In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-24-00383-CR
VICTOR HERNANDEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 415th District Court Parker County, Texas Trial Court No. CR19-0819, Honorable Craig Towson, Presiding
April 28, 2025 MEMORANDUM OPINION Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
Pursuant to a plea agreement, Appellant, Victor Hernandez, was placed on
deferred adjudication community supervision for ten years for aggravated sexual assault
of a child under the age of fourteen.1 Approximately three years later, the State moved
to proceed with adjudication for multiple violations of the conditions of his community
supervision. Appellant pleaded true to the allegations without an agreement on
1 TEX. PENAL CODE ANN. § 22.021. punishment. Following a hearing on the State’s motion, the trial court found the
allegations to be true, adjudicated Appellant guilty of the original offense, sentenced him
to confinement for twenty-five years, and assessed a $1,000 fine. By four issues,
Appellant contends (1) the trial court abused its discretion in failing to fully consider
mitigation evidence during sentencing; (2) the fine should be deleted from the judgment;
(3) the time payment fee was prematurely assessed and should be deleted; and (4) the
Bill of Cost should be reformed to remove assessed costs which are not payable until his
release from confinement which requires the trial court to recall the Order to Withdraw
Funds.2 We affirm as modified.
BACKGROUND
Appellant met the victim of the original offense through his cousin. At that time, he
was sixteen and she was twelve. The victim testified Appellant sexually assaulted her
while she was at a sleepover with friends, and it was not an isolated incident.
ISSUE ONE—ABUSE OF DISCRETION IN FAILING TO CONSIDER MITIGATING EVIDENCE
Appellant does not challenge the trial court’s revocation; rather, he argues he
presented evidence showing a compelling reason for modifying or continuing his
community supervision instead of imprisonment and the trial court’s imposition of a prison
sentence was an abuse of discretion. We disagree.
2 Originally appealed to the Second Court of Appeals, this appeal was transferred to this Court by
the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001. Should a conflict exist between precedent of the Second Court of Appeals and this Court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court . TEX. R. APP. P. 41.3.
2 A trial court has wide latitude to determine the appropriate sentence in a given
case and we cannot substitute our judgment without a clear abuse of discretion. Tapia v.
State, 462 S.W.3d 29, 46 (Tex. Crim. App. 2015); Jackson v. State, 680 S.W.2d 809, 814
(Tex. Crim. App. 1984). Generally, a trial court does not abuse its discretion if the
sentence is within the proper range of punishment. Jackson, 680 S.W.2d at 814.
During the adjudication hearing, Appellant testified he is a changed man compared
to when he was placed on deferred adjudication. He testified he has a year of sobriety
from drugs and alcohol and has familial support. He has steady income to support infant
twin sons and their mother. He attributed his inability to comply with the conditions of
community supervision to his youth but testified he has since matured and has become
responsible. He also testified he was stabbed while on community supervision and was
confined to his home during recovery. He excused his numerous failures to report and
other violations due to having to work. He blamed his financial struggles for his inability
to pay fees.
During cross-examination, Appellant characterized the victim as “somewhat” a liar
regarding the frequency of their sexual encounters. He described her version of events
as half-truths. During redirect examination, he pleaded to be continued on community
supervision because he had really changed. He testified he would do anything to avoid
incarceration so he could care for his family.
The State’s witnesses, which included the victim and her father, testified about the
difficulties the victim encountered after being sexually assaulted. She experienced health
3 issues, including panic attacks and anxiety. She began acting out in school and her father
eventually withdrew her from school and she was homeschooled.
The victim recounted in great detail the initial sexual assault. She was twelve years
old and it was her first sexual encounter. She experienced bleeding and did not know
what to think of the incident. She and Appellant continued communicating via Snapchat
and had other sexual encounters. She testified that before the incident, she was an A
and B student and very involved in athletics. Afterward, she began getting into trouble
and at one point, ran away from home. She sought treatment from three counselors. She
was unable to trust males. She testified Appellant’s parents physically threatened her
with retaliation and she felt unsafe.
The trial court considered a presentence investigation report and exhibits admitted
into evidence. It heard testimony from State’s witnesses who recounted the trauma of
the sexual assault. Defense witnesses offered mitigation testimony but minimized the
offense and the trauma inflicted on the victim. There is nothing in the record to show the
trial court did not consider the mitigating evidence offered by Appellant. We conclude the
trial court did not abuse its discretion in sentencing Appellant to a twenty-five-year
sentence which falls on the lower range of punishment for first degree aggravated sexual
assault of a child. See generally Neeley v. State, Nos. 02-14-00213-CR, 02-14-00214-
CR, 02-14-00215-CR, 2015 Tex. App. LEXIS 7149, at *12 n.14 (Tex. App.—Fort Worth
July 9, 2015, no pet.) (mem. op., not designated for publication) (finding twenty-five-year
sentence for burglary on the lower end of punishment for first degree felony not excessive
despite mitigating evidence). Issue one is overruled.
4 ISSUE TWO—FAILURE TO ORALLY PRONOUNCE FINE AT ADJUDICATION HEARING
Appellant maintains the trial court failed to orally pronounce the $1,000 fine and
requests it be deleted from the judgment and the Bill of Cost. The State argues the trial
court’s pronouncement was sufficient to comply with due process. We do not reach the
merits of Appellant’s issue because he failed to preserve it for review.
When an accused is placed on deferred adjudication, no sentence is imposed.
Davis v. State, 968 S.W.2d 368, 371 (Tex. Crim. App. 1998). If the trial court later
adjudicates guilt, the order doing so sets aside the order of deferred adjudication,
including any previously assessed fine. Taylor v. State, 131 S.W.3d 497, 501–02 (Tex.
Crim. App. 2004).
In 2020, when Appellant was placed on deferred adjudication community
supervision, the Order of Deferred Adjudication included a $1,000 fine. During sentencing
at the adjudication hearing, the trial court made the following pronouncement:
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-24-00383-CR
VICTOR HERNANDEZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 415th District Court Parker County, Texas Trial Court No. CR19-0819, Honorable Craig Towson, Presiding
April 28, 2025 MEMORANDUM OPINION Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
Pursuant to a plea agreement, Appellant, Victor Hernandez, was placed on
deferred adjudication community supervision for ten years for aggravated sexual assault
of a child under the age of fourteen.1 Approximately three years later, the State moved
to proceed with adjudication for multiple violations of the conditions of his community
supervision. Appellant pleaded true to the allegations without an agreement on
1 TEX. PENAL CODE ANN. § 22.021. punishment. Following a hearing on the State’s motion, the trial court found the
allegations to be true, adjudicated Appellant guilty of the original offense, sentenced him
to confinement for twenty-five years, and assessed a $1,000 fine. By four issues,
Appellant contends (1) the trial court abused its discretion in failing to fully consider
mitigation evidence during sentencing; (2) the fine should be deleted from the judgment;
(3) the time payment fee was prematurely assessed and should be deleted; and (4) the
Bill of Cost should be reformed to remove assessed costs which are not payable until his
release from confinement which requires the trial court to recall the Order to Withdraw
Funds.2 We affirm as modified.
BACKGROUND
Appellant met the victim of the original offense through his cousin. At that time, he
was sixteen and she was twelve. The victim testified Appellant sexually assaulted her
while she was at a sleepover with friends, and it was not an isolated incident.
ISSUE ONE—ABUSE OF DISCRETION IN FAILING TO CONSIDER MITIGATING EVIDENCE
Appellant does not challenge the trial court’s revocation; rather, he argues he
presented evidence showing a compelling reason for modifying or continuing his
community supervision instead of imprisonment and the trial court’s imposition of a prison
sentence was an abuse of discretion. We disagree.
2 Originally appealed to the Second Court of Appeals, this appeal was transferred to this Court by
the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001. Should a conflict exist between precedent of the Second Court of Appeals and this Court on any relevant issue, this appeal will be decided in accordance with the precedent of the transferor court . TEX. R. APP. P. 41.3.
2 A trial court has wide latitude to determine the appropriate sentence in a given
case and we cannot substitute our judgment without a clear abuse of discretion. Tapia v.
State, 462 S.W.3d 29, 46 (Tex. Crim. App. 2015); Jackson v. State, 680 S.W.2d 809, 814
(Tex. Crim. App. 1984). Generally, a trial court does not abuse its discretion if the
sentence is within the proper range of punishment. Jackson, 680 S.W.2d at 814.
During the adjudication hearing, Appellant testified he is a changed man compared
to when he was placed on deferred adjudication. He testified he has a year of sobriety
from drugs and alcohol and has familial support. He has steady income to support infant
twin sons and their mother. He attributed his inability to comply with the conditions of
community supervision to his youth but testified he has since matured and has become
responsible. He also testified he was stabbed while on community supervision and was
confined to his home during recovery. He excused his numerous failures to report and
other violations due to having to work. He blamed his financial struggles for his inability
to pay fees.
During cross-examination, Appellant characterized the victim as “somewhat” a liar
regarding the frequency of their sexual encounters. He described her version of events
as half-truths. During redirect examination, he pleaded to be continued on community
supervision because he had really changed. He testified he would do anything to avoid
incarceration so he could care for his family.
The State’s witnesses, which included the victim and her father, testified about the
difficulties the victim encountered after being sexually assaulted. She experienced health
3 issues, including panic attacks and anxiety. She began acting out in school and her father
eventually withdrew her from school and she was homeschooled.
The victim recounted in great detail the initial sexual assault. She was twelve years
old and it was her first sexual encounter. She experienced bleeding and did not know
what to think of the incident. She and Appellant continued communicating via Snapchat
and had other sexual encounters. She testified that before the incident, she was an A
and B student and very involved in athletics. Afterward, she began getting into trouble
and at one point, ran away from home. She sought treatment from three counselors. She
was unable to trust males. She testified Appellant’s parents physically threatened her
with retaliation and she felt unsafe.
The trial court considered a presentence investigation report and exhibits admitted
into evidence. It heard testimony from State’s witnesses who recounted the trauma of
the sexual assault. Defense witnesses offered mitigation testimony but minimized the
offense and the trauma inflicted on the victim. There is nothing in the record to show the
trial court did not consider the mitigating evidence offered by Appellant. We conclude the
trial court did not abuse its discretion in sentencing Appellant to a twenty-five-year
sentence which falls on the lower range of punishment for first degree aggravated sexual
assault of a child. See generally Neeley v. State, Nos. 02-14-00213-CR, 02-14-00214-
CR, 02-14-00215-CR, 2015 Tex. App. LEXIS 7149, at *12 n.14 (Tex. App.—Fort Worth
July 9, 2015, no pet.) (mem. op., not designated for publication) (finding twenty-five-year
sentence for burglary on the lower end of punishment for first degree felony not excessive
despite mitigating evidence). Issue one is overruled.
4 ISSUE TWO—FAILURE TO ORALLY PRONOUNCE FINE AT ADJUDICATION HEARING
Appellant maintains the trial court failed to orally pronounce the $1,000 fine and
requests it be deleted from the judgment and the Bill of Cost. The State argues the trial
court’s pronouncement was sufficient to comply with due process. We do not reach the
merits of Appellant’s issue because he failed to preserve it for review.
When an accused is placed on deferred adjudication, no sentence is imposed.
Davis v. State, 968 S.W.2d 368, 371 (Tex. Crim. App. 1998). If the trial court later
adjudicates guilt, the order doing so sets aside the order of deferred adjudication,
including any previously assessed fine. Taylor v. State, 131 S.W.3d 497, 501–02 (Tex.
Crim. App. 2004).
In 2020, when Appellant was placed on deferred adjudication community
supervision, the Order of Deferred Adjudication included a $1,000 fine. During sentencing
at the adjudication hearing, the trial court made the following pronouncement:
the Court is going to find the allegations true and is now going to find you guilty of the underlying offense, sentence you to 25 years at TDC plus a carry forward of all the previously assessed but unpaid monetary obligations.
(Emphasis added).
Appellant maintains the trial court’s announcement does not satisfy the
requirement to orally pronounce a specific fine. A fine is punitive and is intended to be
part of a convicted defendant’s sentence. Armstrong v. State, 340 S.W.3d 759, 767 (Tex.
Crim. App. 2011). Thus, a fine must be contained in the trial court’s pronouncement of
5 sentence to be included in a judgment. Weir v. State, 278 S.W.3d 364, 366 (Tex. Crim.
App. 2009).
Generally, a defendant may not assert error pertaining to a sentencing issue
without objecting when sentence is pronounced or otherwise raising the error in the trial
court. Burt v. State, 396 S.W.3d 574, 577 (Tex. Crim. App. 2013); TEX. R. APP. P. 33.1(a).
The preservation requirement assumes the defendant had an opportunity to raise an
objection at the earliest time. Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App.
1999). Because imposition of a fine involves a sentencing issue, a complaint about the
fine is not exempt from procedural default.
In the underlying case, after the trial court imposed sentence and assessed any
“unpaid monetary obligations,” the trial court asked counsel for the State and defense
counsel “[a]nything else . . . ?” Defense counsel answered, “[n]othing, Judge.” No
complaint was made about the trial court’s failure to pronounce an exact dollar amount
for the fine and Appellant did not file a motion for new trial.3 The trial court offered
Appellant an opportunity to object to the manner in which the fine was pronounced but he
failed to do so. Thus, he has not preserved his complaint for appellate review. Issue two
is overruled.
ISSUE THREE—TIME PAYMENT FEE
Appellant maintains a time payment fee of $15.00 was prematurely included in the
Bill of Cost. The State agrees. See Dulin v. State, 620 S.W.3d 129, 130 (Tex. Crim. App.
3 Cf. Mayo v. State, 690 S.W.3d 103, 107 (Tex. App.—Amarillo 2024, pet. ref’d) (noting preservation
via a motion for new trial is proper when the trial court does not provide the defendant an opportunity to object after sentence is imposed). 6 2021) (holding an appeal “stops the clock for purposes of the time payment fee”); Jones
v. State, No. 02-21-00214-CR, 2023 Tex. App. LEXIS 2565, at *8–9 (Tex. App.—Fort
Worth April 20, 2023, no pet.) (mem. op., not designated for publication). Issue three is
sustained.
ISSUE FOUR—BILL OF COST AND ORDER TO WITHDRAW FUNDS
Appellant asserts assessed costs should be deleted from the Bill of Cost because
they are not payable until his release from confinement. He also urges the trial court
should recall its Order to Withdraw Funds entered pursuant to section 501.014(e) of the
Texas Government Code. We disagree.
Statutorily mandated court costs are compensatory and non-punitive. Armstrong,
340 S.W.3d at 767. They are collectible via an order to withdraw funds regardless of a
defendant’s ability to pay or his confinement. Gates v. State, No. 02-23-00004-CR, 2024
Tex. App. LEXIS 1014, at *7 (Tex. App.—Fort Worth Feb. 8, 2024, no pet.) (mem. op.,
not designated for publication) (noting a withdrawal order permits payment in specified
portions from an inmate account until his release and thereafter under article 42.15(a-1)).
The costs reflected in the Bill of Cost, except for the erroneously included time
payment fee, were properly assessed and are collectible. Likewise, the Order to
Withdraw Funds assessing $1,420.00 in costs, fees, and fines, minus the $15.00 time
payment fee was properly entered pursuant to section 501.014(e) of the Government
Code. Except for the time payment fee, we find no legal basis to delete other
assessments from the Bill of Cost or direct the trial court to recall the Order to Withdraw
7 Funds. Issue four is sustained in part as to removal of the time payment fee but otherwise
REFORMATION OF DOCUMENTS
The trial court’s Judgment Adjudicating Guilt, Bill of Cost, and Order to Withdraw
Funds are modified to delete the $15.00 time payment fee.
The trial court clerk is directed to enter an amended bill of cost and amended
withdrawal order in accordance with this opinion. A copy of the amended bill of cost and
withdrawal order shall be provided to the Texas Department of Criminal Justice and to
Appellant.
CONCLUSION
In all other respects, the trial court’s Judgment Adjudicating Guilt is affirmed.
Alex Yarbrough Justice
Do not publish.