William Gene Baker v. State ( 2010 )

NO. 07-10-0007-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
SEPTEMBER 22, 2010
______________________________
WILLIAM GENE BAKER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;
NO. 59,764-A; HONORABLE HAL MINER, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, William Gene Baker, was found guilty of assault causing bodily injury
to a family member1 enhanced following a bench trial and sentenced to seven years
confinement. Appellant's single point of error asserts the trial court abused its discretion
and denied Appellant both due process and equal protection under law by questioning
1
Tex. Penal Code Ann. § 22.01(b)(2) (Vernon Supp. 2009).
Appellant concerning an uncharged "bad act" during the guilt/innocence phase of trial.
We affirm.
Background
In July 2009, the Potter County Grand Jury indicted Appellant for intentionally,
knowingly, or recklessly causing bodily injury to Ruby Green, a member of Appellant's
family or a member of his household or a person with whom he was in a dating
relationship, by pushing her with his hands and causing her head to strike a doorknob.
The indictment also contained an enhancement paragraph alleging Appellant was
convicted of a prior felony offense, robbery, in the 181st District Court of Potter County,
Texas on July 15, 2005.
Appellant was tried by the bench on December 17, 2009. During the
guilt/innocence phase of the trial, the following exchange occurred between the trial
court, Appellant, and defense counsel as follows:
THE COURT: Mr. Baker, when you made that bond, you went in and
signed the bond, didn't you?
[APPELLANT]: Yes, sir.
THE COURT: And you were aware you weren't supposed to have
any contact with Ms. Green as a condition of your
bond; isn't that right?
[APPELLANT]: Oh, yes, sir.
THE COURT: But are you telling me today, under oath, you still had
contact with her despite that?
[APPELLANT]: Yes, Your Honor.
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[DEFENSE COUNSEL]: I would like the Court to admonish him. I've already
admonished him.
THE COURT: I just want to make sure. That is true?
[APPELLANT]: Yes, sir. I let her stay with me, yes.
THE COURT: Okay.
[DEFENSE COUNSEL]: I have no further questions of this witness. Thank
you, Your Honor.
Thereafter, the trial court found Appellant guilty and this appeal followed.
Discussion
To preserve an error on appeal, the record must show the appellant made a
timely, specific objection or motion to the trial court stating the grounds for the ruling
sought with sufficient specificity and complying with the rules of evidence and
procedure. See Tex. R. App. P. 33.1(a)(1). Here, the record shows Appellant's counsel
made no objection premised on due process or equal protection of law during the trial
court's questioning of Appellant. Thus, no error was preserved. Although Appellant's
counsel did request the trial court to admonish his client, this request came after
Appellant had answered the trial court's question in the affirmative and there was no
subsequent request to strike Appellant's response from the record. Accordingly, we
overrule Appellant's sole point of error. See Gutierrez v. State, 36 S.W.3d 509, 511
(Tex.Crim.App. 2001); Cobb v. State, 95 S.W.3d 664, 666 (Tex.App.--Houston [1st
Dist.] 2002, no pet.).
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Attorney's Fees
We also note an issue not raised by Appellant regarding the assessment of
attorney's fees.2 The written judgment in this case reflects the assessment of court-
appointed attorney's fees totaling $1,750.00, as costs of court. 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 legal
services provided. Tex. Crim. Proc. Ann. art. 26.05(g) (Vernon 2009). Here, the clerk's
record reflects the trial court found Appellant indigent and unable to afford the cost of
legal representation both before trial in May 2009, and again after trial in January 2010.
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) (Vernon Supp. 2009).
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 that his financial status has not changed.
Furthermore, the record must reflect some factual basis to support the
determination that the defendant is capable of paying attorney's fees. 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.).
2
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 the criminal trial, but instead solely addresses the clerical correctness of the
judgment, we find that the interest of justice dictate that we address the issue.
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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 that the 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. 03-09-00630-CR, 2010 Tex.App. LEXIS 5033, at
*9 (Tex.App.--Austin July 1, 2010, no pet.) (also modifying judgment to delete attorney's
fees). Accordingly, we modify the judgment to delete the order to pay attorney's fees.
CONCLUSION
Having modified the trial court's judgment to delete the order obligating Appellant
to pay $1,750.00 in attorney's fees, as modified, the judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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