ACCEPTED 03-14-00616-CR 3888712 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/24/2015 3:34:55 PM JEFFREY D. KYLE CLERK CAUSE NO. 03-14-00616-CR
_________________________________________________ FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS IN THE COURT OF APPEALS 1/26/2015 12:00:00 AM FOR THE THIRD DISTRICT OF TEXAS JEFFREY D. KYLE AUSTIN DIVISION Clerk _________________________________________________
ALEXIS MARIE IRELAND § § v. § § STATE OF TEXAS §
_______________________________________________
APPELLANT’S BRIEF _______________________________________________
Justin Bradford Smith Texas Bar No. 24072348 Harrell, Stoebner, & Russell, P.C. 2106 Bird Creek Drive Temple, Texas 76502 Phone: (254) 771-1855 FAX: (254) 771-2082 Email: justin@templelawoffice.com
ATTORNEY FOR APPELLANT
ORAL ARGUMENT NOT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellant Alexis Marie Ireland
Appellant’s Counsel Justin Bradford Smith Harrell, Stoebner, & Russell, P.C. 2106 Bird Creek Drive Temple, Texas 76502 Phone: (254) 771-1855 FAX: (254) 771-2082 Email: justin@templelawoffice.com
Appellant’s Trial Counsel Jack Holmes 1610 South 31st Street, Suite 102, PMB 235 Temple, TX 76504
Appellee State of Texas
Appellee’s Trial Counsel Leslie McWilliams Bell County District Attorney P.O. Box 540 Belton, Texas 76513 Telephone: (254) 933-5215 Fax: (254) 933-5238
Appellee’s Appellate Counsel Bob Odom Bell County District Attorney’s Office Email: DistrictAttorney@co.bell.tx.us
TABLE OF CONTENTS
Identity of Parties and Counsel…………………………..………………………... 2
Table of Contents……………………………………….………………………..3-4
Index of Authorities…………………………………….………………………..5-6
Statement of the Case……………………………………….……………………...7
Issues Presented….……………..………....…………………….………………..7-8
ISSUE ONE: The judgment must be vacated as to restitution and a new hearing ordered on the amount of restitution because the evidence is insufficient to support a factual basis for the full amount of restitution ordered in the written judgment, and the record does not otherwise conclusively establish the amount of restitution owed.……………....…..……….7
ISSUE TWO: The judgment must be vacated as to court costs and a new hearing ordered as to the amount owed because the record suggests some payments were made towards court costs, but the precise amount is unclear, and one cost appears without a statutory basis……………………...................7-8
Statement of Facts…………………………………..…………………………..8-11
Summary of the Argument……………………………..……………………...11-14
ISSUE ONE: The judgment must be vacated as to restitution and a new hearing ordered on the amount of restitution because the evidence is insufficient to support a factual basis for the full amount of restitution ordered in the written judgment, and the record does not otherwise conclusively establish the amount of restitution owed.……………....…..……...11
Argument…………………………………………………………………........14-24
Standard of Review and Applicable Law…...…………………………………14-16
Application………………………………………………..…………………...17-24
Conclusion………………………………………………………………………...24
Summary of the Argument…………………………………………………….24-25
ISSUE TWO: The judgment must be vacated as to court costs and a new hearing ordered as to the amount owed because the record suggests some payments were made towards court costs, but the precise amount is unclear, and one cost appears without a statutory basis……………………....................24
Argument………………………………………………………………………25-29
Standard of Review and Applicable Law…...…………………………………25-26
Application…………………………………………………………………….26-29
Conclusion………………………………………………………………………...29
Prayer…………………..…………………………………………………….........29
Certificate of Compliance………………………………………………………....30
Certificate of Service……………………………………………………………...31
INDEX OF AUTHORITIES
Texas Court of Criminal Appeals:
Burt v. State, 396 S.W.3d 574 (Tex. Crim. App. 2013)……………………………………………….16, n. 1
Burt v. State, 445 S.W.3d 752 (Tex. Crim. App. 2014)……………………………..………………15-18, 23
Brewer v. State, No. 1270-03, 2004 WL 3093224 (Tex. Crim. App. May 19, 2004) (unpublished)………………………19, n.2
Campbell v. State, 5 S.W.3d 693 (Tex. Crim. App. 1999)…………………………………………………….16
Cartwright v. State, 605 S.W.2d 287 (Tex. Crim. App. 1980)………………………………………………...14, 16
Cole v. State, 578 S.W.2d 127 (Tex. Crim. App. 1979)…………………………………………………….22
Davis v. State, 368 S.W.2d 368 (Tex. Crim. App. 1998)………………………………………………...14, 17
Ex parte Cavazos, 203 S.W.3d 333 (Tex. Crim. App. 2006) (orig. proceeding)………………….................15, 17
Gonzalez v. State, 117 S.W.3d 831 (Tex. Crim. App. 2003)…………………………………………………….14
Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014)…………………………………………….25-27 n. 4
Moff v. State, 131 S.W.3d 485 (Tex. Crim. App. 2004)…………………………………………………….16
Taylor v. State, 131 S.W.3d 497 (Tex. Crim. App. 2004)…………………………………………..…14-15, 17
Weir v. State, 278 S.W.3d 364 (Tex. Crim. App. 2006)………………………………………………...15, 17
Texas Courts of Appeals:
Alexander v. State, 301 S.W.3d 361 (Tex. App.—Fort Worth 2009, no pet.)………………………………..15, 17
O’Neal v. State, 426 S.W.3d 242 (Tex. App.—Texarkana 2013, no pet.)…………………………………….14
Rusk v. State, 440 S.W.3d 694 (Tex. App.—Texarkana 2013, no pet.)…………………………………22-23
Sauceda v. State, 309 S.W.3d 767 (Tex. App.—Amarillo 2010, pet. ref’d)………………………………..15, 17
Tschirhart v. Tschirhart, 876 S.W.2d 507 (Tex. App.—Austin 1994, no writ)………………………………..20, 27 n. 4
Statutes/Rules:
Tex. Code Crim. Proc. Ann. 42.03, Section 1(a)………………………………….15
Tex. Code Crim. Proc. Ann. art. 42.12, Section 9(a)……………………………..19
Tex. Code Crim. Proc. Ann. art. 42.12, Section 9(j)….……………………...19 n. 2
Tex. Code Crim. Proc. Ann. art. 42.22……………………………………………28
Tex. Gov’t Code Section 103.024………………………………………………..28
STATEMENT OF THE CASE
Nature of the Case: This is an appeal from the sentence imposed following an adjudication of guilt and revocation of community supervision. (VII R.R. at 6-7). In 2012, the trial court placed Appellant on deferred adjudication for five years for forgery by passing. (I C.R. at 28) (VI R.R. at 4). The State filed multiple motions to adjudicate, with the most recent motion being filed in 2014. (I C.R. at 33-35;56- 58; 71-73).
Judge/Court: Judge John Gauntt, 27th District Court, Bell County.
Pleas: Appellant pled true and the trial court held a sentencing hearing. (VI R.R. at 8) (VII R.R. at 1-9) (I C.R. at 82- 84).
Trial Court Disposition: Without hearing evidence, the trial court adjudicated Appellant guilty and sentenced her to two years in the state jail. (VII R.R. at 4; 7). The written judgment imposes $1,922.57 in restitution and $572.00 in court costs. (I C.R. at 92-93).
ISSUES PRESENTED
ISSUE ONE: The judgment must be vacated as to restitution and a new
hearing ordered on the amount of restitution because the evidence is insufficient to
support a factual basis for the full amount of restitution ordered in the written
judgment, and the record does not otherwise conclusively establish the amount of
restitution owed.
ISSUE TWO: The judgment must be vacated as to court costs and a new
hearing ordered as to the amount owed because the record suggests some payments
were made towards court costs, but the precise amount is unclear, and one cost
appears without a statutory basis.
STATEMENT OF FACTS
After being charged by information with forgery by passing (I C.R. at 5-6),
Appellant pled guilty and received five years deferred adjudication. (II R.R. at 6;
III R.R. at 5-8); (I C.R. at 14-18; 28-31). The court’s January 24, 2012 order
deferring adjudication orders restitution in the amount of $1,922.57, (I C.R. at 30),
which is the amount the court orally pronounced, (III R.R. at 6), payable in
increments of $35.00 per month, and court costs in the amount of $246.00, payable
in increments of $10.00 per month. (I C.R. at 30). The court also subjected
Appellant to the typical conditions of community supervision, including
prohibiting her from committing further offenses, ordering her to pay fees and
restitution, ordering her to complete community services hours, and so forth. (I
C.R. at 29-31). Appellant waived her right to appeal this order. (I C.R. at 25-27).
On May 17, 2012, the State filed the first of a series of motions to
adjudicate. (I C.R. at 33-35). This motion alleged, among other things, that
Appellant failed to pay the restitution, and was “delinquent $105.00”, and that
Appellant failed to pay court costs, and was “delinquent $30.00”. (I C.R. at 33).
At the hearing on this motion, Appellant pled true, (IV R.R. at 7) (VIII R.R. at
Second SX-1 “Judicial Stipulation”)), and the court accepted her plea, but declined
to revoke her probation and instead added some jail time. (IV R.R. at 7; 15).
On February 12, 2013, the State filed its second motion to adjudicate and
alleged, among other things, that Appellant had failed to pay restitution and was
“delinquent $45.00”, and was delinquent $10.00 in court costs. (I C.R. at 56).
This time, Appellant pled “not true” (V R.R. at 7), and after hearing evidence the
court again declined to revoke Appellant’s probation, but instead continued her on
the “terms and conditions of [her] probation as they are currently set out.” (V R.R.
at 34).
Among the evidence the court heard was testimony from the probation
officer that Appellant “would have to continue making payments, and she would
have to get current since she was behind previously.” (V R.R. at 12). Appellant
was “behind on all kinds of payments”, (V R.R. at 15), and the probation officer
believed Appellant was “a little over $1,000 behind.” (V R.R. at 16). The
probation officer indicated this delinquency included: “Crime Stoppers, life skills,
restitution, probation fees, court costs, PSI fees, substance abuse fees, substance
abuse test fees.” (V R.R. at 16). Appellant’s boyfriend and her mother made a
$100 payment toward her arrearages. (V R.R. at 21). The probation officer
affirmed this $100 payment went towards the entire $1,000. (V R.R. at 22).
On February 19, 2014, the State filed its third motion to adjudicate, which
led to the court revoking Appellant’s probation and this appeal. (I C.R. at 71-73;
85-87; 92-94) (VII R.R. at 7). Among other things, this motion alleged that
Appellant failed to pay her restitution and was “delinquent $630.00”, and that
Appellant was “delinquent $140.00” in payments towards court costs. (I C.R. at
85). The principal basis of this motion, however, was that Appellant was accused
of committing the new offense of burglary of a building. (I C.R. at 85; 87).
Appellant again pled true to the allegations (VI R.R. at 4-8) and signed an
“Adjudication/Revocation Waivers, Agreements, Judicial Confession”. (I C.R. at
82-84) (VIII R.R. at Third SX-1 (“Judicial Stipulation”)). The court found the
evidence sufficient to find the allegations true, but withheld the finding to have a
sentencing hearing. (VI R.R. at 9).
At the sentencing hearing, the State presented no evidence, “just argument”.
(VII R.R. at 4-5). The court took judicial notice of its file, and at Appellant’s
request, read the presentencing investigation report. (VII R.R. at 4). After brief
arguments, (VII R.R. at 5-6), the court adjudicated Appellant guilty and revoked
her probation. (VII R.R. at 7).
The court then sentenced Appellant to two years in the state jail, stated she
would have to pay court costs “in the amount of $5722 [sic]”, and stated she “will
still owe whatever restitution remains unpaid of the original $19,232.57 [sic] that
was previously ordered.” (VII R.R. at 7).
The court’s written judgment orders restitution in the amount of $1,922.57
and court costs in the amount of $572.00. (I C.R. at 92-94). The clerk’s record
contains a bill of costs showing various amounts owed, including the full amount
of restitution and a “State Elect Filing Fee—Crimi”. (I C.R. at 95-96). This appeal
followed.
SUMMARY OF THE ARGUMENT
ISSUE ONE: The judgment must be vacated as to restitution and a new
hearing ordered on the amount of restitution because the evidence is insufficient to
support a factual basis for the full amount of restitution ordered in the written
judgment, and the record does not otherwise conclusively establish the amount of
This is a case in which the trial court ordered restitution through oral
pronouncement but failed to state the amount, so the restitution cannot be deleted,
but the factual basis to support the amount of restitution ordered is lacking, so a
new restitution hearing should occur.
A defendant on deferred adjudication is not sentenced unless and until he is
adjudicated guilty. Once adjudicated guilty, he is sentenced, but the original order
deferring adjudication is set aside, including any fines or restitution ordered
therein. Sentence must be orally pronounced to be valid: when there is a variance
between the oral pronouncement of sentence and the written judgment, the oral
pronouncement controls. Restitution is part of the sentence and thus must be orally
pronounced. When the trial court orally pronounces restitution, but fails to state
the amount, the remedy is to vacate the restitution order and remand for a new
hearing on the amount of restitution if the record does not conclusively establish
the amount of restitution ordered. Here, the trial court made restitution part of its
oral pronouncement, but did not state an amount. Later, the written judgment
contained a specific amount. The question is whether the evidence provides a
factual basis to support the full amount of restitution.
The trial court received no evidence before orally pronouncing restitution,
but simply read a presentence investigation report. This report would not
ordinarily contain the amount of restitution owed, but rather the amount of
restitution necessary to adequately compensate the victim—that is, the original, not
the current, amount of restitution owed. Moreover, the trial judge’s own comment
when including restitution in his oral pronouncement shows he did not know the
amount of restitution that should be ordered.
Although the certified bill of costs states that the full amount of restitution is
owed, this bill of costs was not prepared until after oral pronouncement of sentence
and after the written judgment was signed. There is reason to think the bill of costs
is inaccurate.
Prior to the instant motion to adjudicate, the State’s previous motions stated
differing amounts in which Appellant was delinquent in restitution that cannot be
squared with the amount which should have been owed if no payments were made
at all, much less at $35.00 per month. In fact, the second motion, filed roughly
nine months after the first, alleges Appellant was less delinquent in restitution fees
than she was the first time—suggesting some payments were made. Appellant
pled true to the first motion, but not the second.
At the hearing on the second motion, it is undisputed that $100 was paid
toward arrearages totaling about $1,000. These arrearages included money owed
for restitution, so there is at least some evidence suggesting there may have been
some money paid towards restitution fees.
Appellant pled true to the third motion, which alleged a delinquency that
necessarily implies some payments were made.
Given the state of the record, the factual basis to support the amount of
restitution ordered in the trial court’s judgment is lacking, and the actual amount
owed is not conclusively established. Because it is undisputed, however, that some
restitution is owed, and because restitution was orally pronounced, this Court
should vacate the restitution order and remand for a new restitution hearing.
Alternatively, the Court should modify the judgment to reflect the amount of
restitution Appellant would owe based on her plea of true to the third motion to
adjudicate.
ARGUMENT
Standard of Review and Applicable Law
1. The Standard of Review is Abuse of Discretion
The appellate court reviews challenges to restitution orders under an abuse
of discretion standard. O’Neal v. State, 426 S.W.3d 242, 246 (Tex. App.—
Texarkana 2013, no pet.); Cartwright v. State, 605 S.W.2d 287, 288-89 (Tex.
Crim. App. 1980). A trial court abuses its discretion when it acts without reference
to any guiding rules or principles or acts arbitrarily or unreasonably, or when its
decision is so clearly wrong that it lies outside the zone of reasonable
disagreement. Gonzalez v. State, 117 S.W.3d 831, 839 (Tex. Crim. App. 2003).
2. An Order Adjudicating Guilt Sets Aside the Order Deferring Adjudication, Including Any Fines or Restitution Imposed Therein
No sentence is imposed when a defendant receives deferred adjudication.
See Davis v. State, 368 S.W.2d 368, 371 (Tex. Crim. App. 1998) (“strictly
speaking, it [deferred adjudication] is not a probated or suspended sentence
because there has not been a sentence”) (internal quotations omitted). When
“guilt is adjudicated, the order adjudicating guilt sets aside the order deferring
adjudication, including the previously imposed fine” and restitution. Taylor v. 14
State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004) (fine); Alexander v. State, 301
S.W.3d 361, 364 (Tex. App.—Fort Worth 2009, no pet.) (restitution).
3. When there is a Variance Between Oral Pronouncement of Sentence and a Court’s Written Judgment, the Oral Pronouncement Controls
A defendant’s sentence must be pronounced orally in his presence. Tex.
Code Crim. Proc. Ann. 42.03, Section 1(a). “A trial court’s pronouncement of
sentence is oral, while the judgment, including the sentence assessed, is merely the
written declaration and embodiment of that oral pronouncement.” Alexander, 301
S.W.3d at 363. Thus, “when there is a conflict between the oral pronouncement
and the written judgment, the oral pronouncement controls.” Burt v. State, 445
S.W.3d 752, 757 (Tex. Crim. App. 2014). “A trial judge has neither the statutory
authority nor the discretion to orally pronounce one sentence in front of the
defendant, but then enter a different written judgment outside the defendant’s
presence.” Id. at 3.
4. Restitution is Punishment and as such, is Part of the Sentence that Must Be Orally Pronounced
Restitution is punishment. Weir v. State, 278 S.W.3d 364, 366 (Tex. Crim.
App. 2006); Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006) (orig.
proceeding). As such, to be valid it must be part of the sentence orally
pronounced. Burt, 445 S.W.3d at 760; Sauceda v. State, 309 S.W.3d 767, 769
(Tex. App.—Amarillo 2010, pet. ref’d); Alexander, 301 S.W.3d at 364.
5. When the Trial Court Orally Pronounces Restitution, but Fails to State the Amount, the Restitution Order Must Be Vacated and a New Restitution Hearing Held If The Factual Basis to Support the Amount of Restitution Ordered is Lacking
“When the record is clear that the trial judge orally made restitution a part of
the sentence, but…the amount…is unclear, incorrect, or insufficient…appellate
courts should vacate the faulty order and remand for a new restitution hearing.”
Burt, 445 S.W.3d at 754. Restitution must have a factual basis, see Campbell v.
State, 5 S.W.3d 693, 696-97 (Tex. Crim. App. 1999), and therefore, “[d]ue process
considerations thus implicated require that there must be evidence in the record to
show that the amount [of restitution] set by the court has a factual basis.”
Cartwright, 605 S.W.2d at 288-89. Thus Appellant’s claim, despite the variance
between the oral pronouncement and the written judgment (which suggested there
was a problem), is at heart a legal sufficiency claim: and a “claim regarding
sufficiency of the evidence need not be preserved for appellate review at the trial
level, and it is not forfeited by the failure to do so.” Moff v. State, 131 S.W.3d 485,
489 (Tex. Crim. App. 2004).1
1 Which makes error-preservation not an issue, as it was in what we might call “Burt I”. Burt v. State, 396 S.W.3d 574 (Tex. Crim. App. 2013) (considering whether two claims, fact that orally pronounced restitution differed from written judgment and fact that amount in written judgment improperly included losses from alleged victims not named in the indictment, were preserved). 16
Application
1. Restitution originally imposed was set aside when the court adjudicated guilt and imposed a sentence
Here, the Order of Deferred Adjudication ordered restitution in the amount
of $1,922.57 at $35.00 per month, (I C.R. at 28-30), but this did not constitute a
sentence. Davis, 368 S.W.2d at 371. That order was then set aside when the court
adjudicated Appellant guilty and imposed a sentence. Taylor, 131 S.W.3d at 502;
Alexander, 301 S.W.3d at 364.
2. The court’s oral pronouncement of sentence mentioned that restitution would be ordered, but failed to state the amount
When Appellant pled true to the State’s motion to adjudicate guilt, the court
did not pronounce her guilty at that time and impose a sentence. (VI R.R. at 9).
Rather, the court held a sentencing hearing later, at which point the court
adjudicated Appellant guilty. (VII R.R. at 7). When the court imposed sentence,
the court stated Appellant would “still owe whatever restitution remains unpaid of
the original $19,232.57 [sic] that was previously ordered.” (VII R.R. at 7).
Restitution, as punishment, is part of the sentence, so it must be included in
the oral pronouncement. Weir, 278 S.W.3d at 366; Ex parte Cavazos, 203 S.W.3d
at 338; Sauceda, 309 S.W.3d at 769; Alexander, 301 S.W.3d at 364. Here, because
restitution was orally pronounced, (VII R.R. at 7), the restitution order of
$1,922.57 cannot be deleted. Burt, 445 S.W.3d at 760-761.
3. When the fact of restitution is ordered but not the amount, the restitution order must be vacated and a new restitution hearing held
Here, as in Burt, the trial judge “made restitution a part of his oral
pronouncement of sentence”, so the “restitution order should not be deleted”. Burt,
445 S.W.3d at 760. However, “the case should be remanded to the trial court for a
hearing in which [A]ppellant will have to object to the amount, introduce evidence
to support [her] position, and exercise all of [her] due process rights.” Id. This is
because the fact, but not the amount, of restitution was orally pronounced. Id. at
760-761. A remand should be conditioned, however, on the record not otherwise
providing a factual basis to support the amount of restitution ordered, because Burt
stated the facts of its case “more comfortably [fell] within that body of our case
law in which the trial judge has the authority to order restitution and did order
restitution, but the evidence is insufficient to support the restitution amount
ordered.” Burt, 445 S.W.3d at 760. Stated another way, unless the record
otherwise conclusively establishes the amount of restitution owed, the appellate
court should remand for a new restitution hearing.
4. The record does not otherwise conclusively establish the amount of restitution ordered in the written judgment
When the trial judge orally pronounced sentence, he stated Appellant would
owe “whatever restitution remains unpaid of the original $19,232.57 [sic] that was
previously ordered.” (VII R.R. at 7). We may discount the precise amount in this
quote, which is either a typographical error or a misstatement. What is certain is
that the trial judge did not know what amount of restitution was owed—otherwise,
he would not have said Appellant owes “whatever restitution remains unpaid”, but
that she owes “_______, which remains unpaid”.
When the trial judge orally pronounced sentence, he had not received
testimony or other documentary evidence because the prosecutor stated at the
beginning of the hearing that “[w]e don’t have any evidence, just argument.” (VII
R.R. at 4-5). The parties did not mention restitution during their closing
arguments. (VII R.R. at 5-6).
The trial judge did review a presentence investigation report before orally
pronouncing sentence, (VII R.R. at 4),2 but it is plain that this report did not
contain the amount of restitution owed or else the judge could have easily found,
and pronounced, the amount owed. In any event, the relevant statute does not
require the report to contain the amount of restitution owed, just the amount
necessary to compensate the victim adequately—the original, not the current,
amount of restitution owed. Tex. Code Crim. Proc. art. 42.12, Sec. 9(a) (report
must contain, among other things, the “amount of restitution necessary to
adequately compensate a victim of the offense”). Therefore, we cannot speculate
2 This report is not part of the appellate record, but it is “not normally included in that record.” Brewer v. State, No. 1270-03, 2004 WL 3093224, at *4 (Tex. Crim. App. May 19, 2004) (unpublished); see Tex. Code Crim. Proc. art. 42.12, Sec. 9(j) (report is confidential). 19
as to whether the report contained the amount of restitution owed, and at any rate,
the judge could have and no doubt would have ordered a precise amount had it
been found in the report.
The bill of costs suggests the full amount is owed, but there is reason to
believe this is incorrect. (I C.R. at 95).
The prosecutor requested that the trial judge take judicial notice of his file,
including “the prior two motions to adjudicate and case histories attached thereto”,
and the judge did so. (VII R.R. at 4). But this does not supply the missing
evidence for two reasons. First, a trial court may take judicial notice “that a
pleading has been filed”, but “may not, however, take judicial notice of the truth of
allegations in its records.” Tschirhart v. Tschirhart, 876 S.W.2d 507, 508 (Tex.
App.—Austin 1994, no writ) (emphasis in original). Hence, unless these motions
and case histories are “formally admitted into evidence at trial, [the State] may not
rely on [them] as evidence on appeal.” Id. at 509.
Second, even if these motions could be relied on as evidence, they support
the conclusion that some restitution was paid, and that a different amount would
have been owed by the time of sentencing.
On January 23, 2012, Appellant was ordered to pay restitution of $1,922.57
at $35.00 per month. (III R.R. at 6); (I C.R. at 30). Assuming her first payment
was due in February 2012, then the first motion to revoke, filed in May 2012,
alleges an amount, $105.00, that would correctly reflect the delinquency if
Appellant made no payments at all up to that point. (I C.R. at 33) (three months
times $35 equals $105). Appellant pled true to this motion. (IV R.R. at 7).
However, nine months later in February 2013, the State filed a motion to
revoke alleging that Appellant was only $45.00 delinquent. (I C.R. at 56-57). On
its face, this shows that something was paid, because the alleged delinquency is
less now than it was before. In fact, it suggests $375 was paid. If Appellant paid
nothing from February 2012 until February 2013, she would owe $420 ($35 x 12
=$420). If she is alleged to be only $45 delinquent, then she must have paid $375 (
$420 - $45 = $375). While Appellant pled not true to this motion, (V R.R. at 7),
at the hearing it was clear that $100 was paid towards Appellant’s approximately
$1,000 arrearages, which included restitution. (V R.R. at 16; 21-22). Hence, this
second motion and the hearing together support the conclusion that some payments
were made towards restitution, though they seem insufficient to determine
precisely what amount.
In the third motion to revoke, filed in February 2014, the State alleged
Appellant was $630.00 delinquent in restitution fees. (I C.R. at 85-86). Again,
this supports the conclusion that something less than the full amount of restitution
was owed, because if Appellant had paid nothing for two years, she would have
been delinquent $840 ($35 x 24 = $840). Or, if she was only $45 behind a year
before, she would have been $465 behind in February 2014 if nothing was paid in
the interim ($35 x 12 = $420 + $45 = $465). Appellant pled true to this motion.
(VI R.R. at 8).
Based on the foregoing, three conclusions are true: first, that the State
alleged and Appellant agreed (by pleading true) that some restitution was paid;
second, the factual basis for ordering the full amount of restitution is lacking; and
third, we cannot determine what amount is actually owed from this record.
Therefore, this Court should vacate the restitution order and remand for a new
hearing on the amount of restitution only.3
5. Alternatively, the Court should vacate the restitution order and modify the judgment to reflect the amount of restitution that would be owed based on the third motion to adjudicate.
A plea of true by itself is sufficient to support revocation of community
supervision. Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. 1979). Thus, a
plea of true “relieves the State of its evidentiary burden.” Rusk v. State, 440
S.W.3d 694, 703 (Tex. App.—Texarkana 2013, no pet.). Here, Appellant pled true
to the third motion to revoke, so the question arises whether she is estopped from
challenging the amount alleged to be delinquent in the third motion. If so, then the
Court should modify the judgment to reflect that she owes restitution in the amount
of $1,712.57, which would represent the difference between what the delinquency
3 Or on court costs and restitution only, if the Court agrees with Appellant on issue two. 22
would have been ($840) if Appellant made no payments whatsoever and thus owed
the full amount ($1,922.57), and the amount the State alleged Appellant was
actually delinquent ($630).
In this case, as shown above, the record discloses various amounts of
restitution owed or alleged to be owed at different times: in fact, one allegation
suggests Appellant paid more than $210, (I C.R. at 56 (suggesting she paid $375)),
and two out of the three allegations support the conclusion that some restitution
was paid (I C.R. at 56; 85), as does the record of the hearing on the second motion
to adjudicate. (V R.R. at 16; 21-22). Therefore, the record casts doubt on the
actual amount of restitution owed, despite Appellant’s plea of true. Given that, in
addition to “providing justice to victims” we must also be concerned about a
“defendant’s due-process rights”, Burt, 445 S.W.3d at 755, the safest and most just
course of action is to remand for a new restitution hearing to confirm the actual
amount of restitution owed. After all, the bill of costs alleges the full amount is
owed, (I C.R. at 96), so if this is correct a remand would serve the purpose of
restoring “the victim to the ‘status quo ante’ position he was in before the offense”,
while ensuring that this restitution “serves as appropriate punishment” for
Appellant. Burt, 445 S.W.3d at 756. For these reasons, the Court should not
become guilty of a “robotic application” of the plea of not true. Rusk, 440 S.W.3d
at 703.
However, if the Court disagrees, then the Court should modify the judgment
to reflect that $1,712.57 is ordered in restitution, for the reasons given above.
Conclusion
The restitution order in the judgment must be vacated, and the case
remanded to the trial court for a new hearing on the proper amount of restitution.
Alternatively, the Court should modify the judgment to reflect that $1,712.57 is
owed in restitution.
ISSUE TWO: The judgment must be vacated as to court costs and a new
hearing ordered as to the amount owed because the record suggests some payments
were made towards court costs, but the precise amount is unclear, and one cost
Court costs may be challenged for the first time on appeal. The reviewing
court determines if there is a basis for the costs and if the facts support them, but
traditional legal sufficiency principles do not apply.
The bill of costs states that no payments on court costs have been paid at all.
Appellant pled true to the State’s third motion to adjudicate, which alleged she was
delinquent $140 in court costs out of the initial $246.00, which she was to pay at a
rate of $10.00 per month. Because this motion was filed twenty-four months after
Appellant was to begin making payments of $10.00 per month, if Appellant had
truly paid nothing she would have been delinquent $240.00 in court costs. This
suggests at least $100 was paid. The second motion to adjudicate, filed twelve
months after Appellant was to begin paying, alleges a delinquency of only $10,
suggesting, again, that Appellant paid some court costs. While Appellant did not
pled true to this motion, at the hearing on the motion there was evidence that $100
was paid towards her $1,000 arrearages. Therefore, again, there is some evidence
that something was paid. However, because the record does not support a
conclusive amount, it is not possible for this court to modify the judgment and
affirm; instead, a remand is necessary.
There also does not seem to be a statutory basis for the “State Elect Filing
Fee—Crimi”, so on remand this fee should not be permitted to be imposed.
Alternatively, the Court could take the alleged delinquency in the last
motion to adjudicate as reflecting the true amount of court costs paid, delete the
above-referenced fee, and then modify the judgment.
A challenge to the bases of assessed court costs may be raised for the first
time on appeal. Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014).
When reviewing the record supporting court costs, the appellate court determines
whether there is a “basis for the cost”, not whether there is “sufficient evidence
offered at trial to prove each cost”. Id. at 390. Thus, “traditional Jackson
evidentiary sufficiency principles do not apply.” Id.
Court costs need not be “orally pronounced nor incorporated by reference in
the judgment to be effective.” Id. at 389. Therefore, “when a specific amount of
court costs is written in the judgment, an appellate court errs when it deletes the
specific amount if there is a basis for the cost.” Id. Still, only “statutorily
authorized court costs may be assessed against a criminal defendant”. Id. Thus,
when evaluating court costs, the reviewing court determines whether there is a
statutory basis for the costs and whether there are facts to support them. Id. at 395-
396.
This is really the mirror image of the restitution argument in issue one, so
the argument will parallel part of that argument. However, it should be
emphasized that Appellant only challenges the statutory basis for one of the
assessed costs; for the most part, she argues that the factual basis is lacking to
support the reflection in the bill of costs that no payments have been made at all.
On January 23, 2012, Appellant was ordered to pay court costs of $246 at
$10.00 per month. (III R.R. at 6); (I C.R. at 30). Assuming her first payment was
due in February 2012, then the first motion to revoke, filed in May 2012, alleges an
amount, $30.00, that would correctly reflect the delinquency if Appellant made no
payments at all up to that point. (I C.R. at 33) (three months times $10 equals
$30). Appellant pled true to this motion.4 (IV R.R. at 7).
However, nine months later in February 2013, the State filed a motion to
revoke alleging that Appellant was only $10.00 delinquent. (I C.R. at 56-57). On
its face, this shows that something was paid, because the alleged delinquency is
less now than it was before. In fact, it suggests $110 was paid. If Appellant paid
nothing from February 2012 until February 2013, she would owe $120 ($10 x 12
=$120). If she is alleged to be only $10 delinquent, then she must have paid $110 (
$120 - $10 = $110). While Appellant pled not true to this motion, (V R.R. at 7), at
the hearing it was clear that $100 was paid towards Appellant’s approximately
$1,000 arrearages, which included court costs. (V R.R. at 16; 21-22). Hence, this
second motion and the hearing together support the conclusion that some payments
were made towards court costs, though they seem insufficient to determine
In the third motion to revoke, filed in February 2014, the State alleged
Appellant was $140.00 delinquent in court costs. (I C.R. at 85-86). Again, this
supports the conclusion that something less than the full amount of court costs was
4 The trial court took judicial notice of its file, (VII R.R. at 4), and just as in issue one, the court could not have taken judicial notice of the truth of the allegations of any motions in its file nor may the State now rely on any such motions as evidence if not formally admitted into evidence during the revocation hearing. Tschirhart v. Tschirhart, 876 S.W.2d 507, 508-09 (Tex. App.— Austin 1994, no writ). However, because court costs need not be orally pronounced nor do traditional sufficiency of the evidence rules apply, Johnson, 423 S.W.3d at 390, this is less important here than in issue one. 27
still owed, because if Appellant had paid nothing for two years, she would have
been delinquent $240 ($10 x 24 = $240). Or, if she was only $10 behind a year
before, she would have been $130 behind in February 2014 if nothing was paid in
the interim ($10 x 12 = $120 + $10 = $130). Appellant pled true to this motion.
Based on the foregoing, three conclusions are true: first, that the State
alleged and Appellant agreed (by pleading true) that some court costs were paid;
second, the factual basis for ordering the full amount of court costs is lacking; and
third, we cannot determine what amount is actually owed from this record.
Therefore, this Court should vacate the court costs and remand for a new hearing
on the amount of court costs only.5
On remand, the trial court should be prohibited from imposing the cost for
“State Elect Filing Fee—Crimi” in the amount of $5.00. (I C.R. at 95). This is
because Appellant cannot determine the statutory basis for this fee. It is possible it
comes from Texas Government Code Section 103.024, which allows for a $5 fee
for filing a restitution lien under Article 42.22 of the Texas Code of Criminal
Procedure. However, section 5 of that article requires an affidavit to be filed to
perfect the restitution lien. Here, no such affidavit appears in the record.
Therefore, either the fee is without a statutory basis, or if the statutes just cited
5 Or on court costs and restitution only, if the Court agrees with Appellant on issue one. 28
provide that basis, then the factual predicate for assessment of the fee is lacking.
In either event, the fee should be deleted.
If the Court believes Appellant’s plea of true to the third motion provides a
sufficient basis to determine the amount of costs owed, then the Court should
modify the judgment to reduce the amount of court costs owed by $105 ($100 for
the payments suggested by the allegation in the motion and $5 for the “State Elect
Filing Fee—Crimi”).
The Court should delete the “State Elect Filing Fee—Crimi” fee, vacate the
rest of the judgment concerning court costs, and remand for a hearing to determine
the amount of costs actually owed, as well as the amount of restitution actually
owed if the Court agrees with Appellant on issue one.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant asks this Court to
VACATE the trial court’s judgment as argued above and REMAND for a new
hearing on restitution and court costs. In the alternative, the Court should
MODIFY the judgment to reflect $1,712.57 in restitution owed. In addition, the
Court should MODIFY the judgment to reflect court costs owed in the amount of
$105.
Respectfully submitted:
/s/ Justin Bradford Smith Justin Bradford Smith Texas Bar No. 24072348
Harrell, Stoebner, & Russell, P.C. 2106 Bird Creek Drive Temple, Texas 76502 Phone: (254) 771-1855 FAX: (254) 771-2082 Email: justin@templelawoffice.com
CERTIFICATE OF COMPLIANCE
I hereby certify that, pursuant to Rule 9 of the Texas Rules of Appellate Procedure, Appellant’s Brief contains 5,107 words, exclusive of the caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, signature, proof of service, certification, certificate of compliance, and appendix.
/s/ Justin Bradford Smith Justin Bradford Smith
CERTIFICATE OF SERVICE
I hereby certify that on January 24, 2015, a true and correct copy of
Appellant’s Brief was forwarded to the counsel below by eservice:
Bob Odom Bell County District Attorney’s Office P.O. Box 540 Belton, Texas 76513 Email: DistrictAttorney@co.bell.tx.us