COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-11-00035-CR
TORRIUN BOYD APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1
The trial court placed Appellant Torriun Boyd on two years’ deferred
adjudication community supervision upon his plea of guilty to theft of services
between $1,500 and $20,000. The State subsequently petitioned the trial court
to adjudicate Boyd guilty of the underlying offense due to his alleged violation of
several terms and conditions of his community supervision. After a hearing, the
trial court found each of the State’s allegations true; found Boyd guilty of theft of 1 See Tex. R. App. P. 47.4. services between $1,500 and $20,000; sentenced him to fifteen months’
confinement in state jail; and ordered him to pay restitution in the amount of
$1,930; a fine in the amount of $200; court costs in the amount of $305; and
reparations in the amount of $1,429. In two issues, Boyd challenges the
restitution and reparations orders and the amount of costs. We will modify the
judgment and affirm the judgment as modified.
In his first issue, Boyd argues that we should reform the judgment to delete
the ordered restitution because the trial court did not include the order to pay
restitution in its oral pronouncement of his sentence. This court has previously
examined the authorities relevant to this issue and held that restitution is
punishment and part of the defendant’s sentence and, therefore, must be
included in the trial court’s oral pronouncement of sentence to be properly
included in the written judgment. See Brown v. State, No. 02-08-00063-CR,
2009 WL 1905231, at *1–2 (Tex. App.—Fort Worth July 2, 2009, no pet.) (mem.
op., not designated for publication); see also Alexander v. State, 301 S.W.3d
361, 364 (Tex. App.—Fort Worth 2009, no pet.). The record reflects that the trial
court did not order Boyd to pay restitution in the amount of $1,930 during its oral
pronouncement of his sentence. Accordingly, we will modify the judgment to
delete the restitution order.2 We sustain Boyd’s first issue.
2 The State concedes this issue.
2 In his second issue, Boyd argues that the trial court abused its discretion
by ordering reparations in the amount of $1,429 because the record is wholly
devoid of any evidence supporting the amount of reparations. 3 Boyd also
challenges a $25 increase in court costs that he is ordered to pay.
In his brief, Boyd conceded that “[i]f the record contained some kind of
documentation supporting the reparations, [he] would have no argument.
Documentation from CSCD as to the amount of owing at the time of adjudication
would have been sufficient.” The State consequently supplemented the clerk’s
record with a document bearing the heading “Community Supervision and
Corrections Department of Tarrant County” and referring to itself as a
“Revocation Restitution/Reparation Balance Sheet,” which purports to identify
that the $1,429 reparations figure consists of (1) probation fees in the amount of
$1,140; (2) the original fine of $200; and (3) $89 “Due to CSCD.”
Notwithstanding that Boyd conceded that such documentation would render his
argument unpersuasive, he filed a motion to strike the supplemental record,
arguing that the supplementation is improper because the community supervision
3 The State argues that Boyd failed to preserve much of this issue for appellate review due to his failure to challenge the ordered reparations when he was originally placed on deferred adjudication community supervision. See Reyes v. State, 324 S.W.3d 865, 867 (Tex. App.—Amarillo 2010, no pet.) (holding that appellant waived objection to condition of community supervision by not raising it when the condition was imposed). We disagree. Boyd does not challenge the imposition of the reparations; rather, he challenges the amount of the reparations, questioning how the trial court arrived at the $1,429 figure.
3 document is not file-marked, was not entered on the docket sheet, is unsigned,
and was not served.4 We will deny Boyd’s motion in part and grant it in part.
The original conditions of Boyd’s community supervision, which are
included in the record, required him to pay a “Supervision Fee” in the amount of
$60 each month during the period of supervision. Boyd was on community
supervision from June 2009 to January 2011—nineteen months. Thus, without
considering the challenged document contained in the supplemental record, we
are able to determine from the record that a payment of $60 per month for
nineteen months accounts for $1,140 of the ordered $1,429 of reparations.
Accordingly, we deny Boyd’s motion to the extent that he complains about the
$1,140 identified in the community supervision document as reparations.
As for the $200 fine, the State concedes that it should be deleted from the
judgment because the trial court did not order Boyd to pay the fine when it
adjudicated his guilt and orally pronounced his sentence. See Taylor v. State,
131 S.W.3d 497, 502 (Tex. Crim. App. 2004) (reasoning that appellant was not
sentenced until his guilt was adjudicated and that trial court was required to orally
pronounce fine during sentencing). We agree and will modify the judgment to
4 The State filed a “Motion Objecting to Appellant’s Motion to Strike the Supplemental Record” in response to Boyd’s motion to strike the supplemental record. The State’s motion does not request any relief, other than to request that we deny Boyd’s motion. We therefore construe the State’s motion as merely a response to Boyd’s motion.
4 delete the $200 fine. We deny Boyd’s motion to the extent that he complains
about the $200 identified in the community supervision document as reparations.
The remaining figure contained in the community supervision document
that Boyd challenges is the $89 “Due to CSCD.” Unlike with the probation fees,
we are unable to determine from the record what this figure represents or
whether it was included as part of the original conditions of Boyd’s community
supervision. More importantly, this portion of the challenged document would
seem to create a new appellate record, as opposed to merely supplementing the
record with something that was omitted from the appellate record. This, the court
of criminal appeals has explained, is inappropriate. See Solomon v. State, 49
S.W.3d 356, 365 (Tex. Crim. App. 2001) (“While Rule 34.5(c)(1) permits
supplementation of an appellate record with material that has been omitted from
the appellate record, the rule cannot be used to create a new appellate record.”);
see also Tex. R. App. P. 34.5(c)(1). We therefore grant Boyd’s motion to strike
to the extent that he complains about the $89 identified in the challenged
document as reparations.
Finally, the trial court ordered Boyd to pay court costs in the amount of
$280 when it placed him on deferred adjudication community supervision, but the
amount increased by $25 to $305 when the trial court adjudicated his guilt.
Nothing in the record supports this increased amount. Therefore, we will modify
the judgment to reflect court costs of $280.
5 In light of the foregoing, the record supports reparations in the amount of
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-11-00035-CR
TORRIUN BOYD APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1
The trial court placed Appellant Torriun Boyd on two years’ deferred
adjudication community supervision upon his plea of guilty to theft of services
between $1,500 and $20,000. The State subsequently petitioned the trial court
to adjudicate Boyd guilty of the underlying offense due to his alleged violation of
several terms and conditions of his community supervision. After a hearing, the
trial court found each of the State’s allegations true; found Boyd guilty of theft of 1 See Tex. R. App. P. 47.4. services between $1,500 and $20,000; sentenced him to fifteen months’
confinement in state jail; and ordered him to pay restitution in the amount of
$1,930; a fine in the amount of $200; court costs in the amount of $305; and
reparations in the amount of $1,429. In two issues, Boyd challenges the
restitution and reparations orders and the amount of costs. We will modify the
judgment and affirm the judgment as modified.
In his first issue, Boyd argues that we should reform the judgment to delete
the ordered restitution because the trial court did not include the order to pay
restitution in its oral pronouncement of his sentence. This court has previously
examined the authorities relevant to this issue and held that restitution is
punishment and part of the defendant’s sentence and, therefore, must be
included in the trial court’s oral pronouncement of sentence to be properly
included in the written judgment. See Brown v. State, No. 02-08-00063-CR,
2009 WL 1905231, at *1–2 (Tex. App.—Fort Worth July 2, 2009, no pet.) (mem.
op., not designated for publication); see also Alexander v. State, 301 S.W.3d
361, 364 (Tex. App.—Fort Worth 2009, no pet.). The record reflects that the trial
court did not order Boyd to pay restitution in the amount of $1,930 during its oral
pronouncement of his sentence. Accordingly, we will modify the judgment to
delete the restitution order.2 We sustain Boyd’s first issue.
2 The State concedes this issue.
2 In his second issue, Boyd argues that the trial court abused its discretion
by ordering reparations in the amount of $1,429 because the record is wholly
devoid of any evidence supporting the amount of reparations. 3 Boyd also
challenges a $25 increase in court costs that he is ordered to pay.
In his brief, Boyd conceded that “[i]f the record contained some kind of
documentation supporting the reparations, [he] would have no argument.
Documentation from CSCD as to the amount of owing at the time of adjudication
would have been sufficient.” The State consequently supplemented the clerk’s
record with a document bearing the heading “Community Supervision and
Corrections Department of Tarrant County” and referring to itself as a
“Revocation Restitution/Reparation Balance Sheet,” which purports to identify
that the $1,429 reparations figure consists of (1) probation fees in the amount of
$1,140; (2) the original fine of $200; and (3) $89 “Due to CSCD.”
Notwithstanding that Boyd conceded that such documentation would render his
argument unpersuasive, he filed a motion to strike the supplemental record,
arguing that the supplementation is improper because the community supervision
3 The State argues that Boyd failed to preserve much of this issue for appellate review due to his failure to challenge the ordered reparations when he was originally placed on deferred adjudication community supervision. See Reyes v. State, 324 S.W.3d 865, 867 (Tex. App.—Amarillo 2010, no pet.) (holding that appellant waived objection to condition of community supervision by not raising it when the condition was imposed). We disagree. Boyd does not challenge the imposition of the reparations; rather, he challenges the amount of the reparations, questioning how the trial court arrived at the $1,429 figure.
3 document is not file-marked, was not entered on the docket sheet, is unsigned,
and was not served.4 We will deny Boyd’s motion in part and grant it in part.
The original conditions of Boyd’s community supervision, which are
included in the record, required him to pay a “Supervision Fee” in the amount of
$60 each month during the period of supervision. Boyd was on community
supervision from June 2009 to January 2011—nineteen months. Thus, without
considering the challenged document contained in the supplemental record, we
are able to determine from the record that a payment of $60 per month for
nineteen months accounts for $1,140 of the ordered $1,429 of reparations.
Accordingly, we deny Boyd’s motion to the extent that he complains about the
$1,140 identified in the community supervision document as reparations.
As for the $200 fine, the State concedes that it should be deleted from the
judgment because the trial court did not order Boyd to pay the fine when it
adjudicated his guilt and orally pronounced his sentence. See Taylor v. State,
131 S.W.3d 497, 502 (Tex. Crim. App. 2004) (reasoning that appellant was not
sentenced until his guilt was adjudicated and that trial court was required to orally
pronounce fine during sentencing). We agree and will modify the judgment to
4 The State filed a “Motion Objecting to Appellant’s Motion to Strike the Supplemental Record” in response to Boyd’s motion to strike the supplemental record. The State’s motion does not request any relief, other than to request that we deny Boyd’s motion. We therefore construe the State’s motion as merely a response to Boyd’s motion.
4 delete the $200 fine. We deny Boyd’s motion to the extent that he complains
about the $200 identified in the community supervision document as reparations.
The remaining figure contained in the community supervision document
that Boyd challenges is the $89 “Due to CSCD.” Unlike with the probation fees,
we are unable to determine from the record what this figure represents or
whether it was included as part of the original conditions of Boyd’s community
supervision. More importantly, this portion of the challenged document would
seem to create a new appellate record, as opposed to merely supplementing the
record with something that was omitted from the appellate record. This, the court
of criminal appeals has explained, is inappropriate. See Solomon v. State, 49
S.W.3d 356, 365 (Tex. Crim. App. 2001) (“While Rule 34.5(c)(1) permits
supplementation of an appellate record with material that has been omitted from
the appellate record, the rule cannot be used to create a new appellate record.”);
see also Tex. R. App. P. 34.5(c)(1). We therefore grant Boyd’s motion to strike
to the extent that he complains about the $89 identified in the challenged
document as reparations.
Finally, the trial court ordered Boyd to pay court costs in the amount of
$280 when it placed him on deferred adjudication community supervision, but the
amount increased by $25 to $305 when the trial court adjudicated his guilt.
Nothing in the record supports this increased amount. Therefore, we will modify
the judgment to reflect court costs of $280.
5 In light of the foregoing, the record supports reparations in the amount of
$1,140 and court costs in the amount of $280. We overrule in part and sustain in
part Boyd’s second issue.
We modify (1) the part of the judgment adjudicating Boyd’s guilt to delete
the requirement that he pay restitution in the amount of $1,930; (2) the part of the
judgment ordering Boyd to pay reparations in the amount of $1,429 to reflect that
Boyd must pay reparations in the amount of $1,140; and (3) the part of the
judgment ordering Boyd to pay court costs in the amount of $305 to reflect that
Boyd must pay court costs in the amount of $280. As modified, we affirm the trial
court’s judgment. See Tex. R. App. P. 43.2(b).
BILL MEIER JUSTICE
PANEL: GARDNER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: April 19, 2012