Deven Deshon Rosser v. the State of Texas

Opinion

In the Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-22-00172-CR

DEVEN DESHON ROSSER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 6th District Court Red River County, Texas Trial Court No. CR03258

Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Justice van Cleef MEMORANDUM OPINION

After Deven Deshon Rosser’s community supervision was revoked, the trial court

sentenced him to two years’ imprisonment for the offense of endangering a child1 and ten years’

imprisonment for the offense of family violence assault.2 The cases were tried together and have

been appealed and briefed separately.

Here, Rosser appeals from his revocation for endangering a child.3 He contends (1) that

the judgment revoking his community supervision should be modified to reflect that the two

sentences were to be served concurrently and (2) that the judgment’s assessment of a $100.00

reimbursement fee is not supported by the record. Because we find Rosser’s points of error to be

without merit, we affirm the trial court’s judgment revoking community supervision.

I. Background

In February 2022, pursuant to a plea-bargain agreement, Rosser pled guilty to

endangering a child and family violence assault. As to the offense of endangering a child, the

trial court sentenced him to two years’ confinement, suspended that sentence, and then placed

him on five years’ community supervision. As to the offense of family violence assault, the trial

court sentenced him to ten years’ imprisonment, suspended that sentence, and placed him on ten

years’ community supervision. In each case, he was assessed a reimbursement fee of $75.00.

1 TEX. PENAL CODE ANN. § 22.041 (Supp.). 2 TEX. PENAL CODE ANN. § 22.01 (Supp.). 3 Rosser appeals from his revocation for the offense of family violence assault in companion cause number 06-22- 00173-CR, also decided this day. 2 In June 2022, the State filed a motion to revoke Rosser’s community supervision,

alleging that Rosser violated the terms and conditions of community supervision by (1) failing to

report his change of address to his community supervision officer, (2) committing aggravated

assault with a deadly weapon, (3) committing assault with bodily injury, (4) committing family

violence assault, and (5) committing the offense of unlawfully carrying a weapon as a convicted

felon. Rosser entered a plea of “not true” to each of the State’s revocation allegations. After a

hearing, the trial court found grounds (1), (3), (4), and (5) to be true and revoked Rosser’s

community supervision. As to the offense of endangering a child, the court sentenced Rosser to

two years in the State Jail Division of the Texas Department of Criminal Justice (TDCJ) and

assessed him a reimbursement fee of $100.00, and as to the offense of family violence assault,

the court sentenced Rosser to ten years in the Institutional Division of the TDCJ and assessed

him a reimbursement fee of $100.00. The trial court orally announced that the sentences would

run concurrently.

II. The Sentences Run Concurrently

In his first issue, Rosser asserts that the judgment should be modified to reflect that the

two sentences he received were to be served concurrently.4

Generally, “where the sentence is silent as to any order of cumulation of sentences or

there is an improper order of cumulation[,] the sentence will automatically run concurrently with

4 The State contends that this issue was not preserved for our review. However, this Court has the authority to modify a judgment “to make the record speak the truth when the matter has been called to [our] attention by any source.” French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). “Our authority to reform incorrect judgments is not dependent on the request of any party, nor does it turn on a question of whether a party has or has not objected in trial court; we may act sua sponte and may have a duty to do so.” Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.). 3 any other outstanding sentence.” Ex parte Hernandez, 758 S.W.2d 594, 596 (Tex. Crim. App.

1988) (orig. proceeding) (citing TEX. CODE CRIM. PROC. ANN. art. 42.08); see Moore v. State,

371 S.W.3d 221, 228 (Tex. Crim. App. 2012) (“We have long held that ‘[w]here the court does

not order that two or more sentences in different prosecutions shall be cumulative as permitted

by Article 42.08 . . . , the terms of imprisonment automatically run concurrently.’” (alteration in

original) (quoting Ex parte Reynolds, 462 S.W.2d 605, 606 n.1 (Tex. Crim. App. 1970) (orig.

proceeding))).

Here, the trial court orally pronounced, “These sentences will run concurrent.” The

judgment in this case states, “THIS SENTENCE SHALL RUN CONCURRENTLY WITH.”

Because the judgment reflects that the sentence is to be served concurrently, the judgment

corresponds to the trial court’s oral pronouncement, and the sentences run concurrently.

Therefore, this point of error is without merit.

III. Reimbursement Fee

In his final point of error, Rosser contends that the “judgment included reimbursement

fees of $100, which was not supported by the prior probation judgment or the bill of costs.”

“[W]e 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 . . . .”

Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014).

Here, the judgment revoking community supervision assessed a reimbursement fee of

$100.00. The amended bill of costs reflects the following reimbursement fees:

4 Notice to appear/arrest w/o warrant $5.00 (x6) $30.00

Executing Capias, Warrant, etc. $50.00 (x2) $100.00

Summoning Witness $5.00 (x4) $20.00

Taking and Approving a bond $10.00 $10.00

Commitment fee $5.00 (x2) $10.00

Release Fee $5.00 $5.00

The fees listed total $175.00. Therefore, charges contained in the amended bill of costs do

support the judgment’s imposition of $100.00 in reimbursement fees, and Rosser’s argument is

without merit.

Having found Rosser’s two points of error to be without merit, we affirm the trial court’s

judgment.

Charles van Cleef Justice

Date Submitted: June 6, 2023 Date Decided: June 21, 2023

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