ACCEPTED 03-14-00616-CR 4133839 THIRD COURT OF APPEALS AUSTIN, TEXAS 2/12/2015 4:26:59 PM JEFFREY D. KYLE CLERK No. 03-14-00616-CR
IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF AUSTIN, TEXAS TEXAS AT AUSTIN, TEXAS 2/12/2015 4:26:59 PM JEFFREY D. KYLE Clerk ********
ALEXIS MARIE IRELAND VS.
THE STATE OF TEXAS ********
ON APPEAL FROM THE 27th DISTRICT COURT OF BELL COUNTY, TEXAS Cause No. 69086
******
STATE’S BRIEF ******
HENRY GARZA DISTRICT ATTORNEY
BOB D. ODOM ASSISTANT DISTRICT ATTORNEY P.O. Box 540 Belton, Tx 76513 (254) 933-5215 FAX (254) 933-5704 DistrictAttorney@co.bell.tx.us SBA No. 15200000
Oral Argument Not Requested
1 TABLE OF CONTENTS ITEM PAGE
Index of Authorities …………………………………………………………………. 3
Statement Regarding Oral Argument ………………………………………… 5
Statement of the Case ………………………………………………………………. 5
Statement of Facts …………………………………………………………………… 6
Summary of State’s Argument …………………………………………………. 9
Argument and Authorities ……………………………………………………….. 9
First Issue on Appeal ……………………………………………………… 9 TRIAL COURT ABUSE DISCRETION IN ORDERING PAYMENT OF RESTITUTION AT ADJUDICATION HEARING WITHOUT A SUFFICIENT FACTUAL BASIS IN THE RECORD?
Standard of Review ……………………………………………….. 9
Application and Analysis ……………………………………….. 10
Second Issue on Appeal ………………………………………………….. 16 TRIAL COURT ERR IN IMPOSING STATUTORILY MANDATED COURT COSTS INCLUDED IN BILL OF COSTS?
Applicable Law ………………………………………………………. 16
Application and Analysis ………………………………………… 17
Prayer ……………………………………………………………………………………… 19
Certificate of Compliance with Rule 9 ………………………………………… 20
Certificate of Service …………………………………………………………………. 20
2 INDEX OF AUTHORITIES
CASES PAGE
Campbell v. State, 5 S.W.3d 693 (Tx. Cr. App. 1999) ………………….. 10
Cartwright v. State, 605 S.W.2d 287 (Tx. Cr. App. 1980) …………… 9
Drisker v. State, No. 03-13-00356-CR, 2014 Tex. App. ………………. 17 LEXIS 8926 (Tx. App. Austin 3rd Dist. 2014 no pet.), not designated for publication.
Gutierrez-Rodriguez v. State, 444 S.W.3d 21 …………………………….. 11 (Tx. Cr. App. 2014)
Johnson v. State, 423 S.W.3d 385 (Tx. Cr. App. 2014) ……………….. 17
Jones v. State, 713 S.W.2d 796 ………………………………………………… 12 (Tx. App. Tyler 12th Dist. 1986 no pet.)
Martin v. State, 405 S.W.3d 944 ………………………………………………. 16 (Tx. App. Texarkana 6th Dist. 2013 no pet.)
Montgomery v. State, 810 S.W.2d 372 (Tx. Cr. App. 1991) ………… 10
Rotella v. State, No. 02-12-00485-CR, 2014 Tex. App. ………………. 14, 15 LEXIS 290 (Tx. App. Ft. Worth 2nd Dist. 2014 no pet.), not designated for publication.
Speth v. State, 6 S.W.3d 530 (Tx. Cr. App. 1999) ………………………. 11
Weir v. State, 278 S.W.3d 364 (Tx. Cr. App. 2009) ……………………. 16
3 OTHER
Texas Code of Criminal Procedure
Article 42.12(5) ……………………………………………… 12
Article 103.001 ……………………………………………… 19
Texas Government Code
Section 51.851 ………………………………………………. 18
Section 51.851(b) ……………………………………………. 18
Section 51.851(d) ……………………………………………. 18
Texas Rules of Appellate Procedure
Rule 44.2(b) …………………………………………………. 14, 19
Texas Attorney General
Opinion GA-1046 ……………………………………………. 18
4 STATEMENT REGARDING ORAL ARGUMENT The State does not request oral argument.
STATEMENT OF THE CASE
The Appellant, Alexis Marie Ireland, was charged by complaint
and information with the felony offense of Forgery. The information
alleged that she had passed a forged check in the amount of $7,475.41
(CR-4). She was placed on a five years deferred adjudication and
ordered to pay restitution in the amount of $1,922.72 and court costs as
a term and condition of community supervision. (CR-30).
The Appellant’s deferred adjudication was subsequently revoked
and she was sentenced to 2 years in State Jail and ordered to pay court
cost and the unpaid portion of restitution. (CR-92; RR77).
She gave timely notice of appeal (CR-97, 102) and the trial court
certified her right to do so. (CR90).
This case was heard at the same time as the revocation of
community supervision in Cause Number 72691, which is now before
this court in Ireland v. State, No. 03-14-00615-CR.
5 STATEMENT OF FACTS
Because the Appellant only challenges the order to pay court cost
and restitution the facts of the offense are not germane to the issue on
appeal except in so far as they relate to those orders.
The Appellant entered a plea of guilty before Judge Joe Carroll on
January 23, 2012. (RR2-6). There was a plea bargain with the State that
she receive felony probation with the terms and conditions left to the
court. (CR- 12). She judicially confessed to the commission of the
offense. (CR-18). The trial court subsequently found the evidence
sufficient to support a finding of guilt and placed the Appellant on
deferred adjudication for a term of 5 years after considering the pre-
sentence report without objection from the Appellant. (RR3-4).
In that pre-sentence report it was noted that the Appellant did
not get away with the proceeds of the check from the bank that were set
out in the complaint and information, but that she had successfully
passed an identical forged check at the same bank the day before in the
amount of $1,922.57. (CR-Supp.-8).
The trial court included as a term and condition of deferred
adjudication that the Appellant pay restitution to Central National Bank
6 in the amount of $1,922.57 at the rate of $35.00 per month. (CR-30;
RR2-6). The Appellant did not object to that restitution order or to any
of the other terms and conditions of deferred adjudication. She waived
appeal. (CR-25).
Thereafter a series of motions to adjudicate were filed in this case
and heard by the trial court. Motions to adjudicate were filed on May
17, 2012 (CR-32), on February 12, 2013 (CR-56), and, finally, on
February 19, 2014 (CR-71). In each instance alleged violations included
failure to pay the restitution and court costs are ordered.
The third motion to adjudicate was heard by Judge John Gauntt on
July 9, 2014. The Appellant entered pleas of true to all of the allegations
in the February 19, 2014 motion to adjudicate. (RR6-8). That motion
included the allegation, admitted by the Appellant, that she was then
delinquent as to her scheduled restitution payments in the amount of
$630.00 and as to court cost in the amount of $140.00.
The trial court found the evidence sufficient to find that she had
violated her deferred adjudication and allowed her to remain on bond
pending an updated pre-sentence report. (RR6-9). At the subsequent
punishment hearing the trial court revoked her deferred adjudication,
7 found her guilty and assessed punishment at 2 years in State Jail. (RR7-
7).
During its oral pronouncement of sentence the court stated:
“you are going to have to pay the accumulated court costs in this case,
either while you are incarcerated or when you get out, in the amount of
$5,722. You still owe whatever restitution remains unpaid of the
original $19,232.57 that was previously ordered.” (RR7-7). The trial
court misspoke as to the standard court costs as reflected in the Bill of
Costs as $5,722 rather than $572 and the restitution as originally
ordered and as included in the bill of costs of $1,922.57 as $19,323.57
(or it was a typographical error). (CR-95; RR7-7).
The Judgment Adjudicating Guilt correctly recited $572.00 in
court costs and $1,922.57 in restitution. (CR-92). It also ordered that
the Appellant pay whatever amounts remained unpaid of those total
amounts. (CR-93).
The Appellant did not object or contest the assessment of court
costs or restitution at trial.
8 SUMMARY OF STATE’S ARGUMENT
The trial court’s order for payment of restitution remaining
unpaid in the amount ordered in the judgment of adjudication is fully
supported by the record and correctly only imposes an obligation to pay
what the Appellant has not previously paid during the period of
deferred adjudication.
The court costs ordered to be paid, to the extent that they remain
unpaid, are all statutorily mandated and need not be included in the oral
pronouncement of sentence nor otherwise factually supported by the
record. They are mandatory.
ARGUMENT AND AUTHORITIES
First Issue on Appeal
Did the trial court abuse its discretion in ordering the payment of
$1,922.57 in restitution because it was without a sufficient factual basis
in the record?
Standard of Review
Restitution orders are reviewed under an abuse of discretion
standard. Cartwright v. State, 605 S.W.2d 287, 289 (Tx.Cr.App. 1980). A
trial court abuses its discretion only when its decision is arbitrary,
9 unreasonable, or is outside the zone of reasonable disagreement.
Montgomery v. State, 810 S.W.2d 372, 391, 391 (Tx. Cr. App. 1991).
Application and Analysis
The amount of restitution ordered must be just, must have a
factual basis within the loss of the victim, and must be for a crime for
which the defendant is criminally responsible. Campbell v. State, 5
S.W.3d 693, 696, 697 (Tx. Cr. App. 1999).
Evidence Sufficient to Support Restitution Ordered in the Judgment
In this case the Appellant pled guilty to passing a forged check to
the bank in the amount of $7,475.41. Evidence received in the original
plea proceeding contained in the pre-sentence report that was taken
into consideration without objection, indicated that the Appellant had
not successfully completed the passing of the forged instrument alleged
in the pleadings but was caught in the act of attempting to do so. It was
determined, however, that she had successfully passed an otherwise
identical check at the same bank the day before in the amount of
$1,922.57.
The trial court ordered payment of that amount of restitution to
the bank as a term and condition of her deferred adjudication. She did
10 not object, nor did she appeal the terms and conditions of her
community supervision.
Where a defendant was ordered to pay restitution as a term and
condition of community supervision for an amount not included in the
charged instrument, but which was taken during the same transaction,
and neither objects nor appeals, a contractual obligation is created
between the defendant and the trial court and the defendant fails to
preserve the issue for appeal unless that obligation is one that is
intolerable to the judicial system. This type of order is not. Gutierrez-
Rodriguez v. State, 444 S.W.3d 21, 22-24 (Tx. Cr. App. 2014), citing Speth
v. State, 6 S.W.3d 530, 534,535 (Tx. Cr. App. 1999).
In this case the initial order of restitution was entered as part of
exactly that type of contractual agreement. It was supported by the
information before the trial court in the pre-sentence report and it
directly related to the passing of forged checks, identical in every
respect except the amount, at the same bank. The trial court’s order had
a factual basis.
If, however, this restitution to the same victim for the check
passed by the Appellant during the same course of criminal conduct as
that made the basis of this prosecution is not properly ordered upon
11 adjudication of guilt, then the remedy would seem to be simply deleting
the order for the payment of that restitution from the judgment.
The next question become whether or not the trial court could
order the payment of that same amount of restitution at the time that
the Appellant was sentenced after her deferred adjudication is revoked
based upon the evidence in the original proceeding. When a deferred
adjudication is revoked all proceedings, including the assessment of
punishment, pronouncement of sentence, granting of community
supervision, and the defendant’s appeal continue as if the adjudication
of guilt had not been deferred. Article 42.12(5)(b), Texas Code of
Criminal Procedure. In other words the case takes back up where it left
off at the point of an adjudication of guilt and proceeds on with the
matter of sentencing and appeal. It does not require that the evidence
admitted at the original plea proceeding be repeated or disregarded.
Sufficient evidence to support a trial court’s order imposing
restitution may be provided by statements contained in the pre-
sentence report where, as here, there is no objection to the court taking
it under consideration. Jones v. State, 713 S.W.2d 796, 797, 798 (Tx. App.
Tyler 12th Dist. 1986 no pet.).
12 When the trial court revoked the Appellant’s deferred
adjudication the trial went back to the point of adjudication. The trial
court had all evidence before it that was offered in the original plea
proceeding. This included the original pre-sentence report, considered
by the court without objection (RR3-4, 5). That pre-sentence report
included a statement concerning restitution in the amount of $1, 922.57
payable to the bank. (CR-Supplement-8). Therefore, there was sufficient
evidence to support the inclusion of that amount of restitution in the
trial courts order adjudicating guilt. (CR-92).
Oral Pronouncement
The Appellant correctly notes that restitution must be included in
the oral pronouncement of sentence. In this case the trial court did
include restitution in its oral pronouncement of sentence, however, the
court misspoke (or there was a typographical error) as to the amount of
restitution to be paid. The trial court ordered “whatever remains
unpaid of the original $19,232.57 previously ordered”. (RR7-7).
Whether this was a misstatement or a misunderstanding as to the
amount the order was clearly for the payment of the unpaid balance of
the originally ordered restitution of $1,922.57 and that total amount is
13 included in the written judgment of the court.1 Although the trial court
may have misstated the amount, the judgment ordering payment is
correct.
The Appellant claims that the evidence indicates that she has
made some payment toward that total amount of restitution while on
deferred adjudication. That is probably the case. However, in its oral
pronouncement of sentence the trial court specifically stated that “You
still owe whatever restitution remains unpaid...” (RR7-7). Furthermore,
the trial court’s Judgment Adjudicating Guilt imposes the original
amount of restitution of $1,922.57 (CR-92) but also expressly orders
that upon release shall proceed to the Bell County District Clerk’s Office
to “….pay, or make arrangements to pay, any remaining unpaid fines,
court costs, and restitution as ordered by the court above”. (CR-93)
(emphasis supplied).
In Rotella v. State, No. 02-12-00485-CR, 2014 Tex. App. LEXIS 290
(Tx. App. Ft. Worth 2nd Dist. 2014 no pet.), not designated for
publication, the defendant requested that the trial court deduct the
1 This misstatement of the amount due in the oral pronouncement was roughly ten times the actual amount ordered in the judgment of conviction. The amount ordered in the judgment is much more favorable to the Appellant than that mistakenly recited by the trial court. If error at all, it is unquestionably harmless. Rule 44.2(b), Texas Rules of Appellate Procedure.
14 payments made by him during his deferred adjudication in the
judgment adjudicating guilt. The court declined to do so and entered
the original amount of restitution ordered when he was placed on
deferred adjudication. The judgment also included an order that all
payments previously paid are to be credited to the ordered amounts.
The Court of Appeals held that the record supported the amount of
restitution as ordered in the judgment and that portion of it was not in
error.
The order entered in the judgment in this case that the Appellant
pay any remaining unpaid portions of the total ordered restitution is
tantamount to the order in Rotella. In this case the Appellant’s total
restitution is included in the judgment, however, the Appellant is only
ordered to pay what remains unpaid.2
2 Presumably the amount paid on deferred adjudication is known by the Appellant or available in the records of the Community Supervision Department. It might be noted that at the time of the adjudication hearing the Appellant pled true to the allegation that she was, at that time, delinquent in her restitution payments in the amount of $630.00. (CR-71; RR6-6). She was ordered to pay restitution in payments of $35.00 per month. (CR-30). She was on deferred adjudication from January 23, 2012 until the final motion to adjudicate was filed on February 19, 2014 showing the $640.00 delinquency. Thus she should have paid at most $875.00. She made no payments between the filing of that motion to adjudicate and her sentencing. (CR-Supp.-23). Thus, deducting the admitted arrearage of $640.00 from the maximum amount that had accrued under the monthly payment order to that date of $875.00, the record could be construed to show that she had paid $235.00 in restitution. If that be the case she is entitled to credit for that amount under the express order contained in the Judgment when payment or arrangement for payment is made.
15 The judgment of the trial court accurately set out the correct
amount of restitution that was supported by the evidence. It also
provided for credit for any amount of restitution paid during the period
of deferred adjudication. It is both reasonable and just.
Second Issue on Appeal
Did the trial court err in ordering the payment of statutorily
mandated court costs in the judgment of conviction as set out in the
District Clerk’s Bill of Costs?
Applicable Law
The trial court may impose an assessment of legislatively
mandated court costs against convicted defendants. Those court costs
are not punitive in nature, but rather intended as non-punitive
recoupment of the costs of judicial resources. They do not have to be
included in the oral pronouncement of sentence. Weir v. State, 278
S.W.3d 364, 367 (Tx. Cr. App. 2009).
Likewise, legislatively mandated court costs are not dependent
upon a showing of the defendant’s ability to pay them. Martin v. State,
405 S.W.3d 944, 947 (Tx. App. Texarkana 6th Dist. 2013 no pet.).
Mandatory court costs are predetermined, legislatively mandated
obligations imposed upon conviction. The amounts of such court costs
16 are published publically and defendants have constructive notice of
them and they need not be proved at trial. Johnson v. State, 423 S.W.3d
385, 389 (Tx. Cr. App. 2014).
Mandatory court costs are exactly that- mandatory. They are
related to judicial expenditures and there is no requirement that they
offset a judicial expenditure incurred in the specific case. To so hold
would be inconsistent with the mandatory nature of the statute
requiring such payment. Although they may not be directly attributable
to the particular case, they are “an inescapable cost to judicial
resources.” Drisker v. State, No. 03-13-00356-CR, 2014 Tex. App. LEXIS
8926 (Tx. App. Austin 3rd Dist. 2014 no pet.), not designated for
publication.
Thus the only question is whether or not the court costs
complained of are legislatively mandated.
The Appellant does not contend that any of the court costs
included on the bill of costs that make up a part of the $572.00 ordered
paid in the Judgment Adjudicating Guilt are not legislatively mandated
except the State Electronic Filing Fee-Criminal in the amount of $5.00.
This item of the court costs, however, is likewise legislatively mandated.
17 The Appellant claims that there is no statutory authority
mandating the assessment of the $5.00 fee for State Electronic Filing.
Perhaps this is because he has failed to correctly interpret the district
clerk’s abbreviation on the bill of “State Elect Filing Fee-Crimini”.
Nevertheless, Section 51.851(d) of the Texas Government Code provides
that in addition to other court costs, a person shall pay $5.00 as a court
cost on conviction of any criminal offense in any district court, county
court, or statutory county court. Section 51.851 is Electronic Filing Fee.
The designation “criminal” in the bill of costs is significant because
Section 51.851(b) imposes a $20.00 court cost in civil cases.
This statutorily mandated court cost applies to all cases after
September 1, 2013.3 This case was resolved on September 3, 2014 and
the bill of costs is dated September 8, 2014 (CR-48). It was, therefore,
applicable to this case.
Because the contested item of court costs, along with all of the
others, totaling $572.00 were statutorily mandated they need not be
supported by evidence in the case, nor be shown to be specifically
applicable to the case. They are mandatory and the Appellant is
obligated to pay them. Here the trial court misstated the amount of
3 See Attorney General’s Opinion GA-1046.
18 court costs according to the record as $5,772 rather than $572, which
seems likely to have been a typographical error. Because court costs
need not be a part of the oral pronouncement of sentence and the court
costs are correctly included in the judgment as set out in the Bill of Costs
as provided in Article 103.001 of the Texas Code of Criminal Procedure,
the trial court’s misstatement or the typographical error in the record of
the oral pronouncement is immaterial and harmless under Rule 44.2(b),
Texas Rules of Appellate Procedure.
PRAYER
The State of Texas respectfully prays that the judgment of
conviction herein be, in all things, be affirmed.
Respectfully Submitted,
/s/ Bob D. Odom BOB D. ODOM Assistant District Attorney P.O. Box 540 Belton, Tx 76513 (254) 933-5215 FAX (254) 933-5704 DistrictAttorney@co.bell.tx.us SBA No. 15200000
19 CERTIFICATE OF COMPLIANCE WITH RULE 9
This is to certify that the State’s Brief is in compliance with Rule 9
of the Texas Rules of Appellate Procedure and that portion which must be
included under Rule 9.4(i)(1) contains 2,802 words.
/s/ Bob D. Odom BOB D. ODOM Assistant District Attorney
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of this brief has been
served upon, Justin Bradford Smith, Counsel for Appellant, by electronic
transfer via Email, addressed to him at Justin@templelawoffice.com on
this 12th day of February, 2015.