
                              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 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).




      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 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.

      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.















-----------------------
      [1]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 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.).




