Eliseo Rene Zambrano v. State , 419 S.W.3d 387 ( 2010 )

NO. 07-10-0072-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
NOVEMBER 22, 2010
______________________________
ELISEO RENE ZAMBRANO, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B18071-0906; HONORABLE EDWARD LEE SELF, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
CONCURRING OPINION
While I agree with the conclusion reached by the majority, I write separately to
address an issue not raised by Appellant regarding the assessment of attorney's fees.1
The written judgment in this case orders the defendant to pay attorney's fees in the
1
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,
does not involve the merits of the trial, and is easily corrected by modifying the judgment, I believe that
the interest of justice dictates that we address the issue.
amount of $1,200. In order to assess attorney's fees, 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. Code Crim. Proc. Ann. art. 26.05(g) (Vernon
2009). 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.).
We are unable to find any evidence that would support a finding that Appellant
had financial resources that would enable him to pay all or any part of the fees paid his
court-appointed counsel. 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, I
would modify the judgment to delete the order to pay attorney's fees, and affirm the
judgment as modified
Patrick A. Pirtle
Justice
Do not publish.
2