TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-11-00721-CR
Austin Joel Trott, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
NO. 64135, HONORABLE JOE CARROLL, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant, Austin Joel Trott, pleaded guilty to the charge of theft of a firearm, a state jail felony with a statutory punishment range of six months to two years and a fine of up to $10,000. Tex. Penal Code Ann. § 31.03(a),(e)(4)(C) (West 2011). The trial court placed appellant on three years deferred-adjudication community supervision. Appellant was subsequently arrested for public intoxication and burglary of a motor vehicle. Appellant bonded out of jail and fled to Mexico before the State filed a motion to adjudicate. He remained in Mexico for two years before returning to Texas to confront his legal problems. He pleaded "true" to the allegations in the motion to adjudicate and requested continued community supervision. The trial court adjudicated appellant guilty and imposed a sentence of 18 months in state jail. The court also assessed court-appointed attorney's fees of $787.50 that appellant was to pay on release from his sentence. The record reflects that the trial court twice found appellant to be indigent. On appeal, appellant contests the assessment of attorney's fees and alleges that the trial court abused its discretion in imposing the jail sentence. We sustain appellant's first issue and modify the judgment to delete the attorney's fees award; we overrule his second issue and affirm the judgment of the trial court as modified.
DISCUSSION
Appellant first challenges the assessment of $787.50 for court-appointed attorney's
fees. The code of criminal procedure provides that if the court determines that a defendant has
sufficient financial resources to offset, in whole or in part, the costs of the legal services provided
to him, the court shall order him to pay the amount it finds the defendant is able to pay. Tex. Code
Crim. Proc. Ann. art. 26.05(g) (West 2011). An accused whom the trial court has found to be
indigent is presumed to remain indigent for the rest of the proceedings in the case absent "a material
change in the defendant's financial circumstances." Id. art. 26.04(p) (West 2011). The defendant's
financial resources and ability to pay are explicit elements of the statute that must be supported by
record evidence. Mayer v. State,
Appellant argues in his second issue that the trial court abused its discretion in
imposing a sentence of 18 months in a state jail because such a sentence violates the objectives of
the system set up by the penal code, one of which is rehabilitation. See Tex. Penal Code Ann.
§ 1.02(1)(B) (West 2011). Appellant did not raise this issue in the trial court. He argues that the
problem was so apparent from the context of the case that a specific objection was unnecessary to
preserve the issue for appeal. See Tex. R. App. P. 33.1 (a)(1)(A). We disagree. Appellant relies on
cases in which the courts of appeals addressed allegations of bias or fundamental mistakes by
the trial court, such as the trial court entering a deadly weapon finding when the jury did not. See,
e.g., Edwards v. State,
In any event, we do not think the trial court abused its discretion. Generally, if there
is record evidence to support the trial judge's sentence, we will not reverse absent a showing of
abuse of discretion. Jackson v. State,
CONCLUSION
Having sustained appellant's first issue and overruled his second issue, we modify the trial court's judgment to delete the award for attorney's fees and affirm the judgment as modified.
__________________________________________
J. Woodfin Jones, Chief Justice
Before Chief Justice Jones, Justices Rose and Goodwin
Modified and, as Modified, Affirmed
Filed: November 7, 2012
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