                                   NO. 07-11-0111-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                         PANEL B

                                   JANUARY 17, 2012


                                BRYAN KEITH JERRELL,

                                                                Appellant
                                             v.

                                 THE STATE OF TEXAS,

                                                                 Appellee
                          _____________________________

            FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

            NO. 50,264-D; HONORABLE DON R. EMERSON, PRESIDING


                                 Memorandum Opinion


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

       Appellant Bryan Keith Jerrell was adjudicated guilty of indecency with a child by

exposure after pleading true to allegations he violated his probation, and he was

sentenced to four years incarceration in the Department of Criminal Justice. He argues

that 1) his punishment is cruel and unusual because he is mentally retarded, and 2)

there is no evidence to support an order to pay attorney’s fees.        We modify the

judgment and, as modified, affirm it.
        Cruel and Unusual Punishment

        In his first issue, appellant contends that sentencing him to incarceration in an

adult prison when he functions at the level of a seven-year-old constitutes cruel and

unusual punishment. Appellant did not raise this issue to the trial court.1 The failure to

do so waives the issue. Ham v. State, No. 07-09-00331-CR, 2011 Tex. App. LEXIS

8572, at *15 (Tex. App.–Amarillo October 27, 2011, no pet.).

        Imposition of Attorney’s Fees as Costs

        In his other issue, appellant claims the trial court erred in ordering him to pay

costs which included attorney’s fees because there is no evidence that he is capable of

paying them. Appellant was ordered to pay costs in the judgment, and the clerk’s bill of

costs included $600 in attorney’s fees. The record shows that appellant had appointed

counsel for trial and that he had no means to pay an attorney on appeal. When the

record does not show that the defendant is financially capable of paying attorney’s fees,

the trial court errs in ordering reimbursement in the judgment. See Mayer v. State, 309

S.W.3d 552, 556-57 (Tex. Crim. App. 2010).

        Accordingly, we modify the judgment to delete any obligation to pay attorney’s

fees in the amount of $600 and, as modified, affirm it.



                                                         Brian Quinn
                                                         Chief Justice
Do not publish.



        1
          In his motion for new trial, appellant alleged that his mental functioning rendered him unable to
intelligently enter a plea and made him incompetent for trial and that he was deprived of effective
assistance of counsel due to his trial counsel’s failure to raise those issues.

                                                    2
