                                  NO. 07-10-00068-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                  SEPTEMBER 2, 2010


                        DETRICK MONTGOMERY, APPELLANT

                                            v.

                          THE STATE OF TEXAS, APPELLEE


            FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

       NO. 2009-423,841; HONORABLE BRADLEY S. UNDERWOOD, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION

      Appellant, Detrick Montgomery, appeals the entry of a judgment of conviction for

the offense of possession of a controlled substance (cocaine) with the intent to deliver in

an amount of four grams or more but less than 200 grams. The trial court sentenced

appellant to thirty years incarceration in the Institutional Division of the Texas

Department of Criminal Justice. Appellant’s issues do not challenge the conviction or

the sentence of confinement, but rather challenge the trial court’s orders that appellant

pay appointed attorney’s fees and restitution. We will modify the judgment and affirm.
                                       Background


        As appellant does not challenge his conviction nor his sentence of incarceration,

we will limit our review of the facts and procedural history of this case to those that are

relevant to the issues raised by appellant.


        Immediately after the trial court pronounced appellant’s sentence of incarceration

in open court, it inquired about appellant’s desire to appeal and his ability to pay for an

attorney on appeal. Appellant stated that he could not afford to hire an attorney, and

the trial court stated that it would appoint an attorney to appellant for appeal. No record

evidence establishes that appellant had the ability to pay attorney’s fees at the

conclusion of trial. However, the judgment entered by the trial court ordered appellant

to pay $1,222.50 as “prior attorney fee.”


        In addition, the trial court failed to address the issue of restitution during the

pronouncement of appellant’s sentence and no subsequent hearings were held on this

matter. However, the judgment ordered appellant to pay restitution in an amount of

$140.


        By two issues, appellant challenges the judgment. By his first issue, appellant

contends that there was no evidence that appellant had the financial resources or ability

to pay for services rendered by court-appointed counsel and, therefore, the trial court’s

order that appellant pay $1,222.50 for “prior attorney fee” was in error and should be

struck from the judgment. By his second issue, appellant contends that, in its oral

pronouncement of sentence, the trial court failed to include restitution as a part of the


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sentencing and, therefore, the subsequent inclusion in the judgment of an order that

appellant pay $140 in restitution is invalid and must be struck from the judgment.


                             Repayment of Attorney’s Fees


      On the issue of repayment of attorney’s fees, 1 article 26.05(g) of the Texas Code

of Criminal Procedure provides, “[i]f the court determines that a defendant has financial

resources that enable him to offset in part or in whole the costs of the legal services

provided, . . . the court shall order the defendant to pay during the pendency of the

charges or, if convicted, as court costs the amount that it finds the defendant is able to

pay.” TEX. CRIM. PROC. CODE ANN. art. 26.05(g) (Vernon Supp. 2009). The key factors

in determining the propriety of ordering reimbursement of costs and fees are the

defendant’s financial resources and ability to pay. Mayer v. State, 309 S.W.3d 552, 556

(Tex.Crim.App. 2010).       “Without evidence to demonstrate appellant’s financial

resources to offset the costs of the legal services, the trial court erred in ordering




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         The record is confusing as to precisely how this issue arose. First, there is no
order in the clerk’s record appointing counsel to appellant for trial. Further, during the
discussion of appellant’s right to appeal at the close of punishment, appellant’s trial
counsel stated that appellant’s “family doesn’t have the funds to continue paying for an
attorney in this case” (emphasis added). Thus, it appears that appellant retained trial
counsel and, clearly, the trial court may not order appellant to pay attorney’s fees to
retained counsel as part of a criminal judgment.
       However, based on the judgment’s indication that the $1,222.50 was for “prior
attorney fee,” we will presume that appellant had been previously represented by
appointed counsel prior to retaining trial counsel, and that the trial court was ordering
appellant to repay those fees. We believe that this presumption is the most logical
based on the sparse information contained in the record on how these fees were
incurred, and appellant and the State treating the order as relating to appointed
attorney’s fees.
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reimbursement of appointed attorney fees.”        Mayer v. State, 274 S.W.3d 898, 901

(Tex.App.—Amarillo 2008), aff’d, 309 S.W.3d at 558.


       The State concedes that the trial court erred in ordering appellant to pay

attorney’s fees without taking evidence sufficient to allow it to determine that appellant

had the ability to pay those fees. As the record includes no evidence that appellant had

the ability to pay attorney’s fees at the time that the trial court ordered them paid, we

conclude that the evidence supporting this portion of the judgment is legally insufficient

and modify the judgment to remove the order that appellant pay $1,222.50 for “prior

attorney fee.” See id. at 902.


                                        Restitution


       On the issue of the trial court’s restitution order, “[w]hen the oral pronouncement

of sentence and the written judgment differ, the oral pronouncement controls.” Sauceda

v. State, 309 S.W.3d 767, 769 (Tex.App.—Amarillo 2010, pet. filed).          Because this

Court has determined that restitution is an aspect of punishment, an order of restitution

must be included in the oral pronouncement to be valid. Id. When restitution is ordered

in a judgment but was not pronounced as an aspect of punishment, the proper remedy

is to modify the judgment to delete the order of restitution. Id.


       In the present case, the trial court’s oral pronouncement of sentence made no

reference to restitution, and no evidence was received that could provide a factual basis

for an order of restitution. However, in the judgment, the trial court ordered appellant to

pay $140 in restitution. As the oral pronouncement of sentence omitted any order of


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restitution, the trial court could not order restitution in the judgment. Consequently, we

modify the judgment to delete the order of restitution.


                                        Conclusion


       For the foregoing reasons, we modify the judgment of the trial court to delete the

orders that appellant pay $1,222.50 for “prior attorney fee” and $140 in restitution. As

modified, we affirm the judgment of the trial court.



                                                          Mackey K. Hancock
                                                               Justice



Do not publish.




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