Opinion issued October 28, 2014.
In The
Court of Appeals For The
First Trial of Texas ———————————— NO. 01-13-00591-CR ——————————— AMBER NICOLE DOUGHTY, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 9th District Court Montgomery County, Texas Trial Court Case No. 12-07-07650 CR
MEMORANDUM OPINION
Amber Nicole Doughty pleaded guilty to first-degree felony aggregated
theft.1 The trial court assessed punishment at 40 years’ confinement, ordered her to
pay a $10,000 fine and an additional $16,011 in court-appointed attorney’s fees,
1 TEX. PENAL CODE ANN. § 31.03 (West 2011). and placed four additional conditions on her sentence. In two issues, Doughty
contends that the trial court erred by (1) issuing four “special orders” that place
unauthorized conditions on her confinement and parole and (2) assessing as
punishment an obligation to pay attorney’s fees.
We reform the trial court’s judgment and affirm the judgment as reformed.
Background
The trial court’s sentence includes four special orders that require Doughty
to: (1) keep a picture of her victim and her victim’s family in her cell during her
incarceration; (2) cease contact with a person she is romantically interested in; (3)
upon parole, wear a t-shirt stating “I AM A THIEF”; and (4) submit all of her
financial information to law enforcement upon request. Doughty timely objected to
the last three of the special orders.
Doughty appealed. Her original appellate counsel filed an Anders brief,
concluding that the record revealed no error requiring appellate review. The State
waived the opportunity to respond. This Court disagreed with the Anders brief and
remanded the matter to the trial court for appointment of new counsel.
Doughty now challenges the trial court’s authority to issue the four special
orders and impose attorney’s fees on her, an indigent defendant. The State
concedes both issues.
2 Special Orders
In her first issue, Doughty contends that the trial court’s special orders
constitute a punishment beyond what is statutorily authorized.
A. Standard of review
An unauthorized sentence is illegal and has no legal effect. Ex parte Rich,
194 S.W.3d 508, 512 (Tex. Crim. App. 2006). Whether a sentence exceeds the
range of punishment authorized by statute is a question of law reviewed de novo.
See Yazdchi v. State, 428 S.W.3d 831, 837 (Tex. Crim. App. 2014); Kuhn v. State,
45 S.W.3d 207, 209 (Tex. App.—Texarkana 2001, pet. ref’d). A trial or appellate
court that otherwise has jurisdiction “may always notice and correct an illegal
sentence.” Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). If the trial
court imposes an unauthorized sentencing condition, the proper remedy is “to
reform the judgment to delete the unauthorized condition.” Garner v. State, 864
S.W.2d 92, 103 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d).
B. Preservation of error
Doughty timely objected to three of the four special orders; she failed to
object to the requirement that she keep a picture of her victim in her prison cell.
Doughty asserts that each special order is an illegal addition to her sentence.
“Unlike most trial errors which are forfeited if not timely asserted, a party is not
required to make a contemporaneous objection to the imposition of an illegal
3 sentence.” Mizell, 119 S.W.3d at 806 n.6. The State concedes that Doughty did not
need to make a timely objection to preserve her appeal. We agree, and therefore
reach the merits of Doughty’s complaint against each of the special orders,
including the photograph requirement.
C. Scope of the trial court’s sentencing power
A trial court may not impose a sentence that is beyond what is statutorily
authorized for a particular offense. See Gallegos v. State, 754 S.W.2d 485, 489
(Tex. App.—Houston [1st Dist.] 1988, no pet.). The Legislature has specifically
defined “the allowable range of punishment for a given offense” that a trial court
may assess for aggregated theft. Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim.
App. 1999) (“[E]very option available to the court is narrowly identified on the
face of the statute.”). The Texas Penal Code authorizes the trial court to assess
punishment for first-degree felony convictions of confinement for not more than 99
years or less than 5 years and a fine not to exceed $10,000. TEX. PENAL CODE ANN.
§ 12.32 (West 2011). If the trial court assesses a punishment that is not permitted
by statute, the sentence is “unauthorized” and “illegal.” See Mizell, 119 S.W.3d at
806.
The Texas Department of Criminal Justice (“TDCJ”), an executive-branch
agency, “shall operate and manage the state prison system.” See TEX. GOV’T CODE
ANN. § 493.004 (West 2012). Additionally, TDCJ has the exclusive authority to
4 manage inmates’ parole. See TEX. GOV’T CODE ANN. § 493.005 (West 2012) (“The
pardons and paroles division shall supervise and reintegrate felons into society
after release from confinement.”); see also TEX. GOV’T CODE ANN. § 508.0441(a)
(West 2012) (“Board members and parole commissioners shall determine . . .
conditions of parole . . . .”); McNeill v. State, 991 S.W.2d 300, 302 (Tex. App.—
Houston [1st Dist.] 1999, pet. struck) (parole board has sole authority to place
conditions on parole).
D. The special orders go beyond the trial court’s authority
The trial court’s special orders impose conditions upon Doughty’s
confinement and parole. The State concedes that the conditions were unauthorized
by statute and should be deleted from the judgment. See Tufele v. State, 130
S.W.3d 267, 273 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
In Tufele, the trial court ordered the defendant to display two photographs of
the victim in his jail cell for the duration of his confinement. Id. at 272. The
defendant argued on appeal that the confinement condition exceeded the trial
court’s authority. Id. at 273. The appellate court agreed that the condition was not
within the statutory range of punishment for the crime and that the condition was
illegal and void. Id.
In this case, as in Tufele, the trial court exceeded its authority by imposing a
sentence beyond the range of punishment authorized by the Legislature. The four
5 special orders are unauthorized conditions on Doughty’s sentence and are void.2
Accordingly, we reform the judgment, striking the four special orders.
Attorney’s Fees
In her second issue, Doughty contends that repayment of court-appointed
attorney’s fees is not authorized because she is indigent and the State presented no
evidence indicating that she had the ability to pay, as required under Article
26.05(g) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC.
ANN. art. 26.05(g) (West Supp. 2014) (requiring trial court to find that “defendant
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Opinion issued October 28, 2014.
In The
Court of Appeals For The
First Trial of Texas ———————————— NO. 01-13-00591-CR ——————————— AMBER NICOLE DOUGHTY, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 9th District Court Montgomery County, Texas Trial Court Case No. 12-07-07650 CR
MEMORANDUM OPINION
Amber Nicole Doughty pleaded guilty to first-degree felony aggregated
theft.1 The trial court assessed punishment at 40 years’ confinement, ordered her to
pay a $10,000 fine and an additional $16,011 in court-appointed attorney’s fees,
1 TEX. PENAL CODE ANN. § 31.03 (West 2011). and placed four additional conditions on her sentence. In two issues, Doughty
contends that the trial court erred by (1) issuing four “special orders” that place
unauthorized conditions on her confinement and parole and (2) assessing as
punishment an obligation to pay attorney’s fees.
We reform the trial court’s judgment and affirm the judgment as reformed.
Background
The trial court’s sentence includes four special orders that require Doughty
to: (1) keep a picture of her victim and her victim’s family in her cell during her
incarceration; (2) cease contact with a person she is romantically interested in; (3)
upon parole, wear a t-shirt stating “I AM A THIEF”; and (4) submit all of her
financial information to law enforcement upon request. Doughty timely objected to
the last three of the special orders.
Doughty appealed. Her original appellate counsel filed an Anders brief,
concluding that the record revealed no error requiring appellate review. The State
waived the opportunity to respond. This Court disagreed with the Anders brief and
remanded the matter to the trial court for appointment of new counsel.
Doughty now challenges the trial court’s authority to issue the four special
orders and impose attorney’s fees on her, an indigent defendant. The State
concedes both issues.
2 Special Orders
In her first issue, Doughty contends that the trial court’s special orders
constitute a punishment beyond what is statutorily authorized.
A. Standard of review
An unauthorized sentence is illegal and has no legal effect. Ex parte Rich,
194 S.W.3d 508, 512 (Tex. Crim. App. 2006). Whether a sentence exceeds the
range of punishment authorized by statute is a question of law reviewed de novo.
See Yazdchi v. State, 428 S.W.3d 831, 837 (Tex. Crim. App. 2014); Kuhn v. State,
45 S.W.3d 207, 209 (Tex. App.—Texarkana 2001, pet. ref’d). A trial or appellate
court that otherwise has jurisdiction “may always notice and correct an illegal
sentence.” Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). If the trial
court imposes an unauthorized sentencing condition, the proper remedy is “to
reform the judgment to delete the unauthorized condition.” Garner v. State, 864
S.W.2d 92, 103 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d).
B. Preservation of error
Doughty timely objected to three of the four special orders; she failed to
object to the requirement that she keep a picture of her victim in her prison cell.
Doughty asserts that each special order is an illegal addition to her sentence.
“Unlike most trial errors which are forfeited if not timely asserted, a party is not
required to make a contemporaneous objection to the imposition of an illegal
3 sentence.” Mizell, 119 S.W.3d at 806 n.6. The State concedes that Doughty did not
need to make a timely objection to preserve her appeal. We agree, and therefore
reach the merits of Doughty’s complaint against each of the special orders,
including the photograph requirement.
C. Scope of the trial court’s sentencing power
A trial court may not impose a sentence that is beyond what is statutorily
authorized for a particular offense. See Gallegos v. State, 754 S.W.2d 485, 489
(Tex. App.—Houston [1st Dist.] 1988, no pet.). The Legislature has specifically
defined “the allowable range of punishment for a given offense” that a trial court
may assess for aggregated theft. Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim.
App. 1999) (“[E]very option available to the court is narrowly identified on the
face of the statute.”). The Texas Penal Code authorizes the trial court to assess
punishment for first-degree felony convictions of confinement for not more than 99
years or less than 5 years and a fine not to exceed $10,000. TEX. PENAL CODE ANN.
§ 12.32 (West 2011). If the trial court assesses a punishment that is not permitted
by statute, the sentence is “unauthorized” and “illegal.” See Mizell, 119 S.W.3d at
806.
The Texas Department of Criminal Justice (“TDCJ”), an executive-branch
agency, “shall operate and manage the state prison system.” See TEX. GOV’T CODE
ANN. § 493.004 (West 2012). Additionally, TDCJ has the exclusive authority to
4 manage inmates’ parole. See TEX. GOV’T CODE ANN. § 493.005 (West 2012) (“The
pardons and paroles division shall supervise and reintegrate felons into society
after release from confinement.”); see also TEX. GOV’T CODE ANN. § 508.0441(a)
(West 2012) (“Board members and parole commissioners shall determine . . .
conditions of parole . . . .”); McNeill v. State, 991 S.W.2d 300, 302 (Tex. App.—
Houston [1st Dist.] 1999, pet. struck) (parole board has sole authority to place
conditions on parole).
D. The special orders go beyond the trial court’s authority
The trial court’s special orders impose conditions upon Doughty’s
confinement and parole. The State concedes that the conditions were unauthorized
by statute and should be deleted from the judgment. See Tufele v. State, 130
S.W.3d 267, 273 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
In Tufele, the trial court ordered the defendant to display two photographs of
the victim in his jail cell for the duration of his confinement. Id. at 272. The
defendant argued on appeal that the confinement condition exceeded the trial
court’s authority. Id. at 273. The appellate court agreed that the condition was not
within the statutory range of punishment for the crime and that the condition was
illegal and void. Id.
In this case, as in Tufele, the trial court exceeded its authority by imposing a
sentence beyond the range of punishment authorized by the Legislature. The four
5 special orders are unauthorized conditions on Doughty’s sentence and are void.2
Accordingly, we reform the judgment, striking the four special orders.
Attorney’s Fees
In her second issue, Doughty contends that repayment of court-appointed
attorney’s fees is not authorized because she is indigent and the State presented no
evidence indicating that she had the ability to pay, as required under Article
26.05(g) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC.
ANN. art. 26.05(g) (West Supp. 2014) (requiring trial court to find that “defendant
has financial resources that enable him to offset . . . the costs of the legal services
provided . . .”).
We review the assessment of court costs, including court-appointed
attorney’s fees, to determine if a basis exists for the award. See Johnson v. State,
423 S.W.3d 385, 389–90 (Tex. Crim. App. 2014). If there is no basis in the record
to support assessment of court-appointed attorney’s fees, the proper remedy is to
reform the judgment by striking the court-appointed attorney’s fees. Cates v. State,
402 S.W.3d 250, 251–52 (Tex. Crim. App. 2013).
2 Doughty further urges us to find that the trial court violated the separation-of- powers clause of the Texas Constitution. Because we find that the four special orders constitute a sentence not authorized by law, we do not reach the merits of Doughty’s constitutional claim. 6 B. Assessment of court-appointed attorney’s fees
An indigent defendant is entitled to have an attorney appointed to represent
her in criminal proceedings at no cost. TEX. CODE CRIM. PROC. ANN. art. 1.051
(West 2005). Once the court determines that a defendant is indigent, the defendant
is presumed to remain indigent for the duration of the proceedings. TEX. CODE
CRIM. PROC. ANN. art. 26.04 (West Supp. 2013); Cates, 402 S.W.3d at 251–52. A
material change in the defendant’s financial circumstances must occur to overcome
this presumption. TEX. CODE CRIM. PROC. ANN. art. 26.04; Cates, 402 S.W.3d at
251–52. If the trial court later finds that the defendant has resources to pay the
court-appointed attorney’s fees, the court may order her to do so. TEX. CODE CRIM.
PROC. ANN. art. 26.05(g).
The trial court determined that Doughty was indigent and appointed counsel
on her behalf. The State concedes that the record does not show that at the time of
judgment Doughty was capable of paying the cost for her appointed counsel. Thus,
there is no evidence to overcome the presumption of Doughty’s continuing
indigence. An order to pay for an attorney violates an indigent defendant’s right to
cost-free legal counsel. Accordingly, we reform the judgment, striking the order to
repay court-appointed attorney’s fees.
7 Conclusion
We sustain both of Doughty’s issues. We reform the trial court’s judgment
by striking the four special orders and the order to pay attorney’s fees. We affirm
the judgment as reformed.
Harvey Brown Justice
Panel consists of Justices Massengale, Brown, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).