            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. PD-1711-13


                          MELISSA ANN MERCER, Appellant

                                             v.

                                 THE STATE OF TEXAS

              ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE THIRTEENTH COURT OF APPEALS
                                BEE COUNTY

              A LCALA, J., filed a concurring opinion.


                                CONCURRING OPINION

       I join this Court’s majority opinion and its judgment reversing and remanding this

case to the court of appeals. I write separately to address my reasoning with respect to the

analysis in the court of appeals’ opinion regarding (1) preservation of error, and (2) the

propriety of an order for reimbursement for incarceration in a county jail as a condition of

state-jail felony probation. See Mercer v. State, No. 13-13-00150-CR, 2013 WL 6055271,

at *2 (Tex. App.—Corpus Christi Nov. 14, 2013) (mem. op.) (not designated for
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publication).

                                    I. Preservation of Error

       As this Court’s majority opinion points out, the pertinent question in this case is

whether the trial court properly ordered appellant to pay $160 in reimbursement in its final

judgment revoking community supervision and sentencing her to imprisonment. Although

I agree with the majority opinion that the court of appeals erred by addressing preservation

of error as to the wrong juncture of the proceedings, I take this opportunity to additionally

point out that the court of appeals did properly describe the law with respect to preservation

of error. The court of appeals noted that a person may not be held to have forfeited error

when he has not had an opportunity to object. See Burt v. State, 396 S.W.3d 574, 577-78

(Tex. Crim. App. 2013) (“The requirement that an objection be raised in the trial court

assumes that the appellant had the opportunity to raise it there[,]” and “if an appellant never

had the opportunity to object, then he has not forfeited error”).

       The record appears to suggest that the trial court’s oral pronouncement at the time of

sentencing did not give appellant clear notice that she would be required to reimburse the

county for the costs of her prior incarceration. After revoking appellant’s community

supervision and sentencing her to two years’ confinement in a state-jail facility, the trial

court’s oral pronouncement ordered her to pay “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.”

The trial court referred to “restitution,” a matter described in Article 42.037, rather than
                                                                                    Mercer - 3

“reimbursement” for incarceration, a matter described in Article 42.038(b). Compare T EX.

C ODE C RIM. P ROC. art. 42.037(a) (providing for restitution for crime victims), with T EX.

C ODE C RIM. P ROC. art. 42.038(b) (providing for reimbursement for confinement expenses).

And the trial court did not orally pronounce the amount of “restitution” owed by appellant

to reimburse the county for her incarceration. See Burt, 396 S.W.3d at 578-79. Although the

record seems to suggest that the oral pronouncement did not fairly apprise appellant of her

need to assert an objection on the basis that the trial court could not order reimbursement for

the costs of her prior confinement in the county jail, I agree with this Court’s majority

opinion that this is a matter for resolution in the first instance by the court of appeals on

remand.

 II. Reimbursement for Incarceration in County Jail in State-Jail Felony Probation

       Although I agree with this Court’s majority opinion that remands this case for the

court of appeals to more specifically decide whether the trial court erred by including the

unpaid amounts of reimbursement in its judgment of revocation, I write separately to address

the court of appeals’ broader holding that the trial court was not authorized to order

reimbursement for the costs of confinement in a county jail. The court of appeals broadly

held that reimbursement was not permitted even as a condition of community supervision.

If it was correct on that point, and assuming that error was preserved, the court of appeals

would have properly deleted the reimbursement amount from the trial court’s judgment

sentencing appellant to imprisonment because the inclusion of reimbursement in the final
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judgment was predicated on the fact that appellant had not paid the reimbursement ordered

as a condition of her community supervision. In short, if appellant is correct as to her broader

contention that reimbursement may not be included as a condition of community supervision,

then this Court would be required to remand for only an analysis of preservation of error.

       The court of appeals stated, “[W]e see nothing in the statute that authorizes the trial

court to order a probationer in a felony case to reimburse the cost of her confinement.” See

Mercer, 2013 WL 6055271, at *2.1 I disagree with this statement of the law by the court of

appeals. I conclude that a trial court may order a non-indigent defendant on community

supervision for a state-jail felony case to reimburse a county for the costs of confinement.

A judge sentencing a person to state-jail felony community supervision may “impose any

condition of community supervision on a defendant that the judge could impose on a

defendant placed on supervision for an offense other than a state jail felony.” T EX. C ODE

C RIM. P ROC. art. 42.12, § 15(c)(1). Because he may be subject to any of the conditions that

might be imposed on a misdemeanor defendant on community supervision, a non-indigent

defendant on community supervision for a state-jail felony may be required to reimburse the

county for the costs of her confinement in a county jail as a condition of community

supervision. See T EX. C ODE C RIM. P ROC. art. 42.038(b), (c) (court that requires misdemeanor

1

        The issue in this case is whether the trial court may include, in its judgment revoking
community supervision and sentencing a defendant to prison, unfulfilled amounts that had been
ordered only as a condition of community supervision. In my mind, those amounts ordered only as
part of a community supervision are characteristically different from amounts in a trial court’s
judgment that are to be paid as part of the court’s judgment, regardless of the community
supervision, such as the Bill of Costs.
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probationer to “submit to a period of confinement in a county jail as a condition of

community supervision may also require as a condition of community supervision that the

defendant reimburse the county for the defendant’s confinement,” so long as the defendant

is not indigent).2 Furthermore, the Code generally permits a trial court to “impose any

reasonable condition” as a condition of community supervision. See T EX. C ODE C RIM. P ROC.

art. 42.12, § 11(a) (listing possible conditions of community supervision including multiple

types of reimbursements and permitting judge to generally “impose any reasonable

condition”). Because the Code permits a trial court to order reimbursement for jail time

served as a condition of community supervision for non-indigent state-jail defendants, I

conclude that the court of appeals erred by holding that no statute authorized the trial court’s

order for reimbursement as a condition of community supervision.

        Unlike the broader question that asks whether a trial court may order reimbursement



2
        Article 42.038(a) states, “In addition to any fine, cost, or fee authorized by law, a court that
sentences a defendant convicted of a misdemeanor to serve a term of confinement in county jail and
orders execution of the sentence may require the defendant to reimburse the county for the
defendant’s confinement at a rate of $25 a day.” TEX . CODE CRIM . PROC. art. 42.038(a). Article
42.038(b) states that when reimbursement for confinement in a county jail is ordered as a condition
of community supervision, “the amount of reimbursement [is to be] determined as if the defendant
were serving an executed sentence.” TEX . CODE CRIM . PROC. art. 42.038(b). Furthermore, a trial
court may not require reimbursement if the judge determines that “the defendant is indigent[.]” TEX .
CODE CRIM . PROC. art. 42.038(c). Here, the trial court required appellant to pay $40 per day, and
the record suggests that appellant was indigent. Because this Court remands the case for
consideration of whether the trial court’s reimbursement order was proper, this Court does not reach
the merits on the question whether the trial court made any determination that appellant was not
indigent when it ordered reimbursement. Any determination on the merits must be made by the court
of appeals if the matter has not been forfeited due to the lack of a trial objection or argument on
appeal.
                                                                                     Mercer - 6

of this sort as a condition of community supervision, the more specific question here, as

noted by the majority opinion, is whether that reimbursement amount may be included in a

judgment revoking community supervision and sentencing a defendant to a term in a state-

jail facility. That question was not addressed by the court of appeals. But, perhaps the

question was not addressed because appellant did not adequately make that argument to that

court. It is not entirely clear to me that appellant has adequately presented that challenge in

her appellate briefs, which largely focus on the propriety of the reimbursement order in her

conditions of community supervision. In her appellate brief to the court of appeals, however,

a small portion of it asserts that the complained-of fees were ordered when the trial court had

sentenced her to imprisonment. To that extent, I conclude that the court of appeals should

address whether appellant, by failing to adequately present the argument in her appellate

brief, has forfeited her complaint as to the inclusion of reimbursement for the costs of her

prior county-jail confinement in the trial court’s judgment sentencing her to prison.

       Assuming that appellant’s brief to the court of appeals presented the argument that the

trial court may not order reimbursement for her confinement in a county jail upon revocation

of a state-jail community supervision, then the merits of that issue become extremely

complex. The Code of Criminal Procedure lists in detail what may be included in a trial

court’s judgment, and reimbursement for the costs of incarceration is neither included in the

list nor does it appear in another section of the Code that requires the judgment to include

restitution and reparation. See T EX. C ODE C RIM. P ROC. art. 42.01 (listing items that “shall”
                                                                                         Mercer - 7

be reflected in the judgment and specifically listing restitution in § 1(25)); T EX. C ODE C RIM.

P ROC. art. 42.12, § 23(a) (stating, “The judge shall enter the amount of restitution or

reparation in the judgment in the case.”).3 Regardless, even though it is not specifically listed

in the Code, a trial court may have in its general power the authority to order this type of

reimbursement under these circumstances in which the reimbursement had been a properly

included, unfulfilled condition of community supervision. If the issue has not been forfeited

due to appellant’s failure to object at her revocation hearing or for inadequate briefing, then

it presents a difficult question of apparent first impression needing resolution in the court of

appeals.

       With these comments, I join the majority opinion.

Filed: January 14, 2015

Publish




3
         The Code requires that a judgment include the amount of any “reparation” owed by the
defendant. See TEX . CODE CRIM . PROC. art. 42.12, § 23(a). The reimbursement at issue in this
appeal could possibly fit within the broadly understood definition of the word “reparation,” which
is undefined in the Code. Black’s Law Dictionary defines “reparation” as the “act of making amends
for a wrong.” BLACK’S LAW DICTIONARY 1490 (10th ed. 2014). Because a defendant sentenced to
confinement in county jail as a condition of community supervision is making amends for his wrong
against society, it is possible that the trial court’s order of reimbursement to the county for that
incarceration could be classified as an order of reparation. It is also possible, however, that
reparation was intended solely for the victim of an offense and was merely an alternative phrasing
for restitution. It may be necessary to examine all the extra-textual factors to answer the question
whether reparations include this type of reimbursement.
