Cedric Tyrone Scott Jr. A/K/A Cedric Tyrone Scott v. State

• Court: Court of Appeals of Texas
• Decided: January 23, 2015
• Docket: 02-14-00448-CR
• Status: Published

Opinion

ACCEPTED 02-14-00448-CR SECOND COURT OF APPEALS FORT WORTH, TEXAS 1/23/2015 1:51:23 PM DEBRA SPISAK CLERK

NOS. 02-14-00448-CR 02-14-00449-CR ________________________________ FILED IN 2nd COURT OF APPEALS FORT WORTH, TEXAS IN THE COURT OF APPEALS 1/23/2015 1:51:23 PM FOR THE SECOND JUDICIAL DISTRICT DEBRA SPISAK OF TEXAS AT FORT WORTH Clerk ________________________________

CEDRIC TYRONE SCOTT, JR., Appellant

V.

THE STATE OF TEXAS, Appellee ________________________________

ON APPEAL FROM CRIMINAL DISTRICT COURT NO. TWO OF TARRANT COUNTY, TEXAS THE HONORABLE WAYNE SALVANT, PRESIDING JUDGE IN CAUSE NOS. 1320181D & 1324883D _____________________________________

APPELLANT’S BRIEF

Kimberley Campbell TBN: 03712020 Factor, Campbell & Collins Attorneys at Law 5719 Airport Freeway Fort Worth, Texas 76117 Phone: (817) 222-3333 Fax: (817) 222-3330 E-mail: lawfactor@yahoo.com Attorneys for Appellant Cedric Tyrone Scott, Jr.

NO ORAL ARGUMENTS REQUESTED IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of all parties to the trial court’s final judgment, as well as the names and addresses of all trial and appellate counsel.

Appellant: Cedric Tyrone Scott, Jr.

Appellant’s Trial Counsel: Hon. Tracie Kenan TBN: 24041232 Attorney at Law 4500 Airport Freeway Fort Worth, Texas 76117

Appellant’s Counsel Hon. Kimberley Campbell on Appeal: TBN: 03712020 Factor, Campbell & Collins Attorneys at Law 5719 Airport Freeway Fort Worth, Texas 76117

Appellee: The State of Texas

Appellee’s Trial Counsel: Hon. Andrea Townsend TBN: 24041260 Assistant District Attorney Tarrant County, Texas 401 W. Belknap Fort Worth, Texas 76196

Appellee’s Counsel Hon. Charles Mallin on Appeal: TBN: 12867400 Assistant District Attorney 401 W. Belknap Fort Worth, Texas 76196 TABLE OF CONTENTS page

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .i

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

POINTS OF ERROR PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

I. The fines assessed in the Judgments Adjudicating Guilt was not pronounced orally and must therefore be deleted from the Judgment. . . . . 4

A. Preservation of Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

i TABLE OF AUTHORITIES

Cases page

Armstrong v. State, 340 S.W.3d 759 (Tex. Crim. App. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Boyd v. State, No. 02–11–00035–CR, 2012 WL 1345751 (Tex. App.– Fort Worth Apr.19, 2012, no pet.) (mem. op., not designated for publication). . . . . . . . . . . . . . . 6, 7

Smith v. State, 290 S.W.3d 368, 377 (Tex. App.–Houston [14th Dist.] 2009, pet. ref’d). . . . . .4

Smith v. State, No. 02–11–00295–CR, 2012 WL 2036467 (Tex. App.– Fort Worth, June 7, 2012, no pet.) (mem. op., not designated for publication). . . . . . . . . . . . . .5, 6, 7

Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004). . . . . . . . . . . . . . . . . . . . . . 4, 5, 6, 7

Washington v. State, No. 02–11–00152–CR, 2012 WL 1345743, at *1–2 (Tex. App.– Fort Worth Apr.19, 2012, no pet.) (mem. op., not designated for publication). . . . . . . . . . . . . . . .6, 7

Statutes

T EX. P ENAL C ODE A NN. § 22.01(b)(2)(B) (West 2011). . . . . . . . . . . . . . . . . . . . . . . . .1, 2

Court Rules

T EX. R. A PP. P. 25.2(A)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

T EX. R. A PP. P. 43.2(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ii STATEMENT OF THE CASE

On May 30, 2013, pursuant to a plea bargain agreement, Cedric Tyrone Scott,

Jr. (“Mr. Scott” or “Appellant”) was placed on five (5) years deferred adjudication

community supervision for two counts of the third-degree felony offense of assault

on a family member while impeding breath or circulation. (181 C.R. 24; 883 C.R. 20);1

see T EX. P ENAL C ODE A NN. § 22.01(b)(2)(B) (West 2011).

In September of 2014, the State filed the instant Supplemental Petitions to

Proceed to Adjudication, in which it alleged that Mr. Scott had failed to report for

June, July and September of 2014. (181 C.R. 53; 883 C.R. 40). The trial court found the

allegations true, adjudicated Mr. Scott guilty, and on October 20, 2014, sentenced

him to two concurrent two (2) year sentences in TDCJ-CID. (181 C.R. 62; 883 C.R. 49;

III R.R. 30; IV R.R. 16-17). 2013 until January 10, 2014). Timely Notices of Appeal

were filed on October 20, 2014. (181 C.R. 68; 883 C.R. 55).

1 References to the Clerk’s Record in Cause Number 1320181D will be designated as “181 C.R. xx” and references to the Clerk’s Record in Cause Number 1324883D will be designated as “883 C.R. xx.”

1 POINTS OF ERROR PRESENTED

POINT OF ERROR ONE

I. The fines assessed in the Judgments Adjudicating Guilt was not pronounced orally and must therefore be deleted from the Judgment.

STATEMENT OF FACTS

On May 30, 2013, pursuant to a plea bargain agreement, Cedric Tyrone Scott,

Jr. (“Mr. Scott” or “Appellant”) was placed on five (5) years deferred adjudication

community supervision for two counts of the third-degree felony offense of assault

on a family member while impeding breath or circulation. (181 C.R. 24; 883 C.R. 20);

see T EX. P ENAL C ODE A NN. § 22.01(b)(2)(B) (West 2011). In each Order of Deferred

Adjudication, a fine of $500 was assessed. (181 C.R. 24; 883 C.R. 20).

In September of 2014, the State filed the instant Supplemental Petitions to

Proceed to Adjudication, in which it alleged that Mr. Scott had failed to report for

June, July and September of 2014. (181 C.R. 53; 883 C.R. 40). The trial court found the

allegations true, adjudicated Mr. Scott guilty, and on October 20, 2014, sentenced

him to two concurrent two (2) year sentences in TDCJ-CID. (181 C.R. 62; 883 C.R. 49;

III R.R. 30; IV R.R. 16-17). 2013 until January 10, 2014).

Assessed in each Judgment Adjudicating Guilt are “Reparations.” (181 C.R.

62; 883 C.R. 49). Included in the Clerk’s Records are REVOCATION

RESTITUTION/REPARATION BALANCE SHEETS on letterheads of the

2 Community Supervision and Corrections Department of Tarrant County, wherein

each of the $500 fines assessed when Mr. Scott was originally placed on deferred

adjudication are included as “Reparations.” (181 C.R. 60; 883 C.R. 47). Also included

in the Clerk’s Records are computer printouts from the Tarrant County District

Clerk entitled “List of Fee Breakdowns” wherein “Fines CDC #2" in the amount of

$500 in each case are included in the fees owed by Mr. Scott. (181 C.R. 59; 883 C.R.

48). The trial court failed to announce any fines when it pronounced Mr. Scott’s

sentence. (IV R.R. 16-17).

SUMMARY OF THE ARGUMENT

The fines assessed in the Judgments Adjudicating Guilt were not orally

pronounced. As the orally-pronounced sentence controls over the written sentence,

the fines must be deleted from the Judgments.

ARGUMENT AND AUTHORITIES

Jurisdiction

Pursuant to Texas Rule of Appellate Procedure 25.2(a)(2), the clerk’s records

contains the Trial Court’s Certifications of Defendant’s Right of Appeal, which states

that these are not plea bargained cases and the defendant has the right of appeal.

(181 C.R. 67; 883 C.R. 54); See T EX. R. A PP. P. 25.2(A)(2).

3 POINT OF ERROR ONE (RESTATED)

I. The fines assessed in the Judgments Adjudicating Guilt was not pronounced orally and must therefore be deleted from the Judgment.

A. Controlling Law

When guilt is adjudicated upon a violation of a condition of community

supervision, the order adjudicating guilt sets aside the order deferring adjudication,

including any previously imposed fines. Taylor v. State, 131 S.W.3d 497, 502 (Tex.

Crim. App. 2004) (reasoning that appellant was not sentenced until his guilt was

adjudicated and that the trial court was required to orally pronounce fine during

sentencing); see also Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011)

(noting that fines are punitive).

Further, when the oral pronouncement of sentence and the written judgment

vary, the oral pronouncement controls. Taylor, 131 S.W.3d at 500, 502. And when the

appellate court has the necessary information before it, it may correct a trial court’s

written judgment to reflect its oral pronouncement, including the modification of a

judgment adjudicating guilt after revocation of deferred adjudication community

supervision so that it conforms to the trial court’s oral pronouncement of the

findings supporting revocation and adjudication. See id. at 502; Smith v. State, 290

S.W.3d 368, 377 (Tex. App.–Houston [14th Dist.] 2009, pet. ref’d); see also T EX. R. A PP.

P. 43.2(B).

4 B. Application

Here, the $500 fines were pronounced in the Orders of Deferred Adjudication.

(181 C.R. 24; 883 C.R. 20). When the trial court later adjudicated Mr. Scott guilty, the

original Orders of Deferred Adjudication were set aside, including the $500 fines

assessed. Taylor, 131 S.W.3d at 502. Although the written Judgments include the

fines, the trial court failed to orally announce any fines when it pronounced Mr.

Scott’s sentence. (IV R.R. 16-17). When the oral pronouncement of sentence and the

written judgment vary, the oral pronouncement controls. Taylor, 131 S.W.3d at 500,

502.

The fact that the fines are labeled as “Reparations” in the Judgments does not

change their nature as fines. In Smith v. State, No. 02–11–00295–CR, 2012 WL 2036467

(Tex. App.–Fort Worth, June 7, 2012, no pet.) (mem. op., not designated for

publication), Smith pleaded guilty to a third-degree felony offense in exchange for

an assessment of a $500 fine and court costs, five years’ deferred adjudication

community supervision, and other terms and conditions. Id. at *1. The trial court’s

order of deferred adjudication mirrored the plea bargain agreement and specified

that the $500 fine was not suspended and that Smith owed $330 in court costs. Id.

The terms and conditions of Smith’s community supervision included the $500 fine

and $330 in court costs. Id.

5 Later, the state moved to adjudicate Smith’s guilt. At the revocation hearing,

Smith pleaded “true” to the first three of the four allegations contained in the State's

first amended petition to proceed to adjudication. At the conclusion of the hearing,

the trial court stated that it found Smith guilty “as a result of [her] pleas of true,”

and it sentenced her to five years’ confinement. Id. The judgment adjudicating guilt

includes a statement of “REPARATIONS IN THE AMOUNT OF $418.00,” and lists

Smith’s court costs as $355. Included in the record was a document from the

Community Supervision and Corrections Department of Tarrant County showing

that Smith owed a $418 fine. Id.

This Court held that

[b]ecause the trial court did not include the fine previously assessed in its order deferring adjudication in its oral pronouncement of sentence, we reform the judgment adjudicating guilt to delete the $418 listed as reparations on the judgment.

Id. at *2 (citing Taylor, 131 S.W.3d at 502); see also Washington v. State, No.

02–11–00152–CR, 2012 WL 1345743, at *1–2 (Tex. App.–Fort Worth Apr.19, 2012, no

pet.) (mem. op., not designated for publication) (reforming judgment adjudicating

guilt to delete language regarding payment of the portion of reparations made up

of fines that had been previously assessed in the order deferring adjudication and

that had not been included in the trial court’s oral pronouncement of sentence); Boyd

v. State, No. 02–11–00035–CR, 2012 WL 1345751, at *1–2 (Tex. App.–Fort Worth

6 Apr.19, 2012, no pet.) (mem. op., not designated for publication) (same).

As directed by the Court of Criminal Appeals in Taylor, and as this Court held

previously in Smith, Washington, and Boyd, so should this Court hold here. See Taylor,

131 S.W.3d at 502; Smith, 2012 WL 2036467 at *2; Washington, 2012 WL 1345743 at *1-

2; Boyd, 2012 WL 1345751, at *1-2.

PRAYER

PREMISES CONSIDERED, Appellant Cedric Tyrone Scott, Jr. respectfully

requests that this Court sustain the point of error in this brief and that this Court

modify the Judgment in this case by deleting the fines assessed. See Tex. R. App. P.

43.2(b). Appellant further prays that he be granted any such further relief to which

he may show himself entitled.

Respectfully submitted,

/s/Kimberley Campbell Kimberly Campbell TBN: 03712020 Factor, Campbell & Collins Attorneys at Law 5719 Airport Freeway Fort Worth, Texas 76117 Phone: (817) 222-3333 Fax: (817) 222-3330 E-mail: lawfactor@yahoo.com Attorneys for Appellant

7 CERTIFICATE OF COMPLIANCE

I hereby certify that the word count for the portion of this filing covered by Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is 1,998.

/s/Kimberley Campbell Kimberly Campbell

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has been furnished to counsel for the State/Appellee listed below by a manner compliant with the rules on this 23rdday of January , 2015.

Criminal District Attorney Tarrant County, Texas 401 W. Belknap Fort Worth, Texas 76196