Antione Deshan Gentry v. State

NO. 07-07-0164-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

AUGUST 24, 2009

______________________________

ANTIONE DESHAN GENTRY, APPELLANT

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

NO. 54,585-E; HONORABLE ABE LOPEZ, JUDGE

_______________________________

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

MEMORANDUM OPINION

Â Â Â Â Â Â Â Â Â Â Appellant Antione Deshan Gentry plead guilty to possession of a controlled substance and brings this appeal from the trial courtâs denial of his motion to suppress. Through one point of error, appellant contends that by denying his motion, the trial court abused its discretion. We affirm.

Background

Â Â Â Â Â Â Â Â Â Â After a traffic stop, appellant was charged by indictment with intentionally and knowingly possessing cocaine in an amount of one gram or more but less than four grams. The indictment later was amended to include an enhancement paragraph based on a prior felony conviction. Thereafter, appellant filed a motion to suppress the evidence found during the stop, arrest, and search. Following a hearing, the trial court denied appellantâs motion to suppress. Appellant, pursuant to a plea agreement, plead guilty to the offense charged and was sentenced to nine years of imprisonment and a $1,000 fine. This appeal followed.

Â Â Â Â Â Â Â Â Â Â One witness, an Amarillo police officer, testified at the hearing on appellantâs motion to suppress. He testified that about noon on the day in question he saw a vehicle with a temporary tag traveling ahead of him. He then observed the driver, identified later as appellant, make a wide right turn onto Sanborn Street. Concluding he had observed two traffic violations, one involving the tag and the other involving the wide turn, the officer conducted a traffic stop. When he made contact with appellant and requested his driverâs license, appellant told him he did not have one. Appellant then got out of the car and the officer requested consent to search him because â[h]e was shakingâ and said he didnât have any identification.

Â Â Â Â Â Â Â Â Â Â During his search of appellant, the officer located a wallet containing identification. The officer conducted a check on appellantâs identification, finding seven outstanding warrants. The officer placed appellant under arrest on the warrants and double-checked the dealerâs tags on the car to ensure the vehicle was not stolen. The officer determined that the tag was legitimate. The officer then searched the vehicle incident to arrest and found narcotics that resulted in appellantâs present prosecution.

Analysis

Â Â Â Â Â Â Â Â Â Â In appellantâs point of error, he contends the trial court abused its discretion by denying the motion to suppress evidence derived from the traffic stop as there was no âinherently illegal actâ to justify the warrantless stop. Appellant does not appear to contest his arrest based on the outstanding warrants or the search incident to arrest. Instead, he argues the initial stop was not based on reasonable suspicion. We will address only that contention.

Â Â Â Â Â Â Â Â Â Â Â Â A trial court's ruling on a motion to suppress is reviewed for abuse of discretion. Oles v. State, 993 S.W.2d 103, 106 (Tex.Crim.App.1999). In a suppression hearing, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App.2000). Under the applicable standard, we will review the record evidence and all reasonable inferences therefrom in the light most favorable to the trial court's ruling. Villarreal v. State, 935 S.W.2d 134, 139 (Tex.Crim.App.1996); Taylor v. State, 20 S.W.3d 51, 54-55 (Tex.App.â Texarkana 2000, pet. ref'd).

Â Â Â Â Â Â Â Â Â Â In reviewing trial court rulings on matters such as motions to suppress, appellate courts afford almost total deference to trial court determinations of historical facts. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). However, detention and reasonable suspicion are by nature legal concepts and are properly subject to de novo review. Hunter v. State, 955 S.W.2d 102, 107 (Tex.Crim.App.1997); Sanders v. State, 992 S .W.2d 742, 744 (Tex.App.âAmarillo 1999, pet. ref'd). Accordingly, for purposes of Fourth Amendment analysis we give appropriate deference to the trial court's determination of historical facts, but we review the decision of the trial court de novo as to whether the historical facts, viewed from the standpoint of an objectively reasonable person so situated as was the police officer, amount to âreasonable suspicionâ sufficient to justify an investigatory detention. Ornelas v. United States, 517 U.S. 690, 697-99, 116 S. Ct. 1657, 1661-62, 134 L. Ed. 2d 911 (1996); Guzman, 955 S.W.2d at 89.

Â Â Â Â Â Â Â Â Â Â At the hearing, the officer testified that appellantâs vehicle first attracted his attention because it had a dealerâs or paper tag rather than a regular license plate. He noted that such tags may be suspicious, particularly if they are unreadable, because the police department commonly finds stolen cars with temporary tags covering the hard plates. He also testified that because of the variety of types of temporary tags, it is hard to tell exactly what type of plate is on a car when driving behind it. Here, the officer said the tag was attached only in one place, causing it to flap and making it difficult to read in traffic.

Â Â Â Â Â Â Â Â Â Â With respect to appellantâs right turn, the officer stated appellant turned into the center of Sanborn Street. The record indicates the residential street had no center stripe. The officer said appellant was âstraddlingâ the center of the road as he turned, and agreed with the prosecutor that the center of appellantâs car was in the center of the road.

Â Â Â Â Â Â Â Â Â Â Evidence showed that a pothole or deteriorated portion of the asphalt roadway was located on the right side of the roadway, about half a block, or â12 housesâ from the intersection at which appellant made his turn. The officer said he stopped appellant based on both of his observed violations.

Â Â Â Â Â Â Â Â Â Â While a police officer must have probable cause for a full custodial arrest, a mere stop of an individual for the purposes of investigation does not require such substantial justification. Gajewski v. State, 944 S.W.2d 450, 452 (Tex.App.âHouston [14^th Dist.] 1997, no pet.), citing Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.CT. 1868, 1879-81, 20 L. Ed. 2d 889 (1968). Thus, for a temporary detention, an officer must have reasonable suspicion, shown through specific articulable facts, that some unusual activity is or has occurred, that the detained person is connected with the activity, and that the unusual activity is related to the commission of a crime. Hoag v. State, 728 S.W.2d 375, 378-80 (Tex.Crim.App. 1987). This determination is based on the totality of the circumstances. Garcia v. State, 43 S.W.3d 527 (Tex.Crim.App. 2001). There is no requirement that a particular statute be violated in order to give rise to reasonable suspicion. Gajewski, 944 S.W.2d at 452; Lockett v. State, No. 01-08-00225-CR, 2009 WL 40234, *3 (Tex.App.âHouston [1^st Dist.] Jan. 8, 2009, no pet.) (mem. op., not designated for publication). The subjective intent of the officer is irrelevant to the determination of the existence of reasonable suspicion; instead, we apply an objective standard, inquiring only whether the evidence reveals an objective basis for the stop. Garcia, 43 S.W.3d at 530; Powell v. State, 5 S.W.3d 369, 376-77 (Tex.App.âTexarkana 1999, pet. refâd), cert. denied, 529 U.S. 1116, 120 S. Ct. 1976, 146 L. Ed. 2d 805 (2000).

Â Â Â Â Â Â Â Â Â Â We find the trial court properly could have concluded the officer testified to facts giving rise to a reasonable suspicion appellant violated a traffic law in the manner of his right turn. Appellant and the State both refer to section 545.101 of the Transportation Code, which requires a driver to make right turns as closely as practicable to the right-hand curb or edge of the roadway. Tex. Transp. Code Ann. Â§ 545.101(a) (Vernon 1999). At the hearing, appellant relied on the obstruction in the road to explain his wide turn. See Tex. Transp. Code Ann. Â§ 545.051(a)(2) (Vernon 1999) (requiring driving on the right half of the roadway unless, inter alia, an obstruction necessitates moving to the left). But evidence shows that the pothole or deteriorated asphalt was not located at the intersection but was â12 housesâ down the street from the intersection. The trial court was free to determine the weight to be given the evidence of an obstruction in the road. There also was some uncertainty in the testimony as to whether appellantâs vehicle was merely near the center of Sanborn or was in the center of the street, but the trial court was free also to accept the testimony he was âstraddlingâ the center. See Guzman, 955 S.W.2d at 89; Ross, 32 S.W.3d at 855-56.

Â Â Â Â Â Â Â Â Â Â Appellant contends our determination of the reasonableness of the stop should be controlled by Hernandez v. State, 983 S.W.2d 867, 869 (Tex.App.âAustin 1998, pet. refâd). There, the officer stopped a vehicle immediately after observing it drift briefly over the white line dividing two lanes of traffic traveling in the same direction. The court concluded that this single brief instance of drifting slightly into an adjacent lane of traffic did not alone provide the officer with reasonable suspicion that a criminal traffic offense had been committed. Id. A similar conclusion was reached in Ehrhart v. State, 9 S.W.3d 929 (Tex.App.âBeaumont 2000, no pet.) involving an allegation of lane straddling, and State v. Tarvin, 972 S.W.2d 910, 912 (Tex. App.âWaco 1998, no pet.) involving an allegation of lane drifting. As the State points out, each of these cases involved suspected violations of the statute requiring drivers to drive within a single lane of traffic. See Tex. Transp. Code Ann. Â§ 545.060 (Vernon 1999). That statute further provides a driver may not move from the single lane unless that movement can be made safely. Id. at 545.060(a)(2). The holdings of the cases on which appellant relies depended at least in part on the absence of evidence the defendantâs action of crossing a lane dividing line was unsafe. See, e.g., Hernandez, 983 S.W.2d at 870-71. Transportation Code Â§ 545.101, on which the State relies here, contains no exception for deviations made safely. See Tex. Transp. Code Ann. Â§ 545.101(a) (Vernon 1999). Appellantâs cited cases are thus inapposite.

Â Â Â Â Â Â Â Â Â Â The evidence presented at the hearing on appellantâs motion to suppress supports the trial courtâs ruling. Accordingly, we overrule appellantâs sole point of error on appeal and affirm the trial courtâs judgment.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â James T. Campbell

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice

Do not publish.

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NO. 07-09-00314-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

APRIL 6, 2011

JAMMIE LEE MOORE, APPELLANT

THE STATE OF TEXAS, APPELLEE

FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

NO. 57,934-E; HONORABLE DOUGLAS WOODBURN, JUDGE

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

OPINION

Â Â Â Â Â Â Â Â Â Â Â Appellant, Jammie Lee Moore, was convicted of possession of methamphetamine in an amount of four grams or more but less than 200 grams,[1] enhanced by a plea of true to two prior felony convictions.Â The jury sentenced appellant to confinement in the Institutional Division of the Texas Department of Criminal Justice for a period of 50 years.Â The trial court ordered appellantÂs sentence to be served after he had completed serving his sentence in Cause No. 55,555-E.Â Appellant has appealed, and we will affirm the judgment of the trial court as modified.

Factual and Procedural Background

Â Â Â Â Â Â Â Â Â Â Â Appellant was convicted of possession of methamphetamine in an amount of four grams or more but less than 200 grams and sentenced, after a plea of true to two prior felony convictions, to confinement for 50 years in the ID-TDCJ.Â Appellant has not attacked the juryÂs finding of guilt; therefore, only such of the factual background as is relevant to the issues raised will be recited in this opinion.

Â Â Â Â Â Â Â Â Â Â Â After the jury had found appellant guilty of the indicted offense and appellant pleaded true to the prior felony convictions, the trial court proceeded to hear testimonial evidence in the punishment portion of the trial.Â During this part of the trial, the State called Leo Ramirez, an employee of the Texas Department of Criminal Justice (TDCJ), as a witness.Â Ramirez described his position as a sergeant in the security threat group of the TDCJ.Â Further, Ramirez testified that his main job involved the subject of gang intelligence.Â As part of his job, Ramirez stated he was familiar with the reports generated at TDCJ that referenced an inmateÂs participation in a prison gang.Â Eventually, Ramirez testified that appellant was a member of the Aryan Brotherhood of Texas.Â Upon cross-examination, Ramirez testified that appellant was transferred to another unit prior to his last parole in an attempt to disassociate him from the gang.Â However, Ramirez testified that, according to the records of TDCJ, appellant did not successfully complete his disassociation program.Â Â

Â Â Â Â Â Â Â Â Â Â Â During the conference on the courtÂs charge on punishment, appellantÂs trial counsel requested that the jury be informed that the sentence imposed would be a mandatory cumulative sentence case because of appellantÂs prior conviction in Cause No. 55,555-E for the offense of possession of a controlled substance in a drug-free zone.[2]Â The trial court denied the requested instruction. Â The jury returned a punishment verdict of confinement for 50 years.Â

Â Â Â Â Â Â Â Â Â Â Â Following the dismissal of the jury, the trial court was preparing to sentence appellant to confinement for 50 years in the ID-TDCJ when the State reminded the court that the sentence was subject to the mandatory cumulative sentencing provisions of the Texas Health & Safety Code.Â See Tex. Health & Safety Code Ann. Â§ 481.134(h) (West 2010).[3]Â The trial court then pronounced the sentence and the cumulative nature of the sentence without objection from appellant.

Â Â Â Â Â Â Â Â Â Â Â Appellant has now appealed bringing forth six issues to this court.Â AppellantÂs issues contend that the trial court erred in: 1) cumulating appellantÂs sentence in the instant case with another sentence, 2) refusing appellantÂs requested instruction in the punishment charge, 3) allowing evidence before the jury about appellantÂs membership in a prison gang, and 4) assessing costs and attorneys fees to be repaid.Â We will affirm the judgment of the trial court in all aspects, except we will eliminate the order that appellant repay the county the cost of his appointed attorney.

Cumulative Sentencing

Â Â Â Â Â Â Â Â Â Â Â AppellantÂs first issue implies that the trial courtÂs cumulation of appellantÂs sentence was erroneous due to evidentiary sufficiency.Â However, upon closer reading, it becomes apparent that appellant has taken that approach for one reason only: there has been a complete procedural default on any issue related to the trial courtÂs cumulative sentence order.Â See Tex. R. App. P. 33.1(a).Â Appellant failed to voice any objection at the time he was ordered to serve his 50 year sentence after the completion of the sentence in Cause No. 55,555-E. Â To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Lovill v. State, 319 S.W.3d 687, 691-92 (Tex.Crim.App. 2009).Â

Â Â Â Â Â Â Â Â Â Â Â In order to circumvent the consequences of failing to object to the trial courtÂs action in cumulating the sentences, appellant now contends that, because there was no evidence that the punishment in Cause No. 55,555-E was increased via the drug-free zone finding, we must reform the judgment to strike the cumulative effect of the trial courtÂs order.Â AppellantÂs point is utterly without merit.Â The only authority appellant offers consists of authority for the very general proposition that challenges to the evidentiary sufficiency to support a verdict need not be preserved by a contemporaneous objection.Â See Mayer v. State, 309 S.W.3d 552, 556 (Tex.Crim.App. 2010) (dealing with a failure to object to a restitution order for repayment of attorney fees).Â Appellant cites this Court to no authority for the proposition that he can now attack a jury finding from a previous trial on a sufficiency basis.

Â Â Â Â Â Â Â Â Â Â Â AppellantÂs sentence was mandatorily cumulated pursuant to section 481.134(h) which makes mandatory that punishment for a crime committed under the section may not run concurrently with Âa conviction under any other criminal statute.ÂÂ See Â§ 481.134(h).Â ÂThis sectionÂ refers to ÂDrug-Free Zones.Â Id.Â The conviction that appellant is now appealing was not based upon section 481.134; therefore, it falls into the category of Âa conviction under any other criminal statute.ÂÂ See Williams v. State, 253 S.W.3d 673, 678 (Tex.Crim.App. 2008).Â So, appellant was facing sentencing for an offense other than a drug offense committed in a drug-free zone.Â As the record reflects, the conviction in Cause No. 55,555-E was for possession of a controlled substance in a drug-free zone.Â The above referenced mandatory cumulative sentencing was, therefore, before the trial court.Â Â§ 481.134(h).Â When the trial judge cumulated appellantÂs sentences, he was applying a mandatory provision of the relevant statute.Â The plain meaning of the statute is that the trial court has no discretion to do more than he did: cumulate the sentences.Â See Thompson v. State, 236 S.W.3d 787, 792 (Tex.Crim.App. 2007) (appellate courts must give effect to the plain meaning of the statute, unless the plain meaning leads to absurd consequences).Â The plain meaning is as reflected above.Â AppellantÂs first issue is overruled.

Jury Instruction

Â Â Â Â Â Â Â Â Â Â Â In his second issue, appellant contends that the trial court erred when it refused to give a requested instruction to the jury that appellantÂs sentence would have to be served consecutively.Â AppellantÂs theory is that the fact that appellant had to serve his sentence consecutively was something the jury should be allowed to consider in order to make an informed decision about the punishment to be given to appellant.Â Appellant cites the Court to Haliburton v. State, 578 S.W.2d 726 (Tex.Crim.App. 1979), for the apparent proposition that the requested instruction should have been given.Â Haliburton involved a jury sending a note out to the trial court during deliberations inquiring about whether or not the defendant would serve the sentences in the two cases tried together concurrently.Â Id. at 728.Â The trial judge answered in the affirmative.Â Id.Â After being convicted, the defendant appealed claiming that it was an abuse of discretion for the trial court to have given the supplemental charge and that the error was harmful.Â The Court of Criminal Appeals held that the trial court did not abuse its discretion in giving the supplemental charge regarding whether the sentences would be served concurrently.Â Id. at 729.

Â Â Â Â Â Â Â Â Â Â Â From this holding, appellant now asks this Court to rule that the converse action of a trial courtÂrefusing to give a charge advising the jury that the sentences would be served consecutivelyÂwould be error.Â This issue has been addressed by other courts of appeals since the Haliburton decision.Â In Levy v. State, 860 S.W.2d 211, 213 (Tex.App.ÂTexarkana 1993, pet. refÂd), the Texarkana court held that refusal to answer the juryÂs question about whether sentences being considered would run concurrently or consecutively was not error.Â As the citation reflects, the Texas Court of Criminal Appeals refused a petition for review in the case.Â Such was the decision in Stewart v. State, 221 S.W.3d 306, 316 (Tex.App.ÂFort Worth 2007, no pet.), in which the court held that the refusal to advise the jury that the sentence in question would be served consecutively was not error.Â In Clay v. State, 102 S.W.3d 794, 798 (Tex.App.ÂTexarkana 2003, no pet.), the Texarkana court again visited this issue and said it would have been error for the trial court to give the requested instruction about the sentences being served consecutively.Â We believe that the opinions referenced above reflect the correct state of the law.Â Accordingly, we overrule appellantÂs second issue.

Gang Membership

Â Â Â Â Â Â Â Â Â Â Â During the punishment phase of the trial, the State proffered the testimony of Leo Ramirez, an employee of the TDCJ.Â During his testimony, Ramirez testified without objection that appellant was a member of the Aryan Brotherhood of Texas.Â There was no request to limit the juryÂs consideration of RamirezÂs testimony at the time it was admitted.Â Subsequently, when the courtÂs charge on punishment was prepared, there was no request from appellant to limit the consideration of this evidence.Â In appellantÂs third issue, he now complains that the failure of the trial court to instruct the jury that such evidence could be considered only for purposes of appellantÂs reputation and character was egregious error.Â The record also reveals that the StateÂs witness was only allowed to testify about appellantÂs membership in the gang.Â Because the trial court sustained appellantÂs objections, Ramirez was not allowed to testify about any of the gangÂs alleged activities.

Â Â Â Â Â Â Â Â Â Â Â Initially, we must determine if appellant has waived any alleged error by either failing to object to the evidence that appellant was a member of the Aryan Brotherhood of Texas when it was offered.[4]Â After the evidence was admitted, appellant did not request that the juryÂs consideration of RamirezÂs testimony be limited in any manner.Â Finally, there was no request for any instruction in the courtÂs charge on punishment.

Â Â Â Â Â Â Â Â Â Â Â First, we address the admission of the evidence.Â We review a trial courtÂs decision to admit or exclude evidence under an abuse of discretion standard of review.Â See Rodriguez v. State, 203 S.W.3d 837, 841 (Tex.Crim.App. 2006).Â However, before we even get to the application of that standard of review, we must ascertain whether the question of the admissibility of the evidence has been preserved for appeal.Â To preserve a question regarding admissibility of evidence for appeal, the party challenging the admission must make a timely objection that places the trial court on notice as to what the objection is.Â See Tex. R. App. P. 33.1(a); Butler v. State, 872 S.W.2d 227, 236 (Tex.Crim.App. 1994).Â Therefore, it appears that appellant has waived any objection to the complained of testimony.

Â Â Â Â Â Â Â Â Â Â Â Next, even if we assume that appellant can now lodge some appellate objection to the admission of the testimony, we are faced with the fact that appellant also did not request any limiting instruction at the time the evidence was admitted.Â In Williams v. State, the Texas Court of Criminal Appeals addressed that issue and held that the failure to request a limiting instruction at the time the evidence was admitted means that the evidence can be used by the jury for all purposes and relieves the trial judge of any requirement of giving a limiting instruction in the courtÂs charge.Â 273 S.W.3d 200, 230 (Tex.Crim.App. 2008).Â Accordingly, the failure of the trial court to give a limiting instruction is not error.Â

Â Â Â Â Â Â Â Â Â Â Â Assuming, arguendo, that the failure of appellant to object to admission of the evidence at issue and the failure to request a limiting instruction on the evidence at the time of admission of the same does not bar this CourtÂs ability to consider his argument, appellant has still failed to demonstrate that the failure to give the instruction limiting the juryÂs use of the gang membership was egregious error.Â For purposes of our analysis, egregious error is error that denies appellant a fair and impartial trial.Â See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984).Â To support his position that the failure of the trial court to give a limiting instruction was egregious, appellant cites the Court to Dawson v. Delaware, 503 U.S. 159, 163, 112 S.Ct. 1093, 116 L. Ed. 2d 309 (1992).Â However, Dawson is distinguishable from our case in a number of ways.Â Initially, we observe that Dawson was a murder case and the evidence of gang membership was offered during the punishment phase while the jury was considering life in prison or the death sentence.Â Id. at 161.Â Second, in Dawson, after the State had given notice of intent to use the appellantÂs gang affiliation against him in the punishment phase, appellant objected to the admission of the evidence.Â Id. at 162.Â Before the punishment phase of the trial began, the parties entered into a stipulation that the State would not call their expert witness on gang activities and appellant would agree to a limited stipulation about the Aryan Brotherhood being a white racist prison gang and that appellant had Aryan Brotherhood tattooed on his hand.Â Id.Â The essence of the U.S. Supreme CourtÂs ruling was that the narrowness of the stipulation left the evidence totally without relevance to the sentencing procedure.Â Â Id. at 165.Â Because the evidence was not relevant, it should not have been admitted.Â However, the Court in Dawson did not address the issue of harm, because that issue was not before it.Â Id. at 168-69.Â Appellant simply concludes, without any real analysis, that egregious harm is apparent.Â

Â Â Â Â Â Â Â Â Â Â Â However, such is not the case.Â In the case before the Court, appellant was convicted of a second-degree felony offense enhanced by two prior felony convictions.Â These facts subjected appellant to a punishment range of imprisonment in the ID-TDCJ for life or any term of not more than 99 years or less than 25 years.Â The jury assessed a sentence of 50 years.Â When trying to ascertain if an appellant has suffered egregious harm, we are instructed to review the entire record to determine if appellant has not had a fair and impartial trial.Â Almanza, 686 S.W.2d at 171.Â Our review of the record reveals that appellant received a 50-year sentence, which is approximately the mid-range of the punishment range possible.Â Our review of the final argument reveals that the State mentioned the Aryan Brotherhood one time in final arguments.Â The State concentrated its argument on the fact that this was appellantÂs third conviction.Â Therefore, we find that, even if appellant did not waive the issue procedurally, there has been no showing of egregious harm.Â Id.Â AppellantÂs issue is overruled.

Attorney Fees and Court Costs

Â Â Â Â Â Â Â Â Â Â Â AppellantÂs fourth, fifth, and sixth issues attack various aspects of the trial courtÂs order regarding costs and, specifically, attorney fees.Â First, appellant contends that the trial court must orally pronounce the requirement to reimburse attorney fees before the same can be included in the judgment.Â He next contends that a clerkÂs action of attaching a certified copy of the bill of costs that includes the attorney fees provision to the judgment does not constitute an order to pay costs.Â Finally, he contends that there is no evidence that appellant has the ability to repay the county for the cost of his attorney.Â

Â Â Â Â Â Â Â Â Â Â Â We will sustain appellantÂs final issue.Â As we have held previously, the requirement that a recipient of legal services repay the county the costs of an appointed attorney must be based on some evidence that the recipient have the financial resources to offset some or all of the cost of appointed counsel.Â See Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2010); Mayer v. State, 274 S.W.3d 898, 901 (Tex.App.ÂAmarillo 2008), affÂd, 309 S.W.3d 552 (Tex.Crim.App. 2010).Â In Mayer, after determining that there was no evidence to support the order to pay attorney fees, we ordered the fees stricken from the judgment.Â Id. at 902.Â The Texas Court of Criminal Appeals affirmed the decision to strike the offending attorney fees from the judgment rather than remanding the case for a new hearing on punishment.Â Mayer, 309 S.W.3d at 557.Â Accordingly, we sustain appellantÂs sixth issue and order that the requirement to repay the court appointed attorney fees be deleted from the judgment.Â

Conclusion

Â Â Â Â Â Â Â Â Â Â Â We affirm the judgment of the trial court as modified regarding the repayment of attorney fees.

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Mackey K. Hancock

Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice

Publish.Â

[1] See Tex. Health & Safety Code Ann. Â§ 481.115(d) (West 2010).

[2] AppellantÂs conviction in Cause No. 55,555-E was for possession of a controlled substance, methamphetamine, in an amount of more than four grams but less than 200 grams.Â See Tex. Health & Safety Code Ann. Â§ 481.115(d).Â Further, appellantÂs possession occurred within a drug-free zone.Â See id. Â§ 481.134(c).Â Appellant was sentenced to 30 years confinement in the ID-TDCJ in that case.

[3] Further reference to the Texas Health & Safety Code Annotated will be by reference to Âsection ___Â or ÂÂ§ ___Â.

[4] AppellantÂs only objection came when Ramirez tried to testify about what the constitution of the Aryan Brotherhood said and what the function of the gang was inside the prison.

Antione Deshan Gentry v. State

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