Eddie Ray Jackson v. State

• Court: Court of Appeals of Texas
• Decided: July 6, 2016
• Docket: 12-16-00102-CR
• Status: Published

Opinion

ACCEPTED 12-16-00102-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 7/6/2016 9:43:02 PM Pam Estes CLERK

ORAL ARGUMENT NOT REQUESTED

NO. 12-16-00102-CR FILED IN 12th COURT OF APPEALS TYLER, TEXAS IN THE COURT OF APPEALS 7/6/2016 9:43:02 PM 12TH JUDICIAL DISTRICT PAM ESTES Clerk TYLER, TEXAS

EDDIE JACKSON, APPELLANT

VS.

THE STATE OF TEXAS, APPELLEE

ON APPEAL IN CAUSE NUMBER 007-0111-14 FROM THE 7th JUDICIAL DISTRICT COURT OF SMITH COUNTY, TEXAS HONORABLE KERRY RUSSELL, JUDGE PRESIDING

APPELLANT’S BRIEF

JAMES W. HUGGLER, JR. 100 E. FERGUSON, SUITE 805 TYLER, TEXAS 75702 903-593-2400 STATE BAR NUMBER 00795437

ATTORNEY FOR APPELLANT IDENTITY OF PARTIES AND COUNSEL

APPELLANT: Eddie Jackson

APPELLANT’S TRIAL COUNSEL Kurt Noell (At trial) 231 S. College Tyler, Texas 75702 903-597-9069

O.W. Loyd (At adjudication) 1507 Frost Street Gilmer, Texas 75644 903-843-3469

John Jarvis (At revocation) 326 S. Fannin Tyler, Texas 75702 903-592-6176

APPELLANT’S APPELLATE COUNSEL James Huggler 100 E. Ferguson, Suite 805 Tyler, Texas 75702 903-593-2400 903-593-3830 (fax)

APPELLEE The State of Texas

APPELLEE’S TRIAL COUNSEL Bryan Jiral Brent Ratekin Jeff Wood Smith County Criminal District Attorney’s Office 100 N. Broadway, 4th Floor ii Tyler, Texas 75702 903-590-1720 903-590-1719 (fax)

APPELLEE’S APPELLATE COUNSEL Michael West Smith County Criminal District Attorney’s Office 100 N. Broadway, 4th Floor Tyler, Texas 75702 903-590-1720 903-590-1719 (fax)

iii TABLE OF CONTENTS PAGE

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ISSUE ONE: The trial court erred in imposing attorney fees following a finding that Mr. Jackson was indigent and was appointed counsel.

ISSUE TWO, There is legally insufficient evidence to support the restitution ordered.

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ISSUE ONE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. Law on Attorney Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 B. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 C. Application to These Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 D. Remedy and Relief Requested.. . . . . . . . . . . . . . . . . . . . . . . . . 11

ISSUE TWO, RESTATED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 B. Law Applicable to Restitution Orders. . . . . . . . . . . . . . . . . . . 12 iv C. Application to These Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 D. Remedy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

v TABLE OF AUTHORITIES STATUTES TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West 2013).. . . . . . . . . . . . . 5 TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West 2013). . . . . . . . . . . . . . 5 TEX. CODE CRIM. PROC. ANN. art. 42.037(k) (West 2014).. . . . . . . . . . . 12 TEX. CODE CRIM. PROC. ANN. art. 103.001 (West 2014). . . . . . . . . . . . . . 6 TEX. GOV’T CODE ANN. §§ 102.001-.142 (West 2013). . . . . . . . . . . . . . . . 6 TEX. GOV’T CODE ANN. § 102.021 (West 2013). . . . . . . . . . . . . . . . . . . . . 6 TEX. GOV’T CODE ANN. § 103.006 (West 2015). . . . . . . . . . . . . . . . . . . . . 7 TEX. PENAL CODE ANN. §32.21 (West 2013). . . . . . . . . . . . . . . . . . . . . 2, 3

CASES Armstrong v. State, 340 S.W.3d 759 (Tex. Crim. App. 2011). . . . . . . 6, 7 Buehler v. State, 709 S.W.2d 49, 52 (Tex. App. – Houston [1st Dist.] 1986, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15 Cabla v. State, 6 S.W.3d 543, 546 (Tex. Crim. App. 1999). . . . . . . . . . 12 Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App. 1999). 11, 13, 14 Cantrell v. State, 75 S.W.3d 503, 512 (Tex. App. – Texarkana 2002, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Carter v. State, No. 12-09-00105-CR, 2011 Tex. App. LEXIS 662 (Tex. App. – Tyler 2011, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Cartwright v. State, 605 S.W.2d 287 (Tex. Crim. App. [Panel Op] 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 14 Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006). . . . . . 13 Drilling v. State, 134 S.W.3d 468 (Tex. App. – Waco 2004, no pet.).11, 13 Evans v. State, No. 12-10-00139-CR (Tex. App. – Tyler, Feb. 28, 2011).11 Homan v. Hughes, 708 S.W.2d 449, 454 (Tex. Crim. App. 1986). . . . . 15 vi Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005).. . . . . . . . 8 Idowu v. State, 73 S.W.3d 918, 922 (Tex. Crim. App. 2002). . . . . . . . . 11 Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). . . . . 7, 8 Johnson v. State, 405 S.W.3d 350, 354 (Tex. App. – Tyler 2013, no pet). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8 Martin v. State, 874 S.W.2d 674, 679-80 (Tex. Crim. App. 1994). . . . . 13 Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010). . . . . . . 5, 8 Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991). . . . 8 Owen v. State, 352 S.W.3d 542, 5148 (Tex. App. – Amarillo 2011, no pet). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7 Riggs v. State, No. 05-05-001689-CR, 2007 Tex. App. LEXIS 2589 (Tex. App. – Dallas 2007, no pt.). . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Tyler v. State, 137 S.W.3d 261, 267-68 (Tex. App. – Houston [1st Dist.] 2004, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009). . . . . . . . . . 6 Williams v. State, 332 S.W.3d 694, 699 (Tex. App. – Amarillo 2011, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

RULES TEX. R. APP. PROC. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 TEX. R. APP. PROC. 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Tex. R. App. Proc. 43.2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

vii NO. 12-16-00102-CR

EDDIE JACKSON § IN THE COURT OF APPEALS APPELLANT § § VS. § 12TH JUDICIAL DISTRICT § THE STATE OF TEXAS, § APPELLEE § TYLER, TEXAS

TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES THEREOF:

Comes now Eddie Jackson, (“Appellant”), by and through his

attorney of record, James Huggler, and pursuant to the provisions of TEX.

R. APP. PROC. 38, et seq., respectfully submits this brief on appeal.

1 STATEMENT OF THE CASE

Appellant was indicted in Cause Number 007-0111-14 and charged

with the state jail felony offense of forgery. I CR 1-21; see TEX. PENAL

CODE ANN. §32.21 (West 2013). Mr. Jackson entered a plea of guilty

pursuant to an agreement and received deferred adjudication probation.

I CR 35-36; II RR 32, 39; III RR 11-12.2

The State filed a motion to proceed to final adjudication, Mr. Jackson

entered not true pleas. I CR 47-50, 57; V RR 6-7. Following evidence and

argument of counsel, the court found each allegation to be true, and placed

Mr. Jackson on regular probation. I CR 60-61; V RR 73.

The State filed a motion to revoke, Mr. Jackson entered a plea to

several paragraphs and not true to two paragraphs. I CR 70-75, 86; VI RR

12-13. Following evidence and argument, the trial court found each

paragraph to be true, revoked the probation and sentenced Mr. Jackson

1 References to the Clerk’s Record are designated “CR” with a roman numeral preceding “CR” specifying the correct volume and an arabic numeral following “CR” specifying the correct page in the record.

2 References to the Reporter’s Record are designated “RR” with a roman numeral preceding “RR” indicating the correct volume, and an arabic numeral following “RR” specifying the correct page. 2 to eighteen months confinement, court costs and outstanding restitution.

I CR 97-98; VI RR 47, 48-49. Notice of appeal was timely filed on April 4,

2016. I CR 81. This Brief is timely filed on or before July 7, 2016.

ISSUE PRESENTED

ISSUE ONE: THE TRIAL COURT ERRED IN IMPOSING ATTORNEY FEES FOLLOWING A FINDING THAT MR. JACKSON WAS INDIGENT AND WAS APPOINTED COUNSEL.

ISSUE TWO: THERE IS LEGALLY INSUFFICIENT EVIDENCE TO SUPPORT THE RESTITUTION ORDERED.

STATEMENT OF THE FACTS

Appellant was indicted in Cause Number 007-0111-14 and charged

with the state jail felony offense of forgery. I CR 1-2; see TEX. PENAL

CODE ANN. §32.21(b) and (d) (West 2013). Mr. Jackson entered a plea of

guilty pursuant to an agreement and received three years deferred

adjudication probation. I CR 22-28; II RR 32, 39; III RR 11. The State

filed an application to proceed to final adjudication. I CR 47-50.

Following evidence, the court found each allegation to be true, found him 3 guilty of the offense and placed Mr. Jackson on regular probation. I CR

60-61; V RR 73-74. The State then filed a motion to revoke probation. I

CR 70-75. Mr. Jackson entered true pleas to most of the allegations. I CR

86; VI RR 13. Following evidence, the court found each allegation to be

true and sentenced Mr. Jackson to eighteen months confinement, the

balance of restitution and court costs. I CR 97-98; VI RR 47-48. Further

discussion of relevant facts is included below.

SUMMARY OF ARGUMENT

The first error for this Court to consider involves the improper

assessment of court costs. The trial court improperly ordered

reimbursement of attorney fees after Mr. Jackson was found to be

indigent and was appointed counsel. The attorney fees were included in

the judgment placing him on deferred adjudication and regular probation.

The remaining issues relate to the improper assessment of restitution

which was not supported by the evidence.

4 ARGUMENT

ISSUE ONE, RESTATED: THE TRIAL COURT ERRED IN IMPOSING ATTORNEY FEES FOLLOWING A FINDING THAT MR. JACKSON WAS INDIGENT AND WAS APPOINTED COUNSEL.

A. Law on Attorney’s Fees

A trial court has the authority to assess attorney’s fees against a

criminal defendant who received court-appointed counsel. TEX. CODE

CRIM. PROC. ANN. art. 26.05(g)(West 2013). Once a defendant has been

determined to be indigent, he is presumed to remain indigent for the

remainder of the proceedings unless a material change in his financial

circumstances occurs. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West

2013). Before attorney’s fees may be imposed, the trial court must make

a determination supported by some factual basis in the record that the

defendant has financial resources to enable him to offset in whole or in

part the costs of the legal services provided. Johnson v. State, 405 S.W.3d

350, 354 (Tex. App. – Tyler 2013, no pet). If the record does not show any

material change in the defendant’s financial circumstances, the evidence

will be insufficient to support the imposition of attorney’s fees. TEX. CODE

CRIM. PROC. ANN. art. 26.04(p); Mayer v. State, 309 S.W.3d 552, 553, 557

5 (Tex. Crim. App. 2010).

Court costs are pre-determined, legislatively-mandated obligations

resulting from a conviction. See, e.g., TEX. GOV'T CODE ANN. §§

102.001-.142 (West 2014) (setting forth various court costs that a

convicted person "shall" pay). A sentencing court shall impose the

statutory court costs at the time a defendant is sentenced. Armstrong v.

State, 340 S.W.3d 759 (Tex. Crim. App. 2011); TEX. GOV’T CODE ANN.

§102.021 (West 2014). Court costs are not punitive in nature and do not

have to be included in an oral pronouncement of a sentence. Weir v.

State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009).

A cost is not payable by the person charged with the cost until a

written bill is produced or is ready to be produced, containing the items

of cost, signed by the officer who charged the cost or the officer who is

entitled to receive payment of the cost. TEX. CODE CRIM. PROC. ANN. art.

103.001 (West 2013). The clerk of the trial court is required to keep a fee

record, and a statement of an item therein is prima facie evidence of the

correctness of the statement. Owen v. State, 352 S.W.3d 542, 548 (Tex.

App.—Amarillo 2011, no pet.) (citing TEX.CODE CRIM. PROC. ANN. art.

103.009(a), (c)). Until a certified bill of costs has been made part of the 6 record, a defendant has no obligation to pay court costs. Owen, 352

S.W.3d at 547 (citing Armstrong, 340 S.W.3d at 765; Williams v. State,

332 S.W.3d 694, 699 (Tex. App. – Amarillo 2011, pet. denied). In this case,

no bill of costs has been included in the record prepared by the Smith

County District Clerk leading to the conclusion that a bill of costs has not

been prepared. I CR 89-90, line 21.

If a criminal action is appealed, "an officer of the court shall certify

and sign a bill of costs stating the costs that have accrued and send the

bill of costs to the court to which the action or proceeding is transferred or

appealed." TEX. CODE CRIM. PROC. ANN. art. 103.006 (West 2015).

B. Standard of Review

The imposition of court costs upon a criminal defendant is a

“nonpunitive recoupment of the costs of judicial resources expended in

connection with the trial of the case.” Johnson v. State, 423 S.W.3d 385,

390 (Tex. Crim. App. 2014). When the imposition of court costs is

challenged on appeal, the court reviews the assessment of costs to

determine if there is a basis for the cost, not to determine if there is

7 sufficient evidence offered at trial to prove each cost. Johnson, 423 S.W.3d

at 390.

The standard for reviewing a legal sufficiency challenge is whether

any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. at

315-16, 99 S. Ct. at 2786-787; see also Mayer v. State, 309 S.W.3d 552,

557 (Tex. Crim. App. 2010)(sufficiency review of evidence to support order

of repayment of attorney fees as costs).

A challenge to a withdrawal of funds notification is reviewed for an

abuse of discretion. Williams, 332 S.W.3d at 698. A trial court abuses

its discretion when it acts “without reference to any guiding rules and

principles. Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005);

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991). The

reviewing court may modify a withdrawal order on direct appeal if the

evidence is insufficient to support the assessment of court costs. Johnson

v. State, 405 S.W.3d at 355.

8 C. Application to These Facts

Mr. Jackson has been represented at all times by appointed counsel.

The record contains two different orders appointing trial counsel. I CR 46,

77. Appellate counsel was appointed for this appeal. I CR 84. A motion

was filed with the trial court seeking a free reporter’s record on appeal.

I CR 94-96. This motion was granted by the trial court without opposition

from the State of Texas. I CR 103.

The May 1, 2014 judgment and order placing Mr. Jackson on

deferred adjudication included an assessment of $604.00 in court costs.

I CR 35-36. The judgment from December 19, 2014 placing Mr. Jackson

on probation contains an assessment of $519.00 in court costs. I CR 60-61.

The final judgment signed April 15, 2016 reflects a balance of $179.00 for

court costs. I CR 97-98.

Because there is no bill of costs contained in this record, Appellant’s

first position is that there is no evidence to support the imposition of any

court costs and the judgment should be modified and deleted. As this

Court is aware from dozens of other cases, some district courts have

routinely assessed a $300 fee for costs of an attorney appointed after a

9 finding that a defendant is indigent.

There is no evidence to contest the finding that Mr. Jackson was

found indigent. Assessment of attorney’s fees following a finding of

indigence is improper. While the final judgment probably does not include

the attorney’s fee, the prior orders do (I CR 30-32, line 21; I CR 54-56, line

21), and there were allegations that Mr. Jackson failed to make required

financial payments for court costs and attorney fees (I CR 47-50, ¶5; I CR

70-75, ¶6). Payments were made during the deferred adjudication

supervision and applied to court costs in the amount of $85.00. From the

record as submitted, an additional $340 in payments were made leaving

an outstanding balance of $179 from an initial balance of $604.00.

For the sake of argument, because there is no bill of costs submitted

as part of the record, a total of $425.00 was paid by Mr. Jackson for court

costs during his periods of supervision. That would exceed court costs

allowed by statute and include moneys paid for attorney fees following the

findings of indigence.

10 D. Remedy and Relief Requested

The fee seeking reimbursement for the appointed attorney was

improperly assessed by the court. The judgment should be modified to

eliminate this portion of the court costs.

ISSUE TWO, RESTATED: THERE IS LEGALLY INSUFFICIENT EVIDENCE TO SUPPORT THE RESTITUTION ORDERED.

A. Standard of Review

An appellate court reviews challenges to restitution orders under an

abuse of discretion standard. Cartwright v. State, 605 S.W.2d 287, 289

(Tex. Crim. App. [Panel Op.] 1980); Drilling v. State, 134 S.W.3d 468, 469

(Tex. App. – Waco 2004, no pet.). An abuse of discretion by the trial court

in setting the amount of restitution will implicate due process

considerations. Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App.

1999).

A failure to object to the restitution order does not waive an

evidentiary sufficiency complaint on appeal. Idowu v. State, 73 S.W.3d

918, 922 (Tex. Crim. App. 2002); see also Riggs v. State, No, 05-05-01689-

11 CR, 2007 Tex. App. LEXIS 2589, at *14 (Tex. App. – Dallas April 3, 2007,

no pet.) (mem. op., not designated for publication); and Evans v. State, No,

12-10-00139-CR, (Tex. App. – Tyler, Feb. 28, 2011) (per curium order, not

designated for publication) (remanding an unobjected to order of

restitution to the trial court for an appropriate restitution hearing) and

Carter v. State, No. 12-09-00105-CR, 2011 Tex. App. LEXIS 662 (Tex.

App. – Tyler Jan. 31, 2011, no pet.) (mem. op., not designated for

publication) (Court of Appeals twice ordered remand for restitution

hearing on unobjected to restitution amount at trial court level).

B. Law Applicable to Restitution Orders

The focus of the restitution order is limited to individuals alleged

and proven to be the victims of the charged offense. Cabla v. State, 6

S.W.3d 543, 546 (Tex. Crim. App. 1999). The burden of demonstrating the

amount of loss sustained is on the prosecuting attorney. TEX. CODE CRIM.

PROC. ANN. art. 42.037(k) (Vernon 2013). Restitution has been deemed to

be an aspect of punishment. Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex.

Crim. App. 2006).

12 Due process places three separate limits on the restitution a trial

court may order: (1) the amount must be just and supported by a factual

basis in the record; (2) the restitution ordered must be only for the offense

for which the defendant is criminally responsible; and (3) the restitution

must be for the victim or victims of the offense for which the offender is

charged. Campbell 5 S.W.3d at 696-97; Drilling, 134 S.W.3d at 470;

Cantrell v. State, 75 S.W.3d 503, 512 (Tex. App. – Texarkana 2002, pet.

ref’d).

Additionally, there must be evidence in the record to support an

amount of restitution. Buehler v. State, 709 S.W.2d 49, 52 (Tex. App. –

Houston [1st Dist.] 1986, pet. ref’d). In fact, the amount of restitution

must be just, and it must have a factual basis within the loss of the victim.

Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980). A court

cannot order restitution to any but the victim or victims of the offense or

reimbursement for expenses incurred by the crime victim’s compensation

fund with which the offender is charged. Martin v. State, 874 S.W.2d 674,

679-80 (Tex. Crim. App. 1994).

13 C. Application to these Facts

In this case, the only evidence to support the amount of restitution

ordered is contained in the pre-sentence investigation report. The

probation officer submitted a request for 1,565.32 to be paid to Southside

State Bank. II CR 17. However, the trial court order placing Mr. Jackson

under supervision, does not reflect who should receive the restitution

ordered, instead ordering payment to Smith County Collections. I CR 35-

36. This was also the case in the judgment placing Mr. Jackson on regular

probation, but was corrected in the final judgment in the case. I CR 60-61,

97-98. However, the restitution ordered violates due process and is an

abuse of discretion. Cartwright 605 S.W.2d at 289.

While there was evidence in the record satisfying the first prong of

the Campbell test, that the amount must be just and supported by a

factual basis in the record; and arguably there may be sufficient evidence

to support the fact that the amount was related to the offense for which

the defendant is criminally responsible; there is insufficient evidence to

determine that the restitution was payable to the victim of the offense for

which the offender is charged. Campbell 5 S.W.3d at 696-97.

14 In this case, it appears from the record that a total of three checks

were involved, number 108 for $400, number 113 for $400, and number

115 for $600. II CR 12-13. However, at best this is almost a guess

because the affidavit provided by Southside State Bank just requests

restitution in the amount of $1,565.32 and does not provide any specific

detail as to how that amount was computed. II CR 19-23. The

presentence report does contain what appears to be a bank statement and

an entry labeled “closing entry” is starred. II CR 20-23. However, there

is nothing in the record to indicate whether that amount was made by a

probation officer, the court, or Southside Bank. This entry also was dated

January 6, when the indictment alleged conduct from September 16, 2013.

I CR 1-2; II CR 19-23.

D. Remedy

Reversal would require the trial court to do a useless act,

specifically, reform a judgment on an issue this court has decided. The

law does not require courts to perform useless tasks. Homan v. Hughes,

708 S.W.2d 449, 454 (Tex. Crim. App. 1986). A trial court judgment can

be affirmed and modified. TEX. R. APP. P. 43.2(b); Buehler, 709 S.W.2d at

53. Modification is the correct remedy where the trial court imposed an 15 unauthorized sentence. Tyler v. State, 137 S.W.3d 261, 267-68 (Tex. App.

– Houston [1st Dist.] 2004, no pet.). Here, because there is no evidence to

support any payment of restitution, the amount of restitution ordered was

an abuse of discretion and the judgment should be modified to eliminate

this figure.

PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Counsel respectfully

prays that this Court modify the judgment of the trial court.

Respectfully submitted,

/s/ James Huggler James W. Huggler, Jr. State Bar Number 00795437 100 E. Ferguson, Suite 805 Tyler, Texas 75702 903-593-2400 903-593-3830 fax ATTORNEY FOR APPELLANT

16 CERTIFICATE OF SERVICE

A true and correct copy of the foregoing Brief of the Appellant has been forwarded to counsel for the State by electronic filing on this the 6th day of July, 2016.

/s/ James Huggler James W. Huggler, Jr.

Attorney for the State: Mr. Michael West Smith County Criminal District Attorney’s Office 100 N. Broadway, 4th Floor Tyler, Texas 75702

CERTIFICATE OF COMPLIANCE

I certify that this Brief complies with Tex. R. App. P. 9.4, specifically using 14 point Century font and contains 3,670 words as counted by Corel WordPerfect version x5.

/s/ James Huggler James Huggler