                                     NO. 07-10-0379-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL A

                                        APRIL 25, 2012

                           ______________________________


                              GARY MOFFETT, APPELLANT

                                               V.

                            THE STATE OF TEXAS, APPELLEE

                         _________________________________

               FROM THE 120TH DISTRICT COURT LUBBOCK COUNTY;

             NO. 2009-425,183; HONORABLE JIM BOB DARNELL, JUDGE
                        _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                 MEMORANDUM OPINION


      Appellant, Gary Moffett, was convicted by a jury of knowingly possessing, with

intent to deliver, cocaine, in an amount of two hundred grams or more but less than four

hundred grams1 enhanced and sentenced to confinement for life. Appellant asserts the

trial court (1) erred by denying him proper confrontation and cross-examination of a

confidential informant; (2) ordered him to pay court-appointed attorney’s fees when

there was no evidence he was not indigent; and (3) there was insufficient evidence to

1
See Tex. Health & Safety Code Ann. § 481.112(e) (West 2010).
determine the amount of Appellant’s court-appointed attorney’s fees.               The State

concedes error regarding Appellant’s second and third issues.            We modify the trial

court’s judgment to delete the order to pay $4,815.00 in court-appointed attorney’s fees

as part of the court costs, correct the trial court’s judgment to reflect the correct statutory

basis for conviction, and affirm the judgment as modified.


        CONFRONTATION CLAUSE


        Appellant asserts he was denied his constitutional right to confront a confidential

informant because the trial court prevented pretrial access to the informant’s statement

to the police, made in conjunction with this agreement to work as a confidential

informant, that his prior criminal history included robbery.        He further asserts that,

“[n]either the trial record nor the sealed materials reflect that the robbery to which [the

informant] referred was not part of his ‘prior criminal record;’ it indicates several arrests

for robberies, but does not remove the possibility that [the informant] was convicted of a

robbery . . . .”


        Appellant characterizes this issue as being one of constitutional dimension;

however, the record reflects that Appellant conducted a full cross-examination of the

informant. The record reflects no instances in which Appellant was denied an avenue

by which to attack the witness’s credibility on cross-examination at trial. Other than the

assertions in Appellant’s brief, the record contains no objection to the sealing of any

documents by the trial court nor any objection by Appellant that would have required a

ruling by the trial court during Appellant’s cross-examination of the informant pertaining

to his prior criminal record. Thus, we find this issue was not preserved for our review.


                                              2
Tex. R. App. P. 33.1(a); Layton v. State, 280 S.W.3d 235, 238-39 (Tex.Crim.App. 2009).

It is well settled that almost every right, constitutional or statutory, may be waived by

failing to object. Smith v. State, 721 S.W.2d 844, 855 (Tex.Crim.App. 1986). See

Paredes v. State, 129 S.W.3d 530, 535 (Tex.Crim.App. 2004) (a Confrontation Clause

objection must be made in the trial court to preserve a Confrontation Clause complaint

for review on appeal).2 Appellant’s first issue is overruled.


        COURT-APPOINTED ATTORNEY’S FEES


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

attorney’s fees totaling $4,815.00 as court costs. In order to assess attorney’s fees as

court costs, a trial court must determine that the defendant has financial resources that

enable him to offset in part, or in whole, the costs of the legal services provided. Tex.

Code Crim. Proc. Ann. art. 26.05(g) (West 2009).                    Here, the record reflects that

Appellant’s counsel was appointed after the trial court found him indigent and unable to

afford the cost of legal representation.             Unless a material change in his financial

resources occurs, once a criminal defendant has been found to be indigent, he is

presumed to remain indigent for the remainder of the proceedings. Tex. Code Crim.

Proc. Ann. art. 26.04(p) (West Supp. 2011). Therefore, because there is evidence of

record demonstrating that Appellant was found indigent and qualified for court-

2
 We also note that Texas Rule of Evidence 609 permits the impeachment of a witness who has been
convicted of a felony if the commission of the felony is elicited from the witness or established by public
record and the court determines that the probative value of admitting this evidence outweighs its
prejudicial effect to a party. Tex. R. Evid. 609(a). Because Appellant would have been attempting to
impeach the informant with evidence of a prior felony conviction for robbery, it was his burden to produce
evidence showing such a conviction existed as well as meet the other requirements of Rule 609. Arnold
v. State, 36 S.W.3d 542, 546 (Tex.App.—Tyler 2000, pet. ref’d) (the proponent of Rule 609 evidence
must show that it is admissible).



                                                    3
appointed counsel, we presume his financial status had not changed, i.e., that he was

indigent at the time the trial court entered judgment.


       Furthermore, the record must reflect some factual basis to support the

determination that the defendant is capable of paying 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 515, 518 (Tex.App.—Amarillo 2009, no pet.); Perez v. State, 280

S.W.3d 886, 887 (Tex.App.—Amarillo, no pet.). We note that the record in this case

does not contain a pronouncement, determination, or finding that Appellant had financial

resources that enable him to pay all, or any part of, the fees paid his court-appointed

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

Therefore, we conclude, and the State 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).     And, when the evidence does not support an order to pay

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.) (not designated for publication). Accordingly,

Appellant’s second and third issues are sustained and we modify the judgment to delete

the order to pay $4,815.00 in court-appointed attorney’s fees as court costs.


       JUDGMENT OF CONVICTION


       We note an issue not raised by either Appellant or the State regarding the

judgment of conviction.     While the written judgment reflects the Offense for which

Defendant Convicted to be “possession w/intent to deliver a controlled substance PG1,


                                             4
namely cocaine, 200-400 grams” and the Statute for Offense to be section 481.112(c) of

the Texas Health & Safety Code,3 the undisputed record reflects that Appellant was

charged with, and the jury convicted him of, knowingly possessing, with intent to deliver,

cocaine in an amount of two hundred grams or more but less than four hundred grams.

See Tex. Health & Safety Code Ann. § 481.112(e) (West 2010). Therefore, we modify

the trial court’s judgment to reflect the correct statutory basis for conviction—section

481.112(e) of the Texas Health and Safety Code.


                                                 Conclusion


       The trial court’s judgment is modified to delete the order to pay $4,815.00 in

court-appointed attorney’s fees as part of the court costs and to reflect the correct

statutory basis for conviction and, as modified, the judgment is affirmed.


                                                         Patrick A. Pirtle
                                                             Justice

Do not publish.


3
Section 481.112 states, in pertinent part, as follows:

       (a) Except as authorized by this chapter, a person commits an offense if the person
       knowingly manufactures, delivers, or possesses with intent to deliver a controlled
       substance listed in Penalty Group 1.

                                             *       *        *

       (c) An offense under Subsection (a) is a felony of the second degree if the amount of the
       controlled substance to which the offense applies is, by aggregate weight, including
       adulterants and dilutants, one gram or more but less than four grams.

                                             *       *        *

       (e) An offense under Subsection (a) is punishable by imprisonment in the Texas
       Department of Criminal Justice for life or for a term of not more than 99 years or less than
       15 years, and a fine not to exceed $250,000, if the amount of the controlled substance to
       which the offense applies is, by aggregate weight, including adulterants or dilutants, 200
       grams or more but less than 400 grams.

                                                     5
