                                  NO. 07-08-0385-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                FEBRUARY 17, 2010
                             ________________________

                            SHANE SEPEDA, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE
                           ________________________

             FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                  NO. 54,125-A; HONORABLE HAL MINER, JUDGE
                           _________________________


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


                              MEMORANDUM OPINION


      Appellant, Shane Sepeda, appeals the judgment cumulating his sentence for the

offense of possession of a controlled substance with the sentences for three prior

convictions. Additionally, appellant contends the trial court erred in assessing court

appointed attorney fees without a hearing to determine his ability to offset the cost of

legal services provided. We affirm the trial court=s judgment as reformed.
Background


        Appellant was charged with the commission of the offense of possession of a

controlled substance, methamphetamine, of 4 grams or more but less than 200 grams

on or about August 8, 2006. Appellant entered into a plea agreement and was placed

on deferred adjudication on July 24, 2007. In June of 2008, the State filed a motion to

proceed with adjudication alleging five violations. On September 24, 2008, appellant

pled true to four violations. The trial court proceeded to sentence appellant to 20 years

in the Institutional Division of the Texas Department of Criminal Justice (ID-TDCJ).

Additionally, upon the State=s request to cumulate appellant=s sentence, the trial court

ordered that appellant=s sentence was to run consecutive to Aall the other ones.@ Also

included in the judgment, the trial court further ordered that Aany . . . Court Appointed

fees . . . be paid . . . .@


        By four issues, appellant appeals the trial court=s oral pronouncement of the

cumulation of his sentence and the order to pay court appointed attorney fees without a

determination of his ability to pay. We affirm the judgment as reformed.


Standard of Review


        A cumulation order must be specific enough that prison authorities know how

long to detain the prisoner.     Stokes v. State, 688 S.W.2d 539, 540 (Tex.Crim.App.

1985). For a valid cumulation order, the order must identify: (1) the cause number of

the prior conviction, (2) name of the trial court of the prior conviction, (3) date of the prior

conviction, (4) the term of years of the prior conviction, and (5) the nature of the prior


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conviction. Id. Before a judge may exercise his discretion to cumulate, he must be

aware of the prior conviction. See Miller v. State, 33 S.W.3d 257, 260 (Tex.Crim.App.

2000).    An admission by a defendant or counsel is sufficient evidence to link the

defendant to the prior convictions. Id. at 262. A trial court may correct a cumulation

order nunc pro tunc to add descriptive details of the prior offenses inadvertently omitted

from the trial court=s first cumulation order. See Williams v. State, 675 S.W.2d 754, 765

n.6 (Tex.Crim.App. 1984).


         In this matter, the trial court=s oral pronouncement of cumulated sentences

consisted of AI=m going to assess your punishment at 20 years in the institutional

division on this case.     And I=m going to grant the State=s motion for consecutive

sentences. And this B case will run consecutive to all the others.@ However, the trial

court, as well as the participants, was aware of the other cases being discussed. In

fact, earlier in the proceeding, the trial court stated, ALet me make this observation. . . . I

presided over the jury trial that everyone was talking about here . . . and I presided

yesterday over the two Motions to Revoke the probation that were heard yesterday in

Canyon.@ Additionally, during closing argument, appellant=s trial counsel pointed out,

ABecause of the Court=s action in Cause No. 57,621-A and in Cause No. 19,028-A

yesterday and 18,832 yesterday in Randall County, . . .@ it appears clear that all the

participants understood which Aother cases@ the trial court was referring to.             This

situation is very similar to Mungaray v. State wherein the trial court cumulated the

appellant=s sentence after learning that he had been sentenced in another county but

failed to orally specify the prior conviction sufficiently. See Mungaray v. State, 188

S.W.3d 178, 182 (Tex.Crim.App. 2006). In Mungaray, the trial court cumulated the

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defendant’s sentences by ordering the sentences to “run consecutively with the 99-year

sentence imposed in Gains [sic] County, Texas, arising out of the same criminal

episode.” Id. Although, in Mungaray, the Court of Appeals decided that the evidence

was insufficient to establish a connection between the defendant and the prior

conviction because of the lack of proof of date or cause number, the Texas Court of

Criminal Appeals, in considering all the relevant portions of the record, concluded that

the failure of the State to present evidence of two of the elements necessary in a

cumulation order does not render the evidence insufficient to support the trial court’s

cumulation order.    Id. at 184. Although appellant disagrees with the State’s contention

that an oral cumulation order can be sufficient under “the totality of the circumstances,”

we conclude that case law supports this proposition. In fact, the case law cited by

appellant demonstrates that the requirements for a cumulation order are not absolutes

and that a cumulation order not setting out all the requirements may, in some

circumstances, be valid. See Ex parte San Migel, 973 S.W.2d 310, 311 (Tex.Crim.App.

1998); see also Mungaray, 188 S.W.3d at 184. Since the record, taken as a whole,

demonstrates that all parties were aware of the prior convictions being considered for

cumulative purposes, we conclude that the evidence is sufficient to support the oral

pronouncement of the cumulation of appellant’s sentence.1 Therefore, we conclude

that, because the evidence is sufficient, the trial court did not abuse its discretion to

cumulate appellant’s sentence. See Stokes, 688 S.W.2d at 540 (discretion to cumulate

sentences is given to the trial court).

       1
        We note that appellant does not raise any issues with the written cumulation
order contained within the judgment which contains all five elements necessary for a
valid cumulation order. See Stokes, 688 S.W.2d at 540.

                                            4
Court Appointed Attorney Fees


       Next, appellant contends that the trial court erred in assessing court appointed

attorney fees.   Specifically, appellant contends that the trial court failed to make a

determination of appellant’s ability to offset the costs of the legal services provided.

See TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (Vernon Supp. 2009).             Additionally,

appellant contends that the trial court further failed to declare the precise amount of the

court appointed attorney fees owing during its oral pronouncement at sentencing or in

the written judgment. Thus, appellant requests that the portion of the judgment ordering

court appointed attorney fees be stricken.


       As support for his position, appellant cites Mayer v. State, 278 S.W.3d 898, 901

(Tex.App.--Amarillo 2008, pet. ref’d) and Burke v. State, 261 S.W.3d 438, 439

(Tex.App.--Austin 2008, no pet.). However, as Burke points out, attorney fee awards

are not punishment and need not be pronounced orally at sentencing. See Burke 261

S.W.3d at 438; see also Weir v. State, 278 S.W.3d 364, 367 (Tex.Crim.App. 2009).

Thus, we will focus our discussion on appellant’s contention that the judgment did not

contain a specified amount for attorney fees.


       Initially, we note that neither Mayer nor Burke involved a defendant being placed

on community supervision before being convicted.       In the instant case, appellant was

placed on deferred adjudication for four years.       Contained in the Order Deferring

Adjudication and Placing Defendant on Community Supervision, filed with the clerk on

August 7, 2007, the trial court deferred further proceedings and stated that “Said

community supervision and suspension of further proceedings shall be conditioned that

                                             5
the defendant during the entirety of the term of community supervision shall: . . . pay the

following costs . . . including Court Appointed Attorney Fee . . . .” Contained in the

clerk’s record, also dated August 7, 2007, is a bill of costs setting out the court

appointed attorney fees as $2300.00.        We noted that the clerk’s record does not

indicate nor has appellant contended that he appealed the order deferring adjudication.


       However, in comparing the bill of costs in August 2007 with the bill of costs filed

concurrently with the final judgment in June 2008, the two differences noted between

the two bills of costs are an increase in sheriff fees (presumably for the issuance of a

capias in conjunction with the motion to proceed on adjudication) and an $1100

increase to court appointed attorney fees. The increase in attorney fees is consistent

with two Attorney Fees Expense Claim forms filed by appellant’s attorney on September

3, 2008 and September 24, 2008, the date on which appellant pled true during the

motion to proceed on adjudication. The bill of costs in August 2007 contained court

appointed attorney fees of $2300 which correspond to the legal work of attorneys

involved with a mistrial on March 8, 2007, and guilty plea in July 2007, at which time

appellant was placed on deferred adjudication community supervision. Since no timely

notice of appeal was filed regarding the lack of determination of appellant’s ability to pay

court appointed attorney fees as ordered in the Order Deferring Adjudication, see TEX.

CODE CRIM. PROC. ANN. art. 26.05(g) (Vernon Supp. 2009) (the court shall order the

defendant to pay [the cost of legal services provided] during the pendency of the

charges), we conclude that the portion of court appointed attorney fees ordered paid at

the time appellant was placed on deferred adjudication community supervision is not

subject to our jurisdiction. See Olivo v. State, 918 S.W.2d 519, 523 (Tex.Crim.App.

                                             6
1996) (a defective attempt to perfect appeal fails to invoke the jurisdiction of the

appellate court who must then dismiss the matter).     Therefore, we dismiss appellant’s

complaint as it relates to the repayment of court appointed attorney fees for services

rendered prior to the issuances of the Order Deferring Adjudication.


       As for the remaining portion of attorney fees, we agree with appellant that the

court failed to make a determination of appellant’s ability to offset, in part or in whole,

the costs of legal services provided in the proceeding involving the adjudication of

appellant.2 We, therefore, reform the judgment to remove the assessment of court

appointed attorney fees assessed during the adjudication proceedings which was

determined to be $1,100.00. Therefore, in accordance with the Bill of Costs minus the

$1,100 court appointed attorney fees incurred for legal services provided to appellant

after the Order Deferring Adjudication, we conclude that the correct amount of the bill of

costs to be $2,672.74, to be reflected in the judgment as follows:


       IT IS FURTHER ORDERED that any Fine, Court Costs, Court Appointed

       Attorney fees, and Time Payment fee (if applicable) as ordered in the

       amount of $2,672.74 herein be paid as follows:




       2
         The State contends that the court appointed attorney fees should be upheld
because appellant “will likely receive funds for work while imprisoned, which will be
placed in a trust fund.” While this fact may be true, the clerk’s record does not provide
any evidence that the trial court made any such findings at the time of sentencing.

                                            7
                                      Conclusion


      Having overruled appellant’s first issue and partially overruling his second issue,

we affirm the judgment as modified.



                                               Mackey K. Hancock
                                                  Justice



Do not publish.




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