ACCEPTED 13-13-00015-CR THIRTEENTH COURT OF APPEALS FILED CORPUS CHRISTI, TEXAS 2/25/2015 1:52:57 PM IN THE 13TH COURT OF APPEALS DORIAN RAMIREZ CORPUS CHRISTI CLERK 2/25/15 CAUSE NO: 13-13-00150-CR DORIAN E. RAMIREZ, CLERK BY JParedes IN THE THIRTEENTH COURT OF APPEALS RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI-EDINBURG CORPUS CHRISTI/EDINBURG, TEXAS 2/25/2015 1:52:57 PM MELISSA ANN MERCER DORIAN E. RAMIREZ Clerk Appellant
v.
THE STATE OF TEXAS Appellee
Appeal from the 156th District Court, Bee County, Texas Trial Court Cause No. B-09-2167-CR-B
APPELLANT’S SUPPLEMENTAL BRIEF ON REMAND
Julie Balovich SBN 24036182 Bee County Regional Public Defender 331A North Washington Street Beeville, Texas 78102 Tel: (361) 358-1925 Fax: (361) 358-5158 jbalovich@trla.org
ATTORNEYS FOR APPELLANT MELISSA ANN MERCER TABLE OF CONTENTS
INDEX OF AUTHORITIES………………………………………………………iii
ISSUES FOR DECISION……………..…………………………………………..2
I. Whether the trial court had authority to impose costs of county-jail incarceration as part of Appellant’s sentence upon revocation of her term of community supervision.
II. Whether Appellant’s complaints on appeal are procedurally defaulted for failure to object at the trial court.
ARGUMENT……………………………………………………………………….3
I. No statute authorizes the trial court to order Appellant to pay reimbursement of her county jail confinement upon revocation of her community supervision………………………………………………………………………….3
II. Appellant was not required to preserve error at the trial court………...……5
PRAYER FOR RELIEF……………………………………………………………7
CERTIFICATE OF COMPLIANCE……………………………………………….8
CERTIFICATE OF SERVICE……………………………………………………..9
ii INDEX OF AUTHORITIES
Cases
Burt v. State, 396 S.W.3d 574 (Tex. Crim. App. 2013)…………………………..5
Landers v. State, 402 S.W.3d 252 (Tex. Crim. App.2013)…………………….…..5
Martinez v. State, 91 S.W.3d 331 (Tex. Crim. App. 2002)…………………..........5
Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010)….………………......5 , 7
Mercer v. State, No. PD-1711-13, ____ S.W.3d ____, 2015 WL 180396 (Tex. Crim. App. 2015)…………………………1, 2, 3, 4
Mercer v. State, No. 13-13-00150-CR, 2013 WL 6055271 (Tex. App.—Corpus Christi-Edinburg, Nov. 14, 2013) (mem. op.)….....1, 3
Statutes
TEX. CODE CRIM. PROC. art. 26.04(p)……………………….…………………….4
TEX. CODE CRIM. PROC. art. 26.05(g)……………………….…………………….7
TEX. CODE CRIM. PROC. art. 42.037……………………………………………….3
TEX. CODE CRIM. PROC. art. 42.038………………………………………….…3, 4
iii CAUSE NO: 13-13-0015-CR
IN THE THIRTEENTH COURT OF APPEALS EDINBURG – CORPUS CHRISTI
MELISSA ANN MERCER Appellant
TO THE HONORABLE COURT:
This cause is again before this Court on remand from the Court of Criminal
Appeals. This Court originally ruled that the trial court lacked authority to impose
costs of county-jail incarceration as a term of Appellant’s community supervision
and ordered her judgment reformed to remove that amount. Mercer v. State, No.
13-13-00150-CR, 2013 WL 6055271, at *1 n.2 (Tex. App.—Corpus Christi-
Edinburg, Nov. 14, 2013) (mem. op.) The Court of Criminal Appeals vacated this
ruling after holding that authority to impose county-jail incarceration costs as a
term of community supervision is not at issue in this case. Mercer v. State, No.
PD-1711-13, ____ S.W.3d ____, 2015 WL 180396, at *4 (Tex. Crim. App. 2015).
Instead the properly framed issue is whether the trial court had authority to order
1 Appellant to reimburse county-jail incarceration costs as part of her sentence when
the trial court revoked Appellant’s community supervision. Id. at *4. The Court of
Criminal Appeals directed this Court to address this issue, preservation, and any
other properly presented issues that must be addressed to resolve Appellant’s
appeal. Id. at *4-5.
This brief supplements Appellant’s argument to address the issues as framed
by the Court of Criminal Appeals, and concludes that the result should be the
same: the trial court erred in ordering Appellant to pay $160 in county-jail
incarceration costs.
ISSUES FOR DECISION
I. Whether the trial court had authority to impose costs of county-jail
incarceration as part of Appellant’s sentence upon revocation of her term of
community supervision.
II. Whether Appellant’s complaints on appeal are procedurally defaulted
for failure to object at the trial court.
2 ARGUMENT
I. No statute authorizes the trial court to order Appellant to pay reimbursement of her county jail confinement upon revocation of her community supervision.
The judgment orders Appellant to pay the balance of her reimbursement1 for
the expense of periods of confinement in county jail which had been ordered as a
condition of community supervision. CR 202. The trial court had no authority to
make this order as part of her judgment on revocation.
The only authority for a trial court to order a defendant to reimburse a
county for costs of confinement in county jail is found at Code of Criminal
Procedure article 42.038 “Reimbursement for Confinement Expense.” Section (a)
of that statute authorizes a trial court to order a misdemeanor offender who is
sentenced to county jail to reimburse the county for the costs of her confinement at
the time she is convicted. TEX. CODE CRIM. PROC. art. 42.038(a). Appellant’s case
does not meet the criteria of this statute: she is not a misdemeanor offender and
the order for her to reimburse the county for confinement was not imposed upon
conviction, but rather upon revocation. Section (b) authorizes a trial court to order
a misdemeanor offender who is required to serve time in county jail as a condition 1 The trial court used the term restitution, but both this Court and the Court of Criminal Appeals have recognized that the disputed amount was assessed for reimbursement of confinement expenses, not restitution to the victim. 2013 WL 6055271, at *1 n.2; 2015 WL 180396, at *1, n.1; see TEX. CODE CRIM. PROC. art. 42.037 (restitution is paid to a victim to compensate for damages, loss, or injuries). There was no restitution in this case to the victim of Appellant’s offense; the items Appellant paid for with another person’s debit card were returned and restitution was not part of the original judgment. CR 37-39, 66.
3 of community supervision to reimburse the county for the costs of her confinement
also as a condition of community supervision. Id. art. 42.038(b). Appellant’s case
also does not meet the criteria of this statute: again, she is not a misdemeanor
offender, and the order for her to pay reimbursement at issue in this appeal was
imposed at the execution of her sentence. Accordingly, this section did not
authorize the trial court to order Appellant to pay reimbursement costs as part of
her judgment.
Even if either of these sections applied, they both come with an important
due process safeguard: a court may not require reimbursement if the defendant is
indigent. Id. art. 42.038(c). For non-indigent defendants, the court must consider
the defendant’s financial circumstances before ordering reimbursement. Id. art.
42.038(d).
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ACCEPTED 13-13-00015-CR THIRTEENTH COURT OF APPEALS FILED CORPUS CHRISTI, TEXAS 2/25/2015 1:52:57 PM IN THE 13TH COURT OF APPEALS DORIAN RAMIREZ CORPUS CHRISTI CLERK 2/25/15 CAUSE NO: 13-13-00150-CR DORIAN E. RAMIREZ, CLERK BY JParedes IN THE THIRTEENTH COURT OF APPEALS RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI-EDINBURG CORPUS CHRISTI/EDINBURG, TEXAS 2/25/2015 1:52:57 PM MELISSA ANN MERCER DORIAN E. RAMIREZ Clerk Appellant
v.
THE STATE OF TEXAS Appellee
Appeal from the 156th District Court, Bee County, Texas Trial Court Cause No. B-09-2167-CR-B
APPELLANT’S SUPPLEMENTAL BRIEF ON REMAND
Julie Balovich SBN 24036182 Bee County Regional Public Defender 331A North Washington Street Beeville, Texas 78102 Tel: (361) 358-1925 Fax: (361) 358-5158 jbalovich@trla.org
ATTORNEYS FOR APPELLANT MELISSA ANN MERCER TABLE OF CONTENTS
INDEX OF AUTHORITIES………………………………………………………iii
ISSUES FOR DECISION……………..…………………………………………..2
I. Whether the trial court had authority to impose costs of county-jail incarceration as part of Appellant’s sentence upon revocation of her term of community supervision.
II. Whether Appellant’s complaints on appeal are procedurally defaulted for failure to object at the trial court.
ARGUMENT……………………………………………………………………….3
I. No statute authorizes the trial court to order Appellant to pay reimbursement of her county jail confinement upon revocation of her community supervision………………………………………………………………………….3
II. Appellant was not required to preserve error at the trial court………...……5
PRAYER FOR RELIEF……………………………………………………………7
CERTIFICATE OF COMPLIANCE……………………………………………….8
CERTIFICATE OF SERVICE……………………………………………………..9
ii INDEX OF AUTHORITIES
Cases
Burt v. State, 396 S.W.3d 574 (Tex. Crim. App. 2013)…………………………..5
Landers v. State, 402 S.W.3d 252 (Tex. Crim. App.2013)…………………….…..5
Martinez v. State, 91 S.W.3d 331 (Tex. Crim. App. 2002)…………………..........5
Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010)….………………......5 , 7
Mercer v. State, No. PD-1711-13, ____ S.W.3d ____, 2015 WL 180396 (Tex. Crim. App. 2015)…………………………1, 2, 3, 4
Mercer v. State, No. 13-13-00150-CR, 2013 WL 6055271 (Tex. App.—Corpus Christi-Edinburg, Nov. 14, 2013) (mem. op.)….....1, 3
Statutes
TEX. CODE CRIM. PROC. art. 26.04(p)……………………….…………………….4
TEX. CODE CRIM. PROC. art. 26.05(g)……………………….…………………….7
TEX. CODE CRIM. PROC. art. 42.037……………………………………………….3
TEX. CODE CRIM. PROC. art. 42.038………………………………………….…3, 4
iii CAUSE NO: 13-13-0015-CR
IN THE THIRTEENTH COURT OF APPEALS EDINBURG – CORPUS CHRISTI
MELISSA ANN MERCER Appellant
TO THE HONORABLE COURT:
This cause is again before this Court on remand from the Court of Criminal
Appeals. This Court originally ruled that the trial court lacked authority to impose
costs of county-jail incarceration as a term of Appellant’s community supervision
and ordered her judgment reformed to remove that amount. Mercer v. State, No.
13-13-00150-CR, 2013 WL 6055271, at *1 n.2 (Tex. App.—Corpus Christi-
Edinburg, Nov. 14, 2013) (mem. op.) The Court of Criminal Appeals vacated this
ruling after holding that authority to impose county-jail incarceration costs as a
term of community supervision is not at issue in this case. Mercer v. State, No.
PD-1711-13, ____ S.W.3d ____, 2015 WL 180396, at *4 (Tex. Crim. App. 2015).
Instead the properly framed issue is whether the trial court had authority to order
1 Appellant to reimburse county-jail incarceration costs as part of her sentence when
the trial court revoked Appellant’s community supervision. Id. at *4. The Court of
Criminal Appeals directed this Court to address this issue, preservation, and any
other properly presented issues that must be addressed to resolve Appellant’s
appeal. Id. at *4-5.
This brief supplements Appellant’s argument to address the issues as framed
by the Court of Criminal Appeals, and concludes that the result should be the
same: the trial court erred in ordering Appellant to pay $160 in county-jail
incarceration costs.
ISSUES FOR DECISION
I. Whether the trial court had authority to impose costs of county-jail
incarceration as part of Appellant’s sentence upon revocation of her term of
community supervision.
II. Whether Appellant’s complaints on appeal are procedurally defaulted
for failure to object at the trial court.
2 ARGUMENT
I. No statute authorizes the trial court to order Appellant to pay reimbursement of her county jail confinement upon revocation of her community supervision.
The judgment orders Appellant to pay the balance of her reimbursement1 for
the expense of periods of confinement in county jail which had been ordered as a
condition of community supervision. CR 202. The trial court had no authority to
make this order as part of her judgment on revocation.
The only authority for a trial court to order a defendant to reimburse a
county for costs of confinement in county jail is found at Code of Criminal
Procedure article 42.038 “Reimbursement for Confinement Expense.” Section (a)
of that statute authorizes a trial court to order a misdemeanor offender who is
sentenced to county jail to reimburse the county for the costs of her confinement at
the time she is convicted. TEX. CODE CRIM. PROC. art. 42.038(a). Appellant’s case
does not meet the criteria of this statute: she is not a misdemeanor offender and
the order for her to reimburse the county for confinement was not imposed upon
conviction, but rather upon revocation. Section (b) authorizes a trial court to order
a misdemeanor offender who is required to serve time in county jail as a condition 1 The trial court used the term restitution, but both this Court and the Court of Criminal Appeals have recognized that the disputed amount was assessed for reimbursement of confinement expenses, not restitution to the victim. 2013 WL 6055271, at *1 n.2; 2015 WL 180396, at *1, n.1; see TEX. CODE CRIM. PROC. art. 42.037 (restitution is paid to a victim to compensate for damages, loss, or injuries). There was no restitution in this case to the victim of Appellant’s offense; the items Appellant paid for with another person’s debit card were returned and restitution was not part of the original judgment. CR 37-39, 66.
3 of community supervision to reimburse the county for the costs of her confinement
also as a condition of community supervision. Id. art. 42.038(b). Appellant’s case
also does not meet the criteria of this statute: again, she is not a misdemeanor
offender, and the order for her to pay reimbursement at issue in this appeal was
imposed at the execution of her sentence. Accordingly, this section did not
authorize the trial court to order Appellant to pay reimbursement costs as part of
her judgment.
Even if either of these sections applied, they both come with an important
due process safeguard: a court may not require reimbursement if the defendant is
indigent. Id. art. 42.038(c). For non-indigent defendants, the court must consider
the defendant’s financial circumstances before ordering reimbursement. Id. art.
42.038(d). Appellant was indigent as shown by her sworn affidavit, and the record
reflects no inquiry by the trial court into her ability to pay.2 CR 8-9, RR passim.
The law presumes she remains indigent for the remainder of the proceeding unless
a material change in her financial circumstances occurs. TEX. CODE CRIM. PROC.
art. 26.04(p). There was no evidence that Appellant’s financial circumstances had
changed. Indeed, her sentence was being revoked and she was being ordered to
serve a two year jail sentence. CR 202. Accordingly, the judgment ordering her to
2 Although the Court of Criminal Appeals stated that Appellant made this argument “for the first time” before it, see 2015 WL 190396 at *2, in fact Appellant did address this issue in her initial brief before this Court. Appellant’s Brief at 9 (Mercer I) (“First, at no point were any of the restitution amounts ordered after the trial court had considered Appellant’s ability to pay.”)
4 reimburse the county for confinement expenses was unsupported by legally
sufficient evidence. See Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App.
2011) (affirming court of appeals that held trial court erred in ordering
reimbursement of attorneys fees absent evidence of appellant’s ability to pay).
There being no authority for the trial court’s judgment for reimbursement, it
should be reformed to delete the provision for reimbursement in the amount of
$160.
II. Appellant was not required to preserve error at the trial court.
“The requirement that an objection be raised in the trial court assumes that
the appellant had the opportunity to raise it there.” Burt v. State, 396 S.W.3d 574,
577 (Tex. Crim. App. 2013). The rationale behind requiring an appellant to make
an objection is to allow the trial court the opportunity to correct errors. Landers v.
State, 402 S.W.3d 252, 254 n.5 (Tex. Crim. App. 2013) (citing Martinez v. State,
91 S.W.3d 331, 336 (Tex. Crim. App. 2002)). There are two reasons why
Appellant could not and did not have to object in order to preserve the argument
that the trial court had no authority to order her to pay confinement expense as part
of her judgment.
First, the trial court orally pronounced a sentence that did not give clear
notice he would be ordering Appellant to pay for reimbursement of Appellant’s
5 confinement expenses; in fact, he expressly questioned that he had the ability to do
so:
Her community supervision will be revoked, the original sentence imposed, two years in a state jail with the balance of the unpaid fine, fees, costs and restitution, if it can be collected, on a state jail case, which I don’t think it really can be.
RR 12 (emphasis added). Until the reimbursement amount appeared in the written
judgment, Appellant had no notice that the judge had ordered her to pay county jail
confinement expenses as part of the judgment. Although the written judgment was
signed and filed on the same day as the hearing, the record does not reflect the date
Appellant received a copy of it before filing her appeal. CR 202. See Burt, 396
S.W.3d at 578 n.5 (acknowledging the unlikelihood that an appellant would have
found out about a restitution order after written judgment issued where trial
counsel had been dismissed, appellant had begun serving her sentence, and there is
no requirement inmates be served with their judgment). Accordingly, Appellant is
entitled to challenge the authority of the trial court to order this expense for the
first time on appeal.
Second, as discussed above, a reimbursement order, if authorized, may not
be assessed in cases where a judge has determined a defendant is indigent and may
only be ordered after a trial court considers the defendant’s financial
circumstances. TEX. CODE CRIM. PROC. art. 42.038(c), (d). The statute is
analytically similar to the statute which authorizes a trial court to order a defendant
6 to offset or pay the costs of his court-appointed attorney after it determines the
defendant has the ability to pay. TEX. CODE CRIM. PROC. art. 26.05(g). An
objection at trial is not necessary to preserve a sufficiency complaint under these
statutes. See Mayer, 309 S.W.3d at 556 (Tex. Crim. App. 2011) (holding that an
objection at trial is not required to preserve a defendant’s complaint of insufficient
financial resources and evidence of ability to pay attorneys fees as court costs).
PRAYER FOR RELIEF
WHEREFORE, Appellant prays that this Court reform the judgment to
delete the requirement that Appellant pay $160 in costs.
Respectfully submitted.
/s/ Julie M. Balovich Julie Balovich SBN 24036182 331A N. Washington Beeville, Texas 78102 Tel: (361) 358-1925 Fax: (361) 358-5158 jbalovich@trla.org
7 CERTIFICATE OF COMPLIANCE
The undersigned certifies that, according to this computer word processor’s
word count program, this document contains 1,580 words, exclusive of the items
excepted by Tex. R. App. P. 9.4(i)(1).
/s/ Julie M. Balovich Julie Balovich
8 CERTIFICATE OF SERVICE
The undersigned attorney hereby certifies that a true and correct copy of the
foregoing has been delivered by electronic filing manager if registered but
otherwise by email or regular mail to:
State Prosecuting Attorney, P.O. Box 13046, Austin, Texas 78711
Hon. District Attorney Jose L. Aliseda, Jr., 701 E. Houston, Beeville, Texas 78102
Hon. Edward F. Shaughnessy III, 206 E. Locus Street, San Antonio, Texas 78212
on this 25th day of February, 2015.
/s/ Julie Balovich Julie Balovich