                                                                           ACCEPTED
                                                                      03-14-00616-CR
                                                                             4133839
                                                            THIRD COURT OF APPEALS
                                                                       AUSTIN, TEXAS
                                                                 2/12/2015 4:26:59 PM
                                                                    JEFFREY D. KYLE
                                                                               CLERK
                    No. 03-14-00616-CR

                 IN THE COURT OF APPEALS             FILED IN
                                              3rd COURT OF APPEALS
            FOR THE THIRD JUDICIAL DISTRICT OF AUSTIN, TEXAS
                  TEXAS AT AUSTIN, TEXAS      2/12/2015 4:26:59 PM
                                                 JEFFREY D. KYLE
                                                      Clerk
                          ********

       ALEXIS MARIE IRELAND
                           VS.

         THE STATE OF TEXAS
                          ********

         ON APPEAL FROM THE 27th DISTRICT COURT
                 OF BELL COUNTY, TEXAS
                     Cause No. 69086

                          ******

                STATE’S BRIEF
                           ******

                         HENRY GARZA
                         DISTRICT ATTORNEY

                         BOB D. ODOM
                         ASSISTANT DISTRICT ATTORNEY
                         P.O. Box 540
                         Belton, Tx 76513
                         (254) 933-5215
                         FAX (254) 933-5704
                         DistrictAttorney@co.bell.tx.us
                         SBA No. 15200000

Oral Argument Not Requested


                             1
                    TABLE OF CONTENTS
ITEM                                                          PAGE

Index of Authorities ………………………………………………………………….                 3

Statement Regarding Oral Argument …………………………………………              5

Statement of the Case ……………………………………………………………….                 5

Statement of Facts ……………………………………………………………………                   6

Summary of State’s Argument ………………………………………………….                9

Argument and Authorities ………………………………………………………..                9

       First Issue on Appeal ………………………………………………………              9
                    TRIAL COURT ABUSE DISCRETION IN
                    ORDERING PAYMENT OF RESTITUTION AT
                    ADJUDICATION HEARING WITHOUT A
                    SUFFICIENT FACTUAL BASIS IN THE RECORD?

            Standard of Review ………………………………………………..             9

            Application and Analysis ………………………………………..         10

       Second Issue on Appeal …………………………………………………..            16
                  TRIAL COURT ERR IN IMPOSING STATUTORILY
                  MANDATED COURT COSTS INCLUDED IN BILL
                  OF COSTS?

            Applicable Law ……………………………………………………….              16

            Application and Analysis …………………………………………          17

Prayer ………………………………………………………………………………………                       19

Certificate of Compliance with Rule 9 …………………………………………         20

Certificate of Service ………………………………………………………………….              20

                                 2
                  INDEX OF AUTHORITIES


CASES                                                           PAGE

Campbell v. State, 5 S.W.3d 693 (Tx. Cr. App. 1999) …………………..    10

Cartwright v. State, 605 S.W.2d 287 (Tx. Cr. App. 1980) ……………     9

Drisker v. State, No. 03-13-00356-CR, 2014 Tex. App. ……………….     17
      LEXIS 8926 (Tx. App. Austin 3rd Dist. 2014 no pet.),
      not designated for publication.

Gutierrez-Rodriguez v. State, 444 S.W.3d 21 ……………………………..        11
      (Tx. Cr. App. 2014)

Johnson v. State, 423 S.W.3d 385 (Tx. Cr. App. 2014) ………………..    17

Jones v. State, 713 S.W.2d 796 …………………………………………………               12
      (Tx. App. Tyler 12th Dist. 1986 no pet.)

Martin v. State, 405 S.W.3d 944 ……………………………………………….              16
     (Tx. App. Texarkana 6th Dist. 2013 no pet.)

Montgomery v. State, 810 S.W.2d 372 (Tx. Cr. App. 1991) …………     10

Rotella v. State, No. 02-12-00485-CR, 2014 Tex. App. ………………. 14, 15
      LEXIS 290 (Tx. App. Ft. Worth 2nd Dist. 2014 no pet.),
      not designated for publication.

Speth v. State, 6 S.W.3d 530 (Tx. Cr. App. 1999) ……………………….      11

Weir v. State, 278 S.W.3d 364 (Tx. Cr. App. 2009) …………………….      16




                                  3
OTHER

Texas Code of Criminal Procedure

      Article 42.12(5) ………………………………………………    12

      Article 103.001 ………………………………………………     19

Texas Government Code

      Section 51.851 ……………………………………………….     18

      Section 51.851(b) …………………………………………….   18

      Section 51.851(d) …………………………………………….   18

Texas Rules of Appellate Procedure

      Rule 44.2(b) …………………………………………………. 14, 19

Texas Attorney General

      Opinion GA-1046 …………………………………………….     18




                                     4
STATEMENT REGARDING ORAL ARGUMENT
      The State does not request oral argument.

STATEMENT OF THE CASE

      The Appellant, Alexis Marie Ireland, was charged by complaint

and information with the felony offense of Forgery. The information

alleged that she had passed a forged check in the amount of $7,475.41

(CR-4).   She was placed on a five years deferred adjudication and

ordered to pay restitution in the amount of $1,922.72 and court costs as

a term and condition of community supervision. (CR-30).

      The Appellant’s deferred adjudication was subsequently revoked

and she was sentenced to 2 years in State Jail and ordered to pay court

cost and the unpaid portion of restitution. (CR-92; RR77).

      She gave timely notice of appeal (CR-97, 102) and the trial court

certified her right to do so. (CR90).

      This case was heard at the same time as the revocation of

community supervision in Cause Number 72691, which is now before

this court in Ireland v. State, No. 03-14-00615-CR.




                                        5
STATEMENT OF FACTS

      Because the Appellant only challenges the order to pay court cost

and restitution the facts of the offense are not germane to the issue on

appeal except in so far as they relate to those orders.

      The Appellant entered a plea of guilty before Judge Joe Carroll on

January 23, 2012. (RR2-6). There was a plea bargain with the State that

she receive felony probation with the terms and conditions left to the

court. (CR- 12).    She judicially confessed to the commission of the

offense. (CR-18).   The trial court subsequently found the evidence

sufficient to support a finding of guilt and placed the Appellant on

deferred adjudication for a term of 5 years after considering the pre-

sentence report without objection from the Appellant. (RR3-4).

      In that pre-sentence report it was noted that the Appellant did

not get away with the proceeds of the check from the bank that were set

out in the complaint and information, but that she had successfully

passed an identical forged check at the same bank the day before in the

amount of $1,922.57. (CR-Supp.-8).

      The trial court included as a term and condition of deferred

adjudication that the Appellant pay restitution to Central National Bank



                                     6
in the amount of $1,922.57 at the rate of $35.00 per month. (CR-30;

RR2-6). The Appellant did not object to that restitution order or to any

of the other terms and conditions of deferred adjudication. She waived

appeal. (CR-25).

      Thereafter a series of motions to adjudicate were filed in this case

and heard by the trial court. Motions to adjudicate were filed on May

17, 2012 (CR-32), on February 12, 2013 (CR-56), and, finally, on

February 19, 2014 (CR-71). In each instance alleged violations included

failure to pay the restitution and court costs are ordered.

      The third motion to adjudicate was heard by Judge John Gauntt on

July 9, 2014. The Appellant entered pleas of true to all of the allegations

in the February 19, 2014 motion to adjudicate. (RR6-8). That motion

included the allegation, admitted by the Appellant, that she was then

delinquent as to her scheduled restitution payments in the amount of

$630.00 and as to court cost in the amount of $140.00.

      The trial court found the evidence sufficient to find that she had

violated her deferred adjudication and allowed her to remain on bond

pending an updated pre-sentence report. (RR6-9). At the subsequent

punishment hearing the trial court revoked her deferred adjudication,




                                     7
found her guilty and assessed punishment at 2 years in State Jail. (RR7-

7).

      During its oral pronouncement of sentence the court         stated:

“you are going to have to pay the accumulated court costs in this case,

either while you are incarcerated or when you get out, in the amount of

$5,722.    You still owe whatever restitution remains unpaid of the

original $19,232.57 that was previously ordered.” (RR7-7). The trial

court misspoke as to the standard court costs as reflected in the Bill of

Costs as $5,722 rather than $572 and the restitution as originally

ordered and as included in the bill of costs of $1,922.57 as $19,323.57

(or it was a typographical error). (CR-95; RR7-7).

      The Judgment Adjudicating Guilt correctly recited $572.00 in

court costs and $1,922.57 in restitution. (CR-92). It also ordered that

the Appellant pay whatever amounts remained unpaid of those total

amounts. (CR-93).

      The Appellant did not object or contest the assessment of court

costs or restitution at trial.




                                    8
SUMMARY OF STATE’S ARGUMENT

      The trial court’s order for payment of restitution remaining

unpaid in the amount ordered in the judgment of adjudication is fully

supported by the record and correctly only imposes an obligation to pay

what the Appellant has not previously paid during the period of

deferred adjudication.

      The court costs ordered to be paid, to the extent that they remain

unpaid, are all statutorily mandated and need not be included in the oral

pronouncement of sentence nor otherwise factually supported by the

record. They are mandatory.

ARGUMENT AND AUTHORITIES

First Issue on Appeal

      Did the trial court abuse its discretion in ordering the payment of

$1,922.57 in restitution because it was without a sufficient factual basis

in the record?

Standard of Review

      Restitution orders are reviewed under an abuse of discretion

standard. Cartwright v. State, 605 S.W.2d 287, 289 (Tx.Cr.App. 1980). A

trial court abuses its discretion only when its decision is arbitrary,


                                    9
unreasonable, or is outside the zone of reasonable disagreement.

Montgomery v. State, 810 S.W.2d 372, 391, 391 (Tx. Cr. App. 1991).

Application and Analysis

      The amount of restitution ordered must be just, must have a

factual basis within the loss of the victim, and must be for a crime for

which the defendant is criminally responsible. Campbell v. State, 5

S.W.3d 693, 696, 697 (Tx. Cr. App. 1999).

Evidence Sufficient to Support Restitution Ordered in the Judgment

      In this case the Appellant pled guilty to passing a forged check to

the bank in the amount of $7,475.41. Evidence received in the original

plea proceeding contained in the pre-sentence report that was taken

into consideration without objection, indicated that the Appellant had

not successfully completed the passing of the forged instrument alleged

in the pleadings but was caught in the act of attempting to do so. It was

determined, however, that she had successfully passed an otherwise

identical check at the same bank the day before in the amount of

$1,922.57.

      The trial court ordered payment of that amount of restitution to

the bank as a term and condition of her deferred adjudication. She did




                                   10
not object, nor did she appeal the terms and conditions of her

community supervision.

      Where a defendant was ordered to pay restitution as a term and

condition of community supervision for an amount not included in the

charged instrument, but which was taken during the same transaction,

and neither objects nor appeals, a contractual obligation is created

between the defendant and the trial court and the defendant fails to

preserve the issue for appeal unless that obligation is one that is

intolerable to the judicial system. This type of order is not. Gutierrez-

Rodriguez v. State, 444 S.W.3d 21, 22-24 (Tx. Cr. App. 2014), citing Speth

v. State, 6 S.W.3d 530, 534,535 (Tx. Cr. App. 1999).

      In this case the initial order of restitution was entered as part of

exactly that type of contractual agreement. It was supported by the

information before the trial court in the pre-sentence report and it

directly related to the passing of forged checks, identical in every

respect except the amount, at the same bank. The trial court’s order had

a factual basis.

      If, however, this restitution to the same victim for the check

passed by the Appellant during the same course of criminal conduct as

that made the basis of this prosecution is not properly ordered upon


                                    11
adjudication of guilt, then the remedy would seem to be simply deleting

the order for the payment of that restitution from the judgment.

      The next question become whether or not the trial court could

order the payment of that same amount of restitution at the time that

the Appellant was sentenced after her deferred adjudication is revoked

based upon the evidence in the original proceeding. When a deferred

adjudication is revoked all proceedings, including the assessment of

punishment, pronouncement of sentence, granting of community

supervision, and the defendant’s appeal continue as if the adjudication

of guilt had not been deferred. Article 42.12(5)(b), Texas Code of

Criminal Procedure. In other words the case takes back up where it left

off at the point of an adjudication of guilt and proceeds on with the

matter of sentencing and appeal. It does not require that the evidence

admitted at the original plea proceeding be repeated or disregarded.

      Sufficient evidence to support a trial court’s order imposing

restitution may be provided by statements contained in the pre-

sentence report where, as here, there is no objection to the court taking

it under consideration. Jones v. State, 713 S.W.2d 796, 797, 798 (Tx. App.

Tyler 12th Dist. 1986 no pet.).




                                   12
      When the trial court revoked the Appellant’s deferred

adjudication the trial went back to the point of adjudication. The trial

court had all evidence before it that was offered in the original plea

proceeding. This included the original pre-sentence report, considered

by the court without objection (RR3-4, 5). That pre-sentence report

included a statement concerning restitution in the amount of $1, 922.57

payable to the bank. (CR-Supplement-8). Therefore, there was sufficient

evidence to support the inclusion of that amount of restitution in the

trial courts order adjudicating guilt. (CR-92).

Oral Pronouncement

      The Appellant correctly notes that restitution must be included in

the oral pronouncement of sentence. In this case the trial court did

include restitution in its oral pronouncement of sentence, however, the

court misspoke (or there was a typographical error) as to the amount of

restitution to be paid.    The trial court ordered “whatever remains

unpaid of the original $19,232.57 previously ordered”. (RR7-7).

Whether this was a misstatement or a misunderstanding as to the

amount the order was clearly for the payment of the unpaid balance of

the originally ordered restitution of $1,922.57 and that total amount is




                                     13
included in the written judgment of the court.1 Although the trial court

may have misstated the amount, the judgment ordering payment is

correct.

       The Appellant claims that the evidence indicates that she has

made some payment toward that total amount of restitution while on

deferred adjudication. That is probably the case. However, in its oral

pronouncement of sentence the trial court specifically stated that “You

still owe whatever restitution remains unpaid...” (RR7-7). Furthermore,

the trial court’s Judgment Adjudicating Guilt imposes the original

amount of restitution of $1,922.57 (CR-92) but also expressly orders

that upon release shall proceed to the Bell County District Clerk’s Office

to “….pay, or make arrangements to pay, any remaining unpaid fines,

court costs, and restitution as ordered by the court above”. (CR-93)

(emphasis supplied).

       In Rotella v. State, No. 02-12-00485-CR, 2014 Tex. App. LEXIS 290

(Tx. App. Ft. Worth 2nd Dist. 2014 no pet.), not designated for

publication, the defendant requested that the trial court deduct the


1
  This misstatement of the amount due in the oral pronouncement was roughly ten times
the actual amount ordered in the judgment of conviction. The amount ordered in the
judgment is much more favorable to the Appellant than that mistakenly recited by the
trial court. If error at all, it is unquestionably harmless. Rule 44.2(b), Texas Rules of
Appellate Procedure.


                                           14
payments made by him during his deferred adjudication in the

judgment adjudicating guilt. The court declined to do so and entered

the original amount of restitution ordered when he was placed on

deferred adjudication. The judgment also included an order that all

payments previously paid are to be credited to the ordered amounts.

The Court of Appeals held that the record supported the amount of

restitution as ordered in the judgment and that portion of it was not in

error.

         The order entered in the judgment in this case that the Appellant

pay any remaining unpaid portions of the total ordered restitution is

tantamount to the order in Rotella. In this case the Appellant’s total

restitution is included in the judgment, however, the Appellant is only

ordered to pay what remains unpaid.2


2
  Presumably the amount paid on deferred adjudication is known by the Appellant or
available in the records of the Community Supervision Department. It might be noted
that at the time of the adjudication hearing the Appellant pled true to the allegation that
she was, at that time, delinquent in her restitution payments in the amount of $630.00.
(CR-71; RR6-6). She was ordered to pay restitution in payments of $35.00 per month.
(CR-30). She was on deferred adjudication from January 23, 2012 until the final motion
to adjudicate was filed on February 19, 2014 showing the $640.00 delinquency. Thus she
should have paid at most $875.00. She made no payments between the filing of that
motion to adjudicate and her sentencing. (CR-Supp.-23). Thus, deducting the admitted
arrearage of $640.00 from the maximum amount that had accrued under the monthly
payment order to that date of $875.00, the record could be construed to show that she had
paid $235.00 in restitution. If that be the case she is entitled to credit for that amount
under the express order contained in the Judgment when payment or arrangement for
payment is made.


                                            15
      The judgment of the trial court accurately set out the correct

amount of restitution that was supported by the evidence.          It also

provided for credit for any amount of restitution paid during the period

of deferred adjudication. It is both reasonable and just.

Second Issue on Appeal

      Did the trial court err in ordering the payment of statutorily

mandated court costs in the judgment of conviction as set out in the

District Clerk’s Bill of Costs?

Applicable Law

      The trial court may impose an assessment of legislatively

mandated court costs against convicted defendants. Those court costs

are not punitive in nature, but rather intended as non-punitive

recoupment of the costs of judicial resources. They do not have to be

included in the oral pronouncement of sentence. Weir v. State, 278

S.W.3d 364, 367 (Tx. Cr. App. 2009).

      Likewise, legislatively mandated court costs are not dependent

upon a showing of the defendant’s ability to pay them. Martin v. State,

405 S.W.3d 944, 947 (Tx. App. Texarkana 6th Dist. 2013 no pet.).

      Mandatory court costs are predetermined, legislatively mandated

obligations imposed upon conviction. The amounts of such court costs

                                    16
are published publically and defendants have constructive notice of

them and they need not be proved at trial. Johnson v. State, 423 S.W.3d

385, 389 (Tx. Cr. App. 2014).

      Mandatory court costs are exactly that- mandatory. They are

related to judicial expenditures and there is no requirement that they

offset a judicial expenditure incurred in the specific case. To so hold

would be inconsistent with the mandatory nature of the statute

requiring such payment. Although they may not be directly attributable

to the particular case, they are “an inescapable cost to judicial

resources.” Drisker v. State, No. 03-13-00356-CR, 2014 Tex. App. LEXIS

8926 (Tx. App. Austin 3rd Dist. 2014 no pet.), not designated for

publication.

      Thus the only question is whether or not the court costs

complained of are legislatively mandated.

Application and Analysis

      The Appellant does not contend that any of the court costs

included on the bill of costs that make up a part of the $572.00 ordered

paid in the Judgment Adjudicating Guilt are not legislatively mandated

except the State Electronic Filing Fee-Criminal in the amount of $5.00.

This item of the court costs, however, is likewise legislatively mandated.


                                    17
          The Appellant claims that there is no statutory authority

mandating the assessment of the $5.00 fee for State Electronic Filing.

Perhaps this is because he has failed to correctly interpret the district

clerk’s abbreviation on the bill of “State Elect Filing Fee-Crimini”.

Nevertheless, Section 51.851(d) of the Texas Government Code provides

that in addition to other court costs, a person shall pay $5.00 as a court

cost on conviction of any criminal offense in any district court, county

court, or statutory county court. Section 51.851 is Electronic Filing Fee.

The designation “criminal” in the bill of costs is significant because

Section 51.851(b) imposes a $20.00 court cost in civil cases.

         This statutorily mandated court cost applies to all cases after

September 1, 2013.3 This case was resolved on September 3, 2014 and

the bill of costs is dated September 8, 2014 (CR-48). It was, therefore,

applicable to this case.

         Because the contested item of court costs, along with all of the

others, totaling $572.00 were statutorily mandated they need not be

supported by evidence in the case, nor be shown to be specifically

applicable to the case.          They are mandatory and the Appellant is

obligated to pay them. Here the trial court misstated the amount of

3
    See Attorney General’s Opinion GA-1046.


                                          18
court costs according to the record as $5,772 rather than $572, which

seems likely to have been a typographical error. Because court costs

need not be a part of the oral pronouncement of sentence and the court

costs are correctly included in the judgment as set out in the Bill of Costs

as provided in Article 103.001 of the Texas Code of Criminal Procedure,

the trial court’s misstatement or the typographical error in the record of

the oral pronouncement is immaterial and harmless under Rule 44.2(b),

Texas Rules of Appellate Procedure.

                                PRAYER

      The State of Texas respectfully prays that the judgment of

conviction herein be, in all things, be affirmed.

                                            Respectfully Submitted,

                                            HENRY GARZA
                                            District Attorney

                                            /s/     Bob D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney
                                            P.O. Box 540
                                            Belton, Tx 76513
                                            (254) 933-5215
                                            FAX (254) 933-5704
                                            DistrictAttorney@co.bell.tx.us
                                            SBA No. 15200000




                                      19
     CERTIFICATE OF COMPLIANCE WITH RULE 9

      This is to certify that the State’s Brief is in compliance with Rule 9

of the Texas Rules of Appellate Procedure and that portion which must be

included under Rule 9.4(i)(1) contains 2,802 words.




                                            /s/   Bob D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney



                   CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of this brief has been

served upon, Justin Bradford Smith, Counsel for Appellant, by electronic

transfer via Email, addressed to him at Justin@templelawoffice.com on

this 12th day of February, 2015.


                                            /s/   Bob D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney




                                     20
