                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                  ________________________

                                       No. 07-12-00155-CR
                                  ________________________

                              MAYRA SOTO GINES, APPELLANT

                                                   V.

                              THE STATE OF TEXAS, APPELLEE



                             On Appeal from the 320th District Court
                                      Potter County, Texas
                  Trial Court No. 62,477-D; Honorable Don Emerson, Presiding


                                          August 15, 2013

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


        Appellant, Mayra Soto Gines, pled guilty in open court to possession with the

intent to deliver a Penalty Group 1 controlled substance, methamphetamine, in an

amount of two hundred grams or more but less than four hundred grams, 1 in a drug-free



1
 TEX. HEALTH & SAFETY CODE ANN. § 481.112(e) (W EST 2010). An offense under the section is punishable
by imprisonment for life or for a term of not more than 99 years or less than 10 years, and a fine not to
exceed $100,000.
zone, 2 while using or exhibiting a deadly weapon, 3 and was sentenced to fifteen years

confinement. She asserts (1) her counsel was ineffective; (2) the trial court erred by

including a deadly weapon finding in its judgment; and (3) there was insufficient

evidence to require Appellant to pay court-appointed attorney’s fees. We modify the

trial court’s judgment to delete the order that Appellant pay $200 in court-appointed

attorney’s fees and affirm as modified.


                                          Background


        In June 2011, Appellant was indicted for knowingly possessing with the intent to

deliver methamphetamine in an amount of two hundred grams or more but less than

four hundred grams on or about October 7, 2010. The indictment also alleged the

offense was committed in a drug-free zone and Appellant used or exhibited a deadly

weapon—a firearm.


        In March 2012, Appellant entered an open plea of guilty to the offense alleged in

the indictment. In her Written Plea Admonishments, she confessed her guilt to every

allegation in the indictment and the trial court found Appellant’s Judicial Confession was

true.   After the parties indicated there was nothing further in the guilt/innocence

proceeding, the trial court found Appellant guilty of the offense alleged in the indictment.


        During the punishment proceeding, two officers testified that, on October 7, 2010,

they executed a search warrant at Appellant’s residence.                   In a safe located in


2
 TEX. HEALTH & SAFETY CODE ANN. § 481.134(c) (W EST SUPP. 2012). If it is shown that an offense under
section 481.112(e) was committed in a drug-free zone, the minimum term of confinement is increased by
five years.
3
TEXAS PENAL CODE ANN. § 1.07(17) (W EST SUPP. 2012).

                                                 2
Appellant’s bedroom, the officers found twelve ounces of methamphetamine and a

loaded handgun. Another officer testified he found more methamphetamine in the living

room. Appellant testified that, during the search, she confessed to selling drugs in a

drug-free zone and a deadly weapon was in her safe. She also testified she understood

the handgun next to the drugs in the safe was part of the offense. Thereafter, she

asked the trial judge to place her on deferred adjudication community supervision and

testified to mitigating circumstances.     The trial court subsequently assessed the

minimum sentence possible, fifteen years confinement, and this appeal followed.


                                       Discussion


       Appellant asserts: (1) her counsel was ineffective because he did not assert, or

present   evidence    on,   deferred   adjudication   community     supervision   (deferred

adjudication) during the guilt/innocence phase of the plea proceeding; (2) the trial court

erroneously included a deadly weapon finding in the judgment because it failed to make

an affirmative finding in open court; and (3) there was insufficient evidence of

Appellant’s ability to pay her court-appointed attorney’s fees.


       Ineffective Assistance of Counsel


       We examine ineffective assistance of counsel claims by the standard enunciated

in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

See Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex.Crim.App. 1986). Appellant has

the burden to show by a preponderance of evidence (1) trial counsel’s performance was

deficient in that it fell below the prevailing professional norms, and (2) the deficiency

prejudiced the defendant; that is, but for the deficiency, there is a reasonable probability

                                             3
that the result of the proceeding would have been different. See Thompson v. State, 9

S.W.3d 808, 812 (Tex.Crim.App. 1999).                Counsel’s conduct is viewed with great

deference; Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App. 2005), and the

record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d

at 812.


       Appellant asserts her counsel was ineffective because he did not request

deferred adjudication during the guilt/innocence phase of her plea hearing even though

an application for community supervision was on file and her counsel requested

deferred adjudication through her testimony during the sentencing phase of the

proceedings. 4 During the sentencing phase, the trial court had the authority to grant

deferred adjudication even though it had made an oral finding of guilt. See Anderson v.

State, 937 S.W.2d 607, 609 (Tex.App.—Houston [1st Dist.] 1996, no pet.); Powers v.

State, 727 S.W.2d 313, 316-17 (Tex.App.—Houston [1st Dist.] 1987, pet. ref’d). See

also TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5 (W EST 2012). Accordingly, assuming

without deciding Appellant’s counsel was ineffective, we find no harm because deferred

adjudication was requested during the sentencing phase—a time when the trial court

had authority to withdraw its oral pronouncement of guilt and grant Appellant’s request.

Appellant’s first issue is overruled.
4
 During the sentencing phase of the plea hearing, the following exchange took place between Appellant
and her counsel:

       Q.      Are you asking Judge Emerson to place you on probation, deferred adjudication
               probation?
       A.      Yes, I would—I would love one more chance, you know. I—mercy, have one
               chance.
       Q.      Well, Mayra . . . Why do you believe that you should be allowed even one chance
               and get           deferred probation?
       A.      Because I will prove that I—you’ll never see me again. I—I did it—I did it
               because my husband got taken away and we were already two or three months
               behind on rent, and I didn’t know, you know, how to get quick cash.

                                                 4
       Deadly Weapon


       Appellant next contends the trial court erred by incorporating a deadly weapon

finding in its judgment because it did not make an affirmative deadly weapon finding at

sentencing. We disagree.


       A trial court is not required to orally announce a deadly-weapon finding at

sentencing and may include such a finding in its written judgment “if the allegation of

use of a deadly weapon is clear from the face of the indictment.” Ex parte Huskins, 176

S.W.3d 818, 820-21 (Tex.Crim.App. 2005).             Here, the indictment clearly stated

Appellant was alleged to have used or exhibited a deadly weapon in the commission of

the offense, two officers testified at the hearing to the presence of a deadly weapon in

the bedroom safe, photographs of the handgun were admitted at the hearing, and

Appellant testified to the presence of the deadly weapon in the bedroom safe containing

drugs. Appellant’s second issue is overruled.


       Court-Appointed Attorney’s Fees


       The written judgment in this case reflects an assessment of court-appointed

attorney’s fees totaling $200 as court costs.         In order to assess court-appointed

attorney’s fees as court costs, a trial court must determine that the defendant has

financial resources sufficient to offset in part, or in whole, the costs of the legal services

provided. TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (W EST 2009). In that regard, the

record must reflect some factual basis to support the determination that the defendant is

capable of paying court-appointed attorney’s fees. See Perez v. State, 323 S.W.3d

298, 307 (Tex.App.—Amarillo 2010, pet. ref’d). See also Barrera v. State, 291 S.W.3d

                                              5
515, 518 (Tex.App.—Amarillo 2009, no pet.); Perez v. State, 280 S.W.3d 886, 887

(Tex.App.—Amarillo 2009, no pet.).        We note the record does not contain a

pronouncement, determination, or finding that Appellant had financial resources

sufficient for her to pay all, or any part of, the fees paid her court-appointed counsel,

and we are unable to find any evidence to support such a determination. Therefore, we

conclude, and the State candidly confesses as much, that the order to pay court-

appointed attorney’s fees was improper. See Mayer v. State, 309 S.W.3d 552, 555-56

(Tex.Crim.App. 2010). When the evidence does not support an order to pay court-

appointed attorney’s fees, the proper remedy is to delete the order from the judgment.

Id. at 557. See Anderson v. State, No. 03-09-00630-CR, 2010 Tex. App. LEXIS 5033,

at *9 (Tex.App.—Austin July 1, 2010, no pet.) (mem. op., not designated for

publication).   Accordingly, Appellant’s third issue is sustained and we modify the

judgment to delete the order to pay $200 in court-appointed attorney’s fees as court

costs.


                                      Conclusion


         We modify the trial court’s judgment to delete the order to pay $200 in court-

appointed attorney’s fees and affirm as modified.


                                                Patrick A. Pirtle
                                                    Justice


Do not publish.




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