art. 11.072 (West

2005). We affirm the trial court’s orders.

               On November 29, 2007, Mortland was convicted of retaliation (cause number

CR-05-0583) and three counts of fraudulently filing a financing statement (cause

number CR-05-0582). He was sentenced to ten years’ imprisonment for the retaliation and

twenty-four months in state jail for each of the fraud counts. Imposition of sentence was suspended

in both causes, and Mortland was placed on community supervision. On appeal, this Court reversed

the conviction on the third fraud count and ordered that count dismissed; the other convictions were
affirmed. Mortland v. State, Nos. 03-08-00029-CR & 03-08-00030-CR, 2008 WL 5423167, at *2

(Tex. App.—Austin Dec. 30, 2008, pet. ref’d) (mem. op., not designated for publication).

               In his writ applications, Mortland contends that the evidence does not support the

district court’s order that he pay $450 in each cause to reimburse the attorney appointed as

standby counsel at Mortland’s trial, where he chose to represent himself. See Mayer v. State,

309 S.W.3d 552, 556 (Tex. Crim. App. 2010). While the district court judgments do not order the

payment of attorney’s fees, Mortland has provided copies of documents entitled Conditions of

Community Supervision. These documents were signed by the community supervision officer, the

trial court judge, and Mortland in each cause and reflect that the supervision conditions enumerated

in the documents were imposed on December 2, 2009. The complained-of payment of attorney’s

fees is listed as a condition of community supervision in each of these documents.

               However, section 3(b) of Article 11.072 requires an applicant seeking to challenge

a particular condition of community supervision, but not the legality of the conviction for which

community supervision was imposed, to first attempt to gain relief by filing a motion to amend the

conditions of community supervision. See Tex. Code Crim. Proc. Ann. art. 11.072, § 3(b). Nothing

in the record indicates that Mortland first raised his challenge to the condition requiring payment

of attorney’s fees in a motion to amend the conditions of his community supervision as required by

the statute.

               The trial court’s orders denying relief are affirmed.




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                                            __________________________________________
                                            Melissa Goodwin, Justice

Before Justices Puryear, Rose and Goodwin

Affirmed on Motion for Rehearing

Filed: April 27, 2012

Do Not Publish




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