COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-12-00402-CR
PAULA FAYE NETTER APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION 1 AND ORDER OF ABATEMENT
Procedural Background
Appellant Paula Faye Netter was indicted in August 2009 for theft by check
of property valued at more than $1,500 but less than $20,000, which was
enhanced by a prior conviction to a third-degree felony. Appellant posted an
1 See Tex. R. App. P. 47.4. appearance bond in that case and subsequently failed to appear on August 17,
2010. Her bond was forfeited and an indictment was returned on August 19,
2010, charging Appellant with bail jumping that was enhanced by an out-of-state
prior conviction to a second-degree felony.
On May 4, 2012, Appellant entered an open plea of guilty in both cases
and pled true to the enhancement paragraphs in each indictment. A presentence
investigation report was ordered in each case, and, upon completion, a
sentencing hearing commenced on July 6, 2012. The sentencing hearing was
continued on August 13, 2012, at which time the trial court found Appellant guilty
of theft as alleged, found the enhancement paragraph true, and set her sentence
at three years’ confinement in the Institutional Division of the Texas Department
of Criminal Justice. The trial court found the enhancement paragraph in the bail
jumping case to be true, deferred a finding of guilt on the charge of bail jumping,
and placed Appellant on ten years’ community supervision.
After sentencing Appellant, the trial court concluded with the following
remarks:
THE COURT: So the bottom line is this. You’re going to go to the penitentiary, and then you’re going to come back, and you’re going to be on probation. And the State’s going to make you pay back all of the checks that you’re on probation for. And if you don’t, I can send you back to the penitentiary for 20 years, and that’s what I’ll do.
You have the right to appeal my decision. You do so by giving written notice of appeal to the Second Court of Appeals here in Fort Worth within 30 days of today’s date if you wish to appeal. If
2 you cannot afford a lawyer, I will appoint a lawyer to represent you on appeal.
....
And from the State I need a restitution amount to be included in the conditions of probation in the bail jumping case. I want all of the restitution amounts from the checks as well as if there’s any restitution amounts owed in the bail jumping case to the bail bondsman. I want those included in the conditions of probation.
Anything else on behalf of the State?
[THE STATE]: Nothing further, Your Honor.
THE COURT: On behalf of the Defense?
[DEFENSE COUNSEL]: Nothing further, Your Honor.
Thereafter, the trial judge signed an order of deferred adjudication in the
bail jumping case, placing Appellant on 10 years’ community supervision and
ordering restitution of $20,803.79; a separate document entitled “conditions of
community supervision” also specifically ordering Appellant to pay restitution in
the amount of $20,803.79 at the rate of $300.00 per month. At the bottom of that
document, Appellant signed on a line next to and below a statement that reads, “I
have received my conditions of community supervision.”
Appellant timely filed a notice of appeal in each case. On November 19,
2012, Appellant filed a motion in this court to dismiss the appeal in the theft case,
which was granted on December 21, 2012.
3 Analysis
In the first of three issues on appeal, Appellant asserts that this court
should reform the order of deferred adjudication and the conditions of community
supervision to delete the restitution ordered because the trial judge did not orally
pronounce the amount of restitution when imposing sentence. While article
42.03, section 1(a) of the Texas Code of Criminal Procedure requires that the
“sentence shall be pronounced in the defendant’s presence,” Tex Code Crim.
Proc. Ann. art. 42.03, § 1(a) (West Supp. 2012), there is no sentence imposed
when an accused receives deferred adjudication. See Speth v. State, 6 S.W.3d
530, 532 (Tex. Crim. App. 1999) (“[W]hile community supervision is part of the
judgment, it is not part of the ‘sentence,’ as those terms are defined in the Code
of Criminal Procedure.”), cert. denied, 529 U.S. 1088 (2000); Davis v. State, 968
S.W.2d 368, 371 (Tex. Crim. App. 1998); Alexander v. State, 301 S.W.3d 361,
363 (Tex. App.—Fort Worth 2009, no pet.).
Appellant acknowledges that in a comparable case, Mathison v. State, our
sister court held that restitution as a condition of community supervision is not a
sentence that must be orally pronounced. No. 08-10-00098-CR, 2012 WL
248002, at *2–3 (Tex. App.—El Paso Jan. 25, 2012, no pet.) (not designated for
publication). 2 When an accused receives deferred adjudication, he is not
2 Appellant argues that Mathison is factually distinguishable from Appellant’s case and we recognize that to be true. Those factual distinctions do not affect the analysis that leads to the same result.
4 convicted and no sentence is imposed. See Beedy v. State, 194 S.W.3d 595,
599–600 (Tex. App.—Houston [1st Dist.] 2006), aff’d on other grounds, 250
S.W.3d 107 (Tex. Crim. App. 2008). Because restitution is simply a condition of
community supervision, the trial court did not err by failing to pronounce the
amount orally in Appellant’s presence. See Taylor v. State, 131 S.W.3d 497, 502
(Tex. Crim. App. 2004). We overrule Appellant’s first issue.
In the two remaining issues, Appellant argues that the amount of restitution
ordered to be paid as a term and condition of community supervision in the bail
jumping case appears to improperly include restitution for checks from the theft
case for which she was sentenced to prison; however, on the record, it is not
possible to determine that to be true. Appellant contends this court should either
delete the restitution amount in its entirety as improper or remand the case to the
trial court for a hearing to determine the proper amount of restitution for the bail
jumping offense.
First, we dispense with two of the State’s responsive arguments. It is the
State’s position that “Appellant agreed to this restitution condition. Therefore,
she has nothing to complain about.” The State expounds on its agreement
argument by stating “Appellant acquiesced to and approved of these conditions,
including the restitution order.” Since the State does not contest that the amount
was not pronounced orally in Appellant’s presence, we must assume that these
proclamations are based on Appellant’s signature on the document listing her
community-supervision terms acknowledging she “received” her conditions of
5 probation. Nowhere in the document does it state that she agrees to the
restitution amount, and the State does not cite to any other evidence of
acquiescence or approval. The record discredits the State’s argument that
Appellant agreed that $20,803.79 was a proper amount of restitution for the bail
jumping offense or that she acquiesced to pay it.
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-12-00402-CR
PAULA FAYE NETTER APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION 1 AND ORDER OF ABATEMENT
Procedural Background
Appellant Paula Faye Netter was indicted in August 2009 for theft by check
of property valued at more than $1,500 but less than $20,000, which was
enhanced by a prior conviction to a third-degree felony. Appellant posted an
1 See Tex. R. App. P. 47.4. appearance bond in that case and subsequently failed to appear on August 17,
2010. Her bond was forfeited and an indictment was returned on August 19,
2010, charging Appellant with bail jumping that was enhanced by an out-of-state
prior conviction to a second-degree felony.
On May 4, 2012, Appellant entered an open plea of guilty in both cases
and pled true to the enhancement paragraphs in each indictment. A presentence
investigation report was ordered in each case, and, upon completion, a
sentencing hearing commenced on July 6, 2012. The sentencing hearing was
continued on August 13, 2012, at which time the trial court found Appellant guilty
of theft as alleged, found the enhancement paragraph true, and set her sentence
at three years’ confinement in the Institutional Division of the Texas Department
of Criminal Justice. The trial court found the enhancement paragraph in the bail
jumping case to be true, deferred a finding of guilt on the charge of bail jumping,
and placed Appellant on ten years’ community supervision.
After sentencing Appellant, the trial court concluded with the following
remarks:
THE COURT: So the bottom line is this. You’re going to go to the penitentiary, and then you’re going to come back, and you’re going to be on probation. And the State’s going to make you pay back all of the checks that you’re on probation for. And if you don’t, I can send you back to the penitentiary for 20 years, and that’s what I’ll do.
You have the right to appeal my decision. You do so by giving written notice of appeal to the Second Court of Appeals here in Fort Worth within 30 days of today’s date if you wish to appeal. If
2 you cannot afford a lawyer, I will appoint a lawyer to represent you on appeal.
....
And from the State I need a restitution amount to be included in the conditions of probation in the bail jumping case. I want all of the restitution amounts from the checks as well as if there’s any restitution amounts owed in the bail jumping case to the bail bondsman. I want those included in the conditions of probation.
Anything else on behalf of the State?
[THE STATE]: Nothing further, Your Honor.
THE COURT: On behalf of the Defense?
[DEFENSE COUNSEL]: Nothing further, Your Honor.
Thereafter, the trial judge signed an order of deferred adjudication in the
bail jumping case, placing Appellant on 10 years’ community supervision and
ordering restitution of $20,803.79; a separate document entitled “conditions of
community supervision” also specifically ordering Appellant to pay restitution in
the amount of $20,803.79 at the rate of $300.00 per month. At the bottom of that
document, Appellant signed on a line next to and below a statement that reads, “I
have received my conditions of community supervision.”
Appellant timely filed a notice of appeal in each case. On November 19,
2012, Appellant filed a motion in this court to dismiss the appeal in the theft case,
which was granted on December 21, 2012.
3 Analysis
In the first of three issues on appeal, Appellant asserts that this court
should reform the order of deferred adjudication and the conditions of community
supervision to delete the restitution ordered because the trial judge did not orally
pronounce the amount of restitution when imposing sentence. While article
42.03, section 1(a) of the Texas Code of Criminal Procedure requires that the
“sentence shall be pronounced in the defendant’s presence,” Tex Code Crim.
Proc. Ann. art. 42.03, § 1(a) (West Supp. 2012), there is no sentence imposed
when an accused receives deferred adjudication. See Speth v. State, 6 S.W.3d
530, 532 (Tex. Crim. App. 1999) (“[W]hile community supervision is part of the
judgment, it is not part of the ‘sentence,’ as those terms are defined in the Code
of Criminal Procedure.”), cert. denied, 529 U.S. 1088 (2000); Davis v. State, 968
S.W.2d 368, 371 (Tex. Crim. App. 1998); Alexander v. State, 301 S.W.3d 361,
363 (Tex. App.—Fort Worth 2009, no pet.).
Appellant acknowledges that in a comparable case, Mathison v. State, our
sister court held that restitution as a condition of community supervision is not a
sentence that must be orally pronounced. No. 08-10-00098-CR, 2012 WL
248002, at *2–3 (Tex. App.—El Paso Jan. 25, 2012, no pet.) (not designated for
publication). 2 When an accused receives deferred adjudication, he is not
2 Appellant argues that Mathison is factually distinguishable from Appellant’s case and we recognize that to be true. Those factual distinctions do not affect the analysis that leads to the same result.
4 convicted and no sentence is imposed. See Beedy v. State, 194 S.W.3d 595,
599–600 (Tex. App.—Houston [1st Dist.] 2006), aff’d on other grounds, 250
S.W.3d 107 (Tex. Crim. App. 2008). Because restitution is simply a condition of
community supervision, the trial court did not err by failing to pronounce the
amount orally in Appellant’s presence. See Taylor v. State, 131 S.W.3d 497, 502
(Tex. Crim. App. 2004). We overrule Appellant’s first issue.
In the two remaining issues, Appellant argues that the amount of restitution
ordered to be paid as a term and condition of community supervision in the bail
jumping case appears to improperly include restitution for checks from the theft
case for which she was sentenced to prison; however, on the record, it is not
possible to determine that to be true. Appellant contends this court should either
delete the restitution amount in its entirety as improper or remand the case to the
trial court for a hearing to determine the proper amount of restitution for the bail
jumping offense.
First, we dispense with two of the State’s responsive arguments. It is the
State’s position that “Appellant agreed to this restitution condition. Therefore,
she has nothing to complain about.” The State expounds on its agreement
argument by stating “Appellant acquiesced to and approved of these conditions,
including the restitution order.” Since the State does not contest that the amount
was not pronounced orally in Appellant’s presence, we must assume that these
proclamations are based on Appellant’s signature on the document listing her
community-supervision terms acknowledging she “received” her conditions of
5 probation. Nowhere in the document does it state that she agrees to the
restitution amount, and the State does not cite to any other evidence of
acquiescence or approval. The record discredits the State’s argument that
Appellant agreed that $20,803.79 was a proper amount of restitution for the bail
jumping offense or that she acquiesced to pay it.
The State recognizes Appellant’s challenge to the authority of the trial
court to order restitution for the theft case as a term of community supervision in
the bail jumping case and responds by arguing waiver for failure to raise the
issue with the trial court. Yet, the State refuses to recognize that Appellant also
challenged the evidentiary basis of that restitution order when it states in its brief
that “[Appellant’s] problem with the restitution order is not its lack of evidentiary
sufficiency (though she gives lip service to that concept); she disputes the
authority of the trial court to even order such a thing.” In Appellant’s opening
brief, she explicitly contends that “[t]he record in this case does not support the
amount of restitution ordered.” The issue concerning the evidentiary sufficiency
for the restitution amount has been adequately raised. See Tex. R. App. P.
38.1(i), 38.9.
At sentencing, the trial court made clear its intention to require Appellant to
pay restitution for both the theft case, for which she was sentenced to prison, and
the bail jumping case, for which she was placed on community supervision. The
trial judge made his position easy to follow through his comments at sentencing:
6 [THE TRIAL JUDGE]: So the bottom line is this. You’re going to go to the penitentiary, and then you’re going to come back, and you’re going to be on probation. And the State’s going to make you pay back all of the checks that you’re on probation for.[ 3]
[THE TRIAL JUDGE]: And from the State I need a restitution amount to be included in the conditions of probation in the bail jumping case. I want all of the restitution amounts from the checks as well as if there’s any restitution amounts owed in the bail jumping case to the bail bondsman.
It is uncontested that there was never any evidence presented as to how
the $20,803.79 amount was calculated or what amounts pertaining to what case
were included in that total. In the bail jumping case, the trial court was
authorized to order restitution. See Tex. Code Crim. Proc. Ann. art. 42.12, §
11(b) (West Supp. 2012). We have no way of knowing if the amount ordered
actually included amounts for the checks, as the trial judge directed, or not. The
record does not support the amount of restitution ordered because there is no
evidence of how the trial court arrived at the amount ordered. “The proper
procedure where the amount of restitution ordered as a condition of community
supervision is not supported by the record is to abate the appeal, set aside the
amount of restitution, and remand the case for a hearing to determine a just
amount of restitution.” Barton v. State, 21 S.W.3d 287, 290 (Tex. Crim. App.
2000); Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. [Panel Op.]
1980). Because the record is incomplete, we cannot review Appellant’s
3 Appellant was not placed on probation for the theft case.
7 contention that the restitution amount includes restitution for the theft case, as
argued in her second issue. We sustain Appellant’s third issue.
Conclusion
Having sustained Appellant’s third issue, we abate this appeal, set aside
the amount of restitution, and remand the case for a hearing to determine a just
amount of restitution for the bail jumping offense. See Tex. R. App. P. 44.4. The
trial court shall conduct the appropriate hearing no later than 60 days from the
date of this memorandum opinion and order. No later than 30 days from the date
of the hearing, the trial court shall file a record of the hearing in this court. The
record shall include a supplemental reporter’s record and supplemental clerk’s
record. Upon our receipt of the supplemental record, the appeal of this cause
shall be automatically reinstated without further order.
LEE GABRIEL JUSTICE
PANEL: GARDNER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: April 25, 2013