                                 NO. 07-09-0208-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                      PANEL D

                                   APRIL 5, 2010


                              DONOVAN H. SAUCEDA,
                                                               Appellant
                                          v.

                               THE STATE OF TEXAS,
                                                             APPELLANT
                         _____________________________

           FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

             NO. 2008-420,910; HONORABLE ABE LOPEZ, PRESIDING


                                      Opinion


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

      Appellant Donovan H. Sauceda was convicted of three counts of aggravated

robbery.   In challenging those convictions, he contends the trial court erred in 1)

requiring him to show his tattoos to the jury, 2) ordering restitution when it was not

pronounced as part of the sentence, there was no evidence to support the restitution

order, there was no reference to the victims’ names or addresses in the restitution

order, and the fees and expenses claimed were not shown to be related to the offense,

and 3) assessing payment of attorney’s fees without evidence that appellant has the
money to pay them and without evidence of how the fees were determined. We modify

in part and, as modified, affirm the judgment.


       Issue 1 – Tattoos

       In his first issue, appellant complains of the showing of the tattoos on his legs to

the jury.   He argues that his right against self-incrimination was violated by that

demonstration. The issue is overruled.


       At the time of his objection, the trial court queried as to whether the objection was

based on “Miranda, or self-incrimination questions.”        While counsel replied in the

affirmative, he went on to explain:


              And they’re doing it, in my opinion, in an effort to inflame the
              jury. They have pictures of these tattoos. I have seen the
              pictures. And assuming proper authenticity and predicate, I
              wouldn’t have an objection to those. But to ask my client to
              parade in front of the . . . jury and lift his pants leg to show
              the tattoos isn’t proper.


       The explanation of the objection does not appear to argue a violation of the right

against self-incrimination.    However, assuming that the objection was preserved,

appellant’s complaint still has no merit.


       It has been repeatedly held that the display of the defendant’s tattoos to the jury

is not a violation of the right against self-incrimination. Garza v. State, 213 S.W.3d 338,

347 (Tex. Crim. App. 2007); Canales v. State, 98 S.W.3d 690, 697 (Tex. Crim. App.

2003); Garcia v. State, 239 S.W.3d 862, 868 (Tex. App.–Houston [1st Dist.] 2007, pet.

ref’d), cert. denied, ___ U.S. ___, 129 S.Ct. 505, 172 L.Ed.2d 371 (2008). Here, one of


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the victims had previously testified that he observed unique tattoos (i.e. a name) on the

legs of one of the robbers, and he described those tattoos.           Because appellant’s

defense was an attempt to show that the victims were mistaken as to his identity, the

evidence was relevant to that issue. And, that the tattoo may have been of his name

matters little. It is no less an identifying marker than the color of a person’s eyes, the

sound of his voice, or the color of his hair. More importantly, those are things that the

accused can be compelled to disclose to the jury. Olson v. State, 484 S.W.2d 756, 763

(Tex. Crim. App. 1969); Whitlock v. State, 170 Tex. Crim. 153, 338 S.W.2d 771, 723

(1960).


       Next, and to the extent that appellant attempts to distinguish the situation before

us by characterizing the tattoo as communication, that too is of no consequence. Body

art consisting of dragons, skulls, symbols, flowers, or the like are also communicative in

nature. They too convey a message of some idea, belief, or expression selected by the

person wearing it.    But, in each case the message is pre-existing and unlikely to

incriminate in the same sense as compelling a confession. And, until the right against

self-incrimination is said to insulate a defendant from showing the color of his eyes,

providing a writing sample, or even displaying tattoos in general, it did not prevent the

trial court from requiring appellant to raise a pant leg to show the jury the name

stenciled on his leg. Simply put, the trial court did not abuse its discretion. See Klein v.

State, 273 S.W.3d 297, 304-05 (Tex. Crim. App. 2008) (stating that the trial court’s

evidentiary rulings are reviewed for abuse of discretion).




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        Issues 2-8 – Restitution Order

        Appellant next complains of the trial court’s judgment which orders restitution in

the amount of $1697.85. First, he notes that no order of restitution was rendered at

sentencing.


        When the oral pronouncement of sentence and the written judgment differ, the

oral pronouncement controls. 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.). An

order of restitution must be included in the oral pronouncement to be valid. Alexander

v. State, 301 S.W.3d 361 (Tex. App.–Fort Worth 2009, no pet.); Weir v. State, 252

S.W.3d 85, 88 (Tex. App.–Austin 2008), rev’d in part on other grounds, 278 S.W.3d 364

(Tex. Crim. App. 2009); but see Manning v. State, No. 05-06-0422-CR, 2007 Tex. App.

LEXIS 5733 at *3 (Tex. App.–Dallas July 20, 2007, no pet.) (not designated for

publication) (holding that restitution is not part of the sentence and does not have to be

orally pronounced).         Indeed, restitution has been deemed to be an aspect of

punishment by our Court of Criminal Appeals, Ex parte Cavazos, 203 S.W.3d 333, 338

(Tex. Crim. App. 2006), and sentencing undoubtedly encompasses the measure of

punishment to be levied in a particular case. So, we see no legitimate basis to exclude

it from the requirement that sentence be orally pronounced in open court.


        Because the trial court omitted it when it orally pronounced sentence, restitution

could not be assessed in the written judgment. That being so, the proper remedy is to

modify the judgment to delete the order of restitution.1 Alexander v. State, supra; Weir

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        The State argues that the appropriate remedy is to remand the matter to the trial court for a
hearing with respect to restitution. This might be true if the only problem with the restitution order was
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v. State, supra. And, our disposition of this matter precludes the necessity to address

appellant’s other objections with respect to restitution or rule on appellant’s motion to

strike from the clerk’s record certain documents detailing loss or damage.


        Issues 9 and 10 - Attorney’s Fees

        Finally, appellant contends that he may not be required to pay attorney’s fees

without evidence he is able to pay them and without evidence of how the amount of the

court-appointed fee was determined. We agree.


        The trial court may order a defendant to pay court-appointed attorney’s fees if it

determines that a defendant has financial resources that enable him to offset in part or

in whole the costs of the services provided. TEX. CODE CRIM. PROC. ANN. art. 26.05(g)

(Vernon Supp. 2009). The defendant’s financial resources and ability to pay are critical

elements in the trial court’s determination. Mayer v. State, No. PD-0069-09, 2010 Tex.

App. LEXIS 100 at *11 (Tex. Crim. App. March 24, 2010). A review of the record shows

that appellant was appointed counsel both for trial and on appeal.                        A defendant

determined to be indigent is presumed to remain indigent for the remainder of the

proceedings unless a material change in his finances occurs. Id. at *14-15; TEX. CODE

CRIM. PROC. ANN. art. 26.04(p) (Vernon Supp. 2009). We find no evidence in the record

from which the trial court could have concluded that appellant had the ability to pay his

attorney’s fees. Therefore, we sustain appellant’s issue.



that there was no evidence to support the amount. See Barton v. State, 21 S.W.3d 287, 290 (Tex. Crim.
App. 2000). However, the requirement of restitution in this instance is a provision of punishment and part
of the sentence, and it must therefore be included in the pronouncement of the sentence to be included in
the judgment. Alexander v. State, 301 S.W.3d 361 (Tex. App.–Fort Worth 2009, no pet.).


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      Accordingly, we modify the judgment to delete the portion requiring restitution

and the payment of attorney’s fees. In all other respects, the judgment is affirmed.




                                                       Brian Quinn
                                                       Chief Justice


Publish.




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