In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-19-00414-CR ___________________________
COURTLYN LEVINE AKA COURTLYN LEVINENEWTON, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 396th District Court Tarrant County, Texas Trial Court No. 1513617D
Before Sudderth, C.J., Gabriel, and Womack, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION
I. INTRODUCTION
In 2018, Appellant Courtlyn Levine (aka Courtlyn Levinenewton) pleaded
guilty to the offense of aggravated assault with a deadly weapon, and the trial court
placed him on deferred adjudication community supervision. In 2019, the trial court
proceeded to adjudicate Appellant guilty and sentenced him to fourteen years in the
penitentiary.
On appeal, Appellant contests neither the trial court’s decision to adjudicate his
guilt nor his fourteen-year sentence; rather, in a single point, he attacks the trial court’s
decision to order him to pay $1,175 in reparations.1 Because the record supports
reparations for all but $15 of the $1,175 that the trial court ordered, we modify the
judgment to reflect reparations in the amount of $1,160 and, as modified, affirm the
trial court’s judgment.
II. REPARATIONS
Appellant argues that the trial court abused its discretion by ordering him to
pay $1,175 in reparations because the State presented no evidence at the adjudication
hearing showing that he owed fees or any kind of “restitution.” Appellant notes that
1 Appellant concedes in his reply brief that his opening brief’s other point, in which he challenged the $1,700 in attorney’s fees assessed in the trial court’s now- defunct deferred-adjudication-community-supervision order, is moot because those fees were not incorporated into the trial court’s order adjudicating his guilt. See Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004).
2 Section 2(b) of Article 42.03 of the Texas Code of Criminal Procedure requires
ordering “restitution due” and that restitution requires evidentiary support. See Tex.
Code Crim. Proc. Ann. art. 42.03, § 2(b);2 Burt v. State, 445 S.W.3d 752, 758 (Tex.
Crim. App. 2014). Buttressing this contention, Appellant notes further that in the
State’s second amended petition to proceed to an adjudication, it alleged that
• Appellant had not paid his probation fee of $60 in April 2018 and
• Appellant had not paid his lab fee of $35 in April 2018.
Appellant next points to the close of the adjudication hearing when the trial court
found those two allegations not true because the State had not presented any evidence
to support them.
We disagree with Appellant’s premise. The trial court did not order restitution
under Section 2(b) of Article 42.03.
Restitution is intended to compensate victims. See Tex. Code Crim. Proc. Ann.
art. 42.037(a). And it “must be for only the victim or victims of the offense for which
2 Before January 1, 2017, Section 2(b) required trial courts to enter an order for the “restitution or reparation due and owing”; beginning January 1, 2017, Section 2(b) requires entering an order only for the “restitution due and owing.” Act of May 26, 2015, 84th Leg., R.S., ch. 770, §§ 2.12, 4.02, 2015 Tex. Sess. Law Serv. 2320, 2369, 2394 (codified at Tex. Code Crim. Proc. Ann. art. 42.03, § 2(b)); see Mercer v. State, 451 S.W.3d 846, 851 n.3 (Tex. Crim. App. 2015) (Alcala, J., concurring) (“Reparation” may be nothing more than “an alternative phrasing for restitution.”); Sheridan v. State, Nos. 11-19-00303-CR, 11-19-00304-CR, 2020 WL 1887710, at *3 (Tex. App.— Eastland Apr. 16, 2020, no pet.) (per curiam) (mem. op., not designated for publication).
3 the defendant is charged.” Burt, 445 S.W.3d at 758; see Hanna v. State, 426 S.W.3d 87,
91 (Tex. Crim. App. 2014). Further, “restitution . . . is similar to a fine in that it is
punitive [and] must be orally pronounced.” Lyle v. State, No. 02-17-00227-CR, 2019
WL 3024480, at *3 (Tex. App.—Fort Worth July 11, 2019, pet. ref’d) (mem. op., not
designated for publication) (citing Weir v. State, 278 S.W.3d 364, 366–67 (Tex. Crim
App. 2009)). Evidentiary-sufficiency principles apply to restitution. See Burt,
445 S.W.3d at 758.
The ordered reparations were not to compensate any victims. The
“Revocation Restitution / Reparation Balance Sheet” and the “All Transactions for a
Case” printout both show that the $1,175 in reparations consisted of two parts:
$1,140 was owed for probation fees, and $35 was owed to the Community
Supervision and Corrections Department (CSCD). Neither the unpaid probation fees
nor the money owed to the CSCD have anything to do with the victim. The trial
court thus could not order Appellant to pay either as restitution. See id. But the trial
court did not order Appellant to pay these amounts as restitution; rather, the trial
court ordered Appellant to pay them as reparations.3
3 “Reparation” is not defined in the Texas Code of Criminal Procedure. See Mercer, 451 S.W.3d at 851 n.3 (Alcala, J., concurring). One well-respected dictionary defines “reparation” as
• “the act or process of mending or restoring: a repairing or keeping in repair”;
• “the act of making amends, offering expiation, or giving satisfaction for a wrong or injury” or “something done or given as amends or satisfaction”; and
4 We have held that evidentiary-sufficiency principles do not apply to
reparations. See Zamarripa v. State, 506 S.W.3d 715, 716 (Tex. App.—Fort Worth
2016, pet. ref’d). The reparations must, however, have some sort of record support.
See id. at 716–17; Taylor v. State, No. 02-15-00425-CR, 2016 WL 3159156, at *5 (Tex.
App.—Fort Worth June 2, 2016, pet. ref’d) (mem. op., not designated for
publication); Tucker v. State, Nos. 02-15-00265-CR, 02-15-00266-CR, 2016 WL
742087, at *2 (Tex. App.—Fort Worth Feb. 25, 2016, pet. ref’d) (mem. op., not
designated for publication). But see Lewis v. State, 423 S.W.3d 451, 459–60 (Tex.
App.—Fort Worth 2013, pet. ref’d) (applying evidentiary-sufficiency principle but
addressed and distinguished by Taylor).4
Appellant next asks us to reconsider Zamarippa because it correlated unpaid
probation fees to court costs. In Zamarippa, we relied on an opinion from the Texas
Court of Criminal Appeals. 506 S.W.3d at 716 n.3 (citing Johnson v. State, 423 S.W.3d
• “the payment of damages: INDEMNIFICATION.”
Reparation, Webster’s Third New Int’l Dictionary (2002). 4 At the adjudication hearing, the State produced no evidence to support the allegations that Appellant had not paid his probation and lab fees in April 2018, and (as Appellant correctly notes) the trial court found them not true. This meant that the State could not proceed to an adjudication based on those allegations but not that those allegations were false; rather, it meant that the State had not met its burden to prove them true by a preponderance of the evidence. See Cobb v.
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In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-19-00414-CR ___________________________
COURTLYN LEVINE AKA COURTLYN LEVINENEWTON, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 396th District Court Tarrant County, Texas Trial Court No. 1513617D
Before Sudderth, C.J., Gabriel, and Womack, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION
I. INTRODUCTION
In 2018, Appellant Courtlyn Levine (aka Courtlyn Levinenewton) pleaded
guilty to the offense of aggravated assault with a deadly weapon, and the trial court
placed him on deferred adjudication community supervision. In 2019, the trial court
proceeded to adjudicate Appellant guilty and sentenced him to fourteen years in the
penitentiary.
On appeal, Appellant contests neither the trial court’s decision to adjudicate his
guilt nor his fourteen-year sentence; rather, in a single point, he attacks the trial court’s
decision to order him to pay $1,175 in reparations.1 Because the record supports
reparations for all but $15 of the $1,175 that the trial court ordered, we modify the
judgment to reflect reparations in the amount of $1,160 and, as modified, affirm the
trial court’s judgment.
II. REPARATIONS
Appellant argues that the trial court abused its discretion by ordering him to
pay $1,175 in reparations because the State presented no evidence at the adjudication
hearing showing that he owed fees or any kind of “restitution.” Appellant notes that
1 Appellant concedes in his reply brief that his opening brief’s other point, in which he challenged the $1,700 in attorney’s fees assessed in the trial court’s now- defunct deferred-adjudication-community-supervision order, is moot because those fees were not incorporated into the trial court’s order adjudicating his guilt. See Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004).
2 Section 2(b) of Article 42.03 of the Texas Code of Criminal Procedure requires
ordering “restitution due” and that restitution requires evidentiary support. See Tex.
Code Crim. Proc. Ann. art. 42.03, § 2(b);2 Burt v. State, 445 S.W.3d 752, 758 (Tex.
Crim. App. 2014). Buttressing this contention, Appellant notes further that in the
State’s second amended petition to proceed to an adjudication, it alleged that
• Appellant had not paid his probation fee of $60 in April 2018 and
• Appellant had not paid his lab fee of $35 in April 2018.
Appellant next points to the close of the adjudication hearing when the trial court
found those two allegations not true because the State had not presented any evidence
to support them.
We disagree with Appellant’s premise. The trial court did not order restitution
under Section 2(b) of Article 42.03.
Restitution is intended to compensate victims. See Tex. Code Crim. Proc. Ann.
art. 42.037(a). And it “must be for only the victim or victims of the offense for which
2 Before January 1, 2017, Section 2(b) required trial courts to enter an order for the “restitution or reparation due and owing”; beginning January 1, 2017, Section 2(b) requires entering an order only for the “restitution due and owing.” Act of May 26, 2015, 84th Leg., R.S., ch. 770, §§ 2.12, 4.02, 2015 Tex. Sess. Law Serv. 2320, 2369, 2394 (codified at Tex. Code Crim. Proc. Ann. art. 42.03, § 2(b)); see Mercer v. State, 451 S.W.3d 846, 851 n.3 (Tex. Crim. App. 2015) (Alcala, J., concurring) (“Reparation” may be nothing more than “an alternative phrasing for restitution.”); Sheridan v. State, Nos. 11-19-00303-CR, 11-19-00304-CR, 2020 WL 1887710, at *3 (Tex. App.— Eastland Apr. 16, 2020, no pet.) (per curiam) (mem. op., not designated for publication).
3 the defendant is charged.” Burt, 445 S.W.3d at 758; see Hanna v. State, 426 S.W.3d 87,
91 (Tex. Crim. App. 2014). Further, “restitution . . . is similar to a fine in that it is
punitive [and] must be orally pronounced.” Lyle v. State, No. 02-17-00227-CR, 2019
WL 3024480, at *3 (Tex. App.—Fort Worth July 11, 2019, pet. ref’d) (mem. op., not
designated for publication) (citing Weir v. State, 278 S.W.3d 364, 366–67 (Tex. Crim
App. 2009)). Evidentiary-sufficiency principles apply to restitution. See Burt,
445 S.W.3d at 758.
The ordered reparations were not to compensate any victims. The
“Revocation Restitution / Reparation Balance Sheet” and the “All Transactions for a
Case” printout both show that the $1,175 in reparations consisted of two parts:
$1,140 was owed for probation fees, and $35 was owed to the Community
Supervision and Corrections Department (CSCD). Neither the unpaid probation fees
nor the money owed to the CSCD have anything to do with the victim. The trial
court thus could not order Appellant to pay either as restitution. See id. But the trial
court did not order Appellant to pay these amounts as restitution; rather, the trial
court ordered Appellant to pay them as reparations.3
3 “Reparation” is not defined in the Texas Code of Criminal Procedure. See Mercer, 451 S.W.3d at 851 n.3 (Alcala, J., concurring). One well-respected dictionary defines “reparation” as
• “the act or process of mending or restoring: a repairing or keeping in repair”;
• “the act of making amends, offering expiation, or giving satisfaction for a wrong or injury” or “something done or given as amends or satisfaction”; and
4 We have held that evidentiary-sufficiency principles do not apply to
reparations. See Zamarripa v. State, 506 S.W.3d 715, 716 (Tex. App.—Fort Worth
2016, pet. ref’d). The reparations must, however, have some sort of record support.
See id. at 716–17; Taylor v. State, No. 02-15-00425-CR, 2016 WL 3159156, at *5 (Tex.
App.—Fort Worth June 2, 2016, pet. ref’d) (mem. op., not designated for
publication); Tucker v. State, Nos. 02-15-00265-CR, 02-15-00266-CR, 2016 WL
742087, at *2 (Tex. App.—Fort Worth Feb. 25, 2016, pet. ref’d) (mem. op., not
designated for publication). But see Lewis v. State, 423 S.W.3d 451, 459–60 (Tex.
App.—Fort Worth 2013, pet. ref’d) (applying evidentiary-sufficiency principle but
addressed and distinguished by Taylor).4
Appellant next asks us to reconsider Zamarippa because it correlated unpaid
probation fees to court costs. In Zamarippa, we relied on an opinion from the Texas
Court of Criminal Appeals. 506 S.W.3d at 716 n.3 (citing Johnson v. State, 423 S.W.3d
• “the payment of damages: INDEMNIFICATION.”
Reparation, Webster’s Third New Int’l Dictionary (2002). 4 At the adjudication hearing, the State produced no evidence to support the allegations that Appellant had not paid his probation and lab fees in April 2018, and (as Appellant correctly notes) the trial court found them not true. This meant that the State could not proceed to an adjudication based on those allegations but not that those allegations were false; rather, it meant that the State had not met its burden to prove them true by a preponderance of the evidence. See Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). For reparations’ purposes, all the State needed was record support, not evidentiary support by a preponderance of the evidence. See Zamarripa, 506 S.W.3d at 716–17.
5 385, 390 (Tex. Crim. App. 2014)). That court wrote, “[C]ourt costs are not part of the
guilt or sentence of a criminal defendant, nor must they be proven at trial; rather, they
are a nonpunitive recoupment of the costs of judicial resources expended in
connection with the trial of the case.” Johnson, 423 S.W.3d at 390 (internal quotation
marks omitted). “As a result,” the court added, “we review the assessment of court
costs on appeal to determine if there is a basis for the cost, not to determine if there
was sufficient evidence offered at trial to prove each cost, and the traditional . . .
evidentiary-sufficiency principles do not apply.” Id.
Because probation-related fees are “not part of the guilt or sentence of a
criminal defendant” and because they are “a nonpunitive recoupment of the costs of
judicial resources expended in connection with” Appellant’s case, correlating unpaid
probation-related fees to costs makes eminent sense. See Johnson, 423 S.W.3d at 390;
Zamarripa, 506 S.W.3d at 716–17. We stand by Zamarippa.
We have already held that the first category, unpaid probation fees, may be
taxed against a defendant as reparations. Maxion v. State, No. 02-18-00176-CR, 2019
WL 3269324, at *2 (Tex. App.—Fort Worth July 18, 2019, pet. ref’d) (mem. op. on en
banc reconsideration, not designated for publication); Kitchen v. State, 594 S.W.3d 429,
432 (Tex. App.—Fort Worth 2019, pet. ref’d) (op. on en banc reconsideration);
Hongpathoum v. State, 578 S.W.3d 213, 216 (Tex. App.—Fort Worth 2019, no pet.).
The record thus supports reparations for the $1,140 in probation fees. That leaves
the $35 owed to the CSCD.
6 The State argues that $20 of the $35 can be attributed to a crime-stoppers fee
that the trial court ordered Appellant to pay as a probation condition. Both Appellant
and the record are totally silent on whether he paid the crime-stoppers fee; under
these circumstances, the crime-stopper fee may be attributed to reparations. See
Sanders v. State, No. 02-19-00029-CR, 2019 WL 4010358, at *2 (Tex. App.—Fort
Worth Aug. 26, 2019, no pet.) (mem. op., not designated for publication); Ayala v.
State, No. 02-17-00385-CR, 2018 WL 2727954, at *1 (Tex. App.—Fort Worth June 7,
2018, no pet.) (mem. op., not designated for publication).
Next, the State concedes that the record does not support the remaining $15.
We too find no record support for that amount. Accordingly, we sustain this portion
of Appellant’s remaining point to the extent that we will delete $15 from the ordered
reparations. See Sanders, 2019 WL 4010358, at *3.
III. CONCLUSION
Having sustained Appellant’s remaining point in part, we modify the judgment
to assess $1,160 in reparations. See Sanders, 2019 WL 4010358, at *3. We additionally
modify the order to withdraw funds to reflect that the amount of “[c]ourt costs, fees
and/or fines and/or restitution” incurred is $1,160. See id. As modified, we affirm
the trial court’s judgment. See Tex. R. App. P. 43.2(b).
7 /s/ Dana Womack
Dana Womack Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: September 10, 2020