                                         NO. 07-10-0064-CR

                                   IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                            AT AMARILLO

                                               PANEL C

                                        DECEMBER 16, 2011

                               ______________________________


                              LISA BETTY LOMBRANA, APPELLANT

                                                    V.

                                THE STATE OF TEXAS, APPELLEE

                             _________________________________

                 FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                        NO. 58-940-A; HONORABLE HAL MINER, JUDGE

                               _______________________________

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


                                     MEMORANDUM OPINION


      Appellant, Lisa Betty Lombrana, pled guilty in open court to possession of heroin in an

amount of four grams or more but less than two hundred grams with intent to deliver in a drug-

free zone1 and was sentenced by a jury to fifteen years confinement and a $15,000 fine. In

two issues, Appellant asserts (1) the trial court erred by failing to instruct the jury that they

could recommend community supervision and still impose a fine while incorrectly instructing

1
See Tex. Health & Safety Code Ann. 481.112(d), 481.134(c)(1) (West 2010).
the jury that, if Appellant’s confinement was suspended, any fine would automatically be

suspended as well, and (2) the district clerk’s bill of costs is void because it charges Appellant

with repayment of court costs and court-appointed attorney’s fees when the trial court’s

judgment does not specifically require Appellant to pay any court costs or attorney’s fees. We

modify the trial court’s judgment to clarify that payment of $2,565.60 in court-appointed

attorney’s fees is not a part of the court costs ordered in this case and affirm the judgment as

modified.


                                                  Background


        In March 2009, an indictment was returned alleging that, on or about December 5,

2008, Appellant knowingly possessed, with intent to deliver, a controlled substance, namely:

heroin, in an amount of four grams or more but less than two hundred grams by aggregate

weight, including any adulterants and dilutants.                 A second paragraph alleged Appellant

committed the offense within 1,000 feet of a drug-free zone, to-wit: Whittier Elementary School.


        In February 2010, Appellant pled guilty in open court to the allegations in the indictment.

The maximum sentence Appellant could receive was life or any term not more than 99 years or

less than 10 years and a fine not to exceed $20,000.2                         Appellant chose to have her

punishment assessed by a jury and sought community supervision.




2
 Because Appellant pled guilty to committing a first degree felony; see Tex. Health & Safety Code Ann. §
481.112(d) (West 2010), in a drug free zone; see Tex. Health & Safety Code Ann. 481.134(c)(1) (West 2010), the
maximum penalty for a first degree felony, i.e., imprisonment for life or for any term not more than 99 years or less
than 5 years and a fine not to exceed $10,000; see Tex. Penal Code Ann. § 12.32(a), (b) (West 2011), was
increased by five years and the maximum fine was doubled. See Tex. Health & Safety Code Ann. §
481.134(c)(1) (West 2010).


                                                         2
       The trial court subsequently held a punishment trial before a jury.       Bill Redden, a

narcotics officer for the Amarillo Police Department, testified that, on December 5, 2008, he

executed a search warrant at Appellant’s residence. After being read her Miranda rights,

Appellant told Officer Redden that she had been selling heroin for a couple of months and any

heroin in the house belonged to her. In various containers in several locations, the officers

found 4.08 grams of heroin in the residence.         Officer Redden also testified Appellant’s

residence was within 1,000 feet of Whittier Elementary School--a drug free zone. Thereafter,

the State rested.


       In addition to Appellant, Brandon Ester, assigned to the court unit of the Community

Supervision and Corrections Department, testified and explained how probation works, what

conditions might be placed on probationers, and the consequences of failing to follow the

applicable conditions.


       At the jury charge conference, Appellant’s counsel affirmatively stated he had no

objection to the trial court’s proposed charge. Paragraph five of the trial court’s charge to the

jury reads as follows:


       The defendant has filed her sworn motion for probation herein, alleging that she
       has never before been convicted of a felony in this State or any other State.

       Now if you believe from the evidence that the defendant has never before been
       convicted of a felony in this State or any other State, and if you assess the
       punishment of the defendant at confinement in the Texas Department of Criminal
       Justice, Institutional Division for a period of 10 years or less, then you may
       recommend such community supervision for the defendant. If you recommend
       community supervision, you may also assess a fine in addition to confinement in
       the Texas Department of Criminal Justice, Institutional Division. Whether you do
       or do not recommend community supervision for the defendant is a matter that
       rests within the sound discretion of the jury.



                                               3
      In its oral pronouncement regarding paragraph five, the trial court stated: “If you

recommend community supervision, you may also assess a fine in addition to confinement in

the [TDCJ], which would be suspended.” (Emphasis added).


      Paragraphs five and six of the Punishment Verdict Forms attached to the court's charge

read as follows:


      No. 5 We, the jury, having found the defendant guilty of the offense of
      Possession of a Controlled Substance with the Intent to Deliver, in a Drug Free
      Zone, assess her punishment at confinement in the Texas Department of
      Criminal Justice, for _________ years, and assess a fine of $_______________
      in addition to such imprisonment, and we further find that the defendant has
      never before been convicted of a felony in this or any other state, and we
      recommend to the Court that the imposition of the sentence against the
      defendant as to imprisonment and fine be suspended and that the defendant be
      placed on community supervision as provided by the Community Supervision law
      of the State of Texas.

      No. 6 We, the jury, having found the defendant guilty of the offense of
      Possession of a Controlled Substance with the Intent to Deliver, in a Drug Free
      Zone, assess her punishment at confinement in the Texas Department of
      Criminal Justice, for _________ years, and we further find that the defendant has
      never before been convicted of a felony in this or any other state, and we
      recommend to the Court that the imposition of the sentence against the
      defendant as to imprisonment be suspended and that the defendant be placed
      on community supervision as provided by the Community Supervision law of the
      State of Texas, and assess a fine of $___________________ in addition to such
      imprisonment.


      During closing arguments, Appellant’s counsel argued, in pertinent part, as follows:


      Now you also have the ability to sentence her of a potential fine up to $20,000,
      and I’m not telling you not to assess some kind of fine here. But if you choose to
      allow her to have the opportunity to survive on probation, assessing a fine might
      not be in her best interest, nor yours unless you just want to see her go to jail
      later on. You assess a $20,000 fine, plus all the other conditions of probation, I
      doubt she could make it. Because based on her language here today, I don’t
      think she is college-educated. I don’t think she makes 60,000 a year.



                                              4
         The trial court’s Judgment of Conviction By Jury subsequently sentenced Appellant to

confinement for fifteen years and a fine of $15,000. The Judgment failed to specify the amount

of court costs owed by Appellant. On the second page, however, the Judgment stated that

“[t]he Court ORDERS Defendant to pay all fines, court costs, and restitution as indicated

above.” (Emphasis added). The District Court Clerk’s Bill of Costs attached to the Judgment

assessed a $15,000 fine, a variety of fees and costs totaling $315 and $2,565.60 in court-

appointed attorney’s fees. This appeal followed.


                                           Discussion


         Appellant asserts the trial court erred because the jury charge failed to inform the jury

that it could both recommend suspension of imprisonment and still impose a fine, and the trial

court’s oral recitation of paragraph five of the charge added additional language which left the

impression with the jury that, if the jury recommended community supervision, any fine

assessed would automatically be probated or suspended. As a result, Appellant maintains she

was denied community supervision because the jury believed they could not recommend

community supervision and also impose a fine. She also asserts the Bill of Costs is void

because the trial court’s judgment does not order Appellant to pay either court costs or court-

appointed attorney’s fees.


         Jury Charge and Instructions


         In analyzing any error in the jury charge or the trial court's instructions, we first

determine if error occurred; Barrios v. State, 283 S.W.3d 348, 350 (Tex.Crim.App. 2009), and,

if so, we then conduct a harm analysis. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.

2005).

                                                 5
       We disagree with Appellant that the jury charge failed to inform jurors that they could

recommend community supervision and impose a fine. Paragraph five of the charge expressly

states “[i]f you recommend community supervision, you may also assess a fine . . . .” Further,

paragraphs five and six of the Punishment Verdict Forms attached to the instructions provide

the jury with the options of suspending both Appellant’s confinement and fine, if any were

assessed, or suspending only Appellant’s confinement while still assessing a fine. Thus, the

charge and attached verdict forms expressly gave the jury the choice of recommending

community supervision and imposing a fine.


       We also disagree with Appellant that the trial court’s additional instructions in its oral

recitation of paragraph five of the jury charge represented error. The trial court stated that, if

the jury recommends community supervision, it may also assess a fine in addition to

confinement in TDCJ “which would be suspended.” Contrary to Appellant’s assertion, the

phrase “which would be suspended” plainly modifies the previous phrase “confinement in

TDCJ” and not the fine, if any, assessed, i.e., the jury may recommend community supervision,

assess a fine and confinement in TDCJ would be suspended. Thus, the trial court’s oral

rendition of paragraph five also advised the jury that they could recommend community

supervision and assess a fine. Issue one is overruled.


       Court Costs and Attorney’s Fees


       Appellant asserts that, because the trial court omitted a specific amount of court costs in

its Judgment, the trial court did not charge Appellant any court costs and the Bill of Costs is

void as a matter of law. In support, Appellant maintains that, in order for the Bill of Costs to be




                                                6
valid, the trial court was required to orally pronounce the costs included, or incorporate them,

into its written judgment.


        Where court costs are imposed as a matter of legislative directive, they do not need to

be included in the oral pronouncement of sentence or the written judgment in order to be

imposed upon a convicted defendant. See Weir v. State, 278 S.W.3d 364, 367 (Tex.Crim.App.

2009) (holding that because legislatively mandated court costs are not punitive, they did not

have to be included in the oral pronouncement of sentence as a precondition to their inclusion

in the trial court's written judgment); Williams v. State, 332 S.W.3d 694, 700 (Tex.App.--

Amarillo 2011, pet. denied) (holding that legislatively mandated court costs did not have to be

specified in the oral pronouncement of sentence or the written judgment as a precondition to

their inclusion in the clerk's bill of costs). Therefore, regarding those charges in the Bill of

Costs exclusive of court-appointed attorney’s fees, we find that inclusion of the fine, fees and

expenses totaling $15,315 was proper. See Armstrong v. State, 320 S.W.3d 479, 481-82

(Tex.App.—Amarillo 2010), rev’d on other grounds, 340 S.W.3d 759, 767 (Tex. 2011).3


        Although Appellant did not raise the issue of whether there is sufficient evidence in the

record to support inclusion of court-appointed attorney’s fees as a cost,4 we note that the

record must reflect some factual basis to support the determination that the defendant is

capable of paying court-appointed attorney’s fees. Armstrong, 340 S.W.3d at 765-67. See

3
 We note that Armstrong, 320 S.W.3d 479, had not been finally decided in this Court or the Court of Criminal
Appeals when Appellant filed her brief. When Appellant’s brief was filed here, there was a motion for rehearing
pending in the original Armstrong appeal before this Court.
4
 Courts of appeals may review unassigned error in criminal cases, particularly where the record discloses error
that should be addressed in the interest of justice. Hammock v. State, 211 S.W.3d 874, 878 (Tex.App.—
Texarkana 2006, no pet.). Where, as here, the error appears on the face of the judgment and does not involve
the merits of any criminal trial, but instead solely addresses the clerical correctness of the judgment, we find that
the interest of justice allows that we address the issue. Perez v. State, 323 S.W.3d 298, 307 (Tex.App.—Amarillo
2010, pet. ref’d).

                                                         7
Perez v. State, 323 S.W.3d 298, 307 (Tex.App.—Amarillo 2010, pet. ref’d); 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 2009, no pet.).


       The Bill of Costs reflects an assessment of court-appointed attorney’s fees totaling

$2,565.60 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 the trial court found Appellant indigent and unable to

afford the cost of legal representation before any legal proceeding in December 2008, and

after the punishment trial in February 2010. Unless a material change in his or her financial

resources occurs, once a criminal defendant has been found to be indigent, he or she 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 immediately following rendition of judgment Appellant was indigent and

qualified for court-appointed counsel, we presume her financial status has not changed.


      The record in this case does not contain a pronouncement, determination, or finding

that Appellant had financial resources that would enable her to pay all, or any part of, the fees

paid her court-appointed counsel, and we are unable to find any evidence to support such a

determination. Therefore, we conclude the Bill of Costs and/or order to pay attorney’s fees

was improper. See Mayer v. State, 309 S.W.3d 552, 555-56 (Tex.Crim.App. 2010). No trial

objection is required to challenge the sufficiency of the evidence regarding the defendant’s

ability to pay. Id. When the evidence does not support an order to pay attorney’s fees, the

proper remedy is to delete the order. Id. at 557. See also Anderson v. State, No. 03-09-

                                               8
00630-CR, 2010 Tex. App. LEXIS, at *9 (Tex.App.—Austin, July 1, 2010, no pet.) (modifying

judgment to delete court-appointed attorney’s fees). Accordingly, we modify the judgment to

delete the order obligating Appellant to pay court-appointed attorney’s fees.


                                          Conclusion


      Having modified the trial court’s judgment to delete the order obligating Appellant to pay

$2,565.60 in court-appointed attorney’s fees, the judgment, as modified, is affirmed.




                                                       Patrick A. Pirtle
                                                           Justice


Do not publish.




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