      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-11-00721-CR



                                   Austin Joel Trott, Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
            NO. 64135, HONORABLE JOE CARROLL, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant, Austin Joel Trott, pleaded guilty to the charge of theft of a firearm, a state

jail felony with a statutory punishment range of six months to two years and a fine of up to $10,000.

Tex. Penal Code Ann. § 31.03(a),(e)(4)(C) (West 2011). The trial court placed appellant on three

years deferred-adjudication community supervision. Appellant was subsequently arrested for public

intoxication and burglary of a motor vehicle. Appellant bonded out of jail and fled to Mexico before

the State filed a motion to adjudicate. He remained in Mexico for two years before returning to

Texas to confront his legal problems. He pleaded “true” to the allegations in the motion to

adjudicate and requested continued community supervision. The trial court adjudicated appellant

guilty and imposed a sentence of 18 months in state jail. The court also assessed court-appointed

attorney’s fees of $787.50 that appellant was to pay on release from his sentence. The record reflects

that the trial court twice found appellant to be indigent. On appeal, appellant contests the assessment
of attorney’s fees and alleges that the trial court abused its discretion in imposing the jail sentence.

We sustain appellant’s first issue and modify the judgment to delete the attorney’s fees award; we

overrule his second issue and affirm the judgment of the trial court as modified.


                                            DISCUSSION

                Appellant first challenges the assessment of $787.50 for court-appointed attorney’s

fees. The code of criminal procedure provides that if the court determines that a defendant has

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

to him, the court shall order him to pay the amount it finds the defendant is able to pay. Tex. Code

Crim. Proc. Ann. art. 26.05(g) (West 2011). An accused whom the trial court has found to be

indigent is presumed to remain indigent for the rest of the proceedings in the case absent “a material

change in the defendant’s financial circumstances.” Id. art. 26.04(p) (West 2011). The defendant’s

financial resources and ability to pay are explicit elements of the statute that must be supported by

record evidence. Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). If the evidence does

not support the trial court’s judgment to pay attorney’s fees, the remedy is to modify the judgment

to delete the attorneys’ fees assessment. Dominguez v. State, 363 S.W.3d 926, 934 (Tex.

App.—Austin 2012, no pet.) (citing Mayer, 309 S.W.3d at 557). In the present case, both the State

and appellant agree that the record evidence does not support the trial court’s assessment

of attorneys’ fees, and both ask that the assessment be deleted. We therefore sustain appellant’s

first issue.

                Appellant argues in his second issue that the trial court abused its discretion in

imposing a sentence of 18 months in a state jail because such a sentence violates the objectives of

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the system set up by the penal code, one of which is rehabilitation. See Tex. Penal Code Ann.

§ 1.02(1)(B) (West 2011). Appellant did not raise this issue in the trial court. He argues that the

problem was so apparent from the context of the case that a specific objection was unnecessary to

preserve the issue for appeal. See Tex. R. App. P. 33.1 (a)(1)(A). We disagree. Appellant relies on

cases in which the courts of appeals addressed allegations of bias or fundamental mistakes by

the trial court, such as the trial court entering a deadly weapon finding when the jury did not. See,

e.g., Edwards v. State, 21 S.W.3d 625, 626-27 (Tex. App.—Waco 2000, no pet.). Appellant does

not explain why his failure to object to a sentence that was within the range prescribed by

the legislature rises to that level. We therefore conclude that he waived this issue. Tex. R. App.

P. 33.1; see Gilmore v. State, No. 03-10-00740-CR, 2011 WL 3659311, at *1 (Tex. App.—Austin

Aug. 16, 2011, no pet.) (mem. op., not designated for publication).

               In any event, we do not think the trial court abused its discretion. Generally, if there

is record evidence to support the trial judge’s sentence, we will not reverse absent a showing of

abuse of discretion. Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984). Also, as a

general proposition, appellate courts will not disturb a sentence that is within the statutory range.

Id. Here, the trial court had evidence before it that appellant had committed two additional crimes

during his community supervision and had fled the United States for two years in order to escape the

consequences. In light of these facts, we hold that the trial court did not abuse its discretion in

adjudicating appellant guilty and imposing a state jail sentence that appellant concedes is within the

statutory range. We overrule appellant’s second issue.




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                                          CONCLUSION

               Having sustained appellant’s first issue and overruled his second issue, we modify

the trial court’s judgment to delete the award for attorney’s fees and affirm the judgment as modified.



                                               __________________________________________

                                               J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Modified and, as Modified, Affirmed

Filed: November 7, 2012

Do Not Publish




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