                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-18-00118-CR



    CHABRITTNEE CHAVON STANTON, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 217th District Court
               Angelina County, Texas
              Trial Court No. 2017-0034




      Before Morriss, C.J., Moseley and Burgess, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                          MEMORANDUM OPINION
            On October 3, 2017, the trial court in Angelina County 1 had entered a judgment convicting

Chabrittnee Chavon Stanton of diverting a controlled substance, 2 sentencing her to ten years’

imprisonment, suspending that sentence, and ordering Stanton to serve five years’ community

supervision and to make restitution in the amount of $45,110.94. Almost nine months later, on

May 28, 2018, the trial court entered an order increasing the restitution amount to $145,053.66.

Stanton appeals from the May 28 order. 3




1
 Originally appealed to the Twelfth Court of Appeals in Tyler, this case was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.

2
  The charge arose from Stanton’s theft of numerous hydrocodone tablets from her employer. On July 21, 2017,
Stanton entered an open plea of guilty, and the trial court accepted that plea.

3
    In its entirety the May 28 order stated:

                                               ORDER ON RESTITUTION

            On this date the court finds that the following restitution amount ordered in the original judgment
            of conviction dated OCTOBER 3, 2017, be adjusted to reflect the following restitution to be paid as
            a result to [sic] the defendant’s criminal act:
                                $21,693.06—LEGAL FEES
                                $23,360.60—STOLEN INVENTORY
                                $100,000.00—ADMINISTRATIVE SANCTIONS

            Therefore, it is

                     ORDERED that the defendant’s restitution amount is as follows:

            TOTAL              $145,053.66 to be paid to [Stanton’s former employer].

                               SIGNED on the 28 day of MAY, 2018.

                                                                  /S/ JUDGE PRESIDING


                                                            2
        Stanton complains that the May 28 order was improper because it assessed an improper

restitution amount without due process and that it was not based on a preponderance of the

evidence. The State argues that Stanton’s appeal should be dismissed because (1) the May 28

order is an order modifying the terms of Stanton’s community supervision, thus supporting no

appeal, and (2) Stanton waived her right to appeal. In the alternative, the State argues that the

amount of the restitution ordered in the May 28 order was proper. We do not reach the merits of

this appeal, because we find that the trial court lacked jurisdiction to enter the May 28 order.

Therefore, because the May 28 order was void, we vacate the May 28 order and remand this case

to the trial court.

        Initially, we must determine the nature of the May 28 order. Stanton characterizes the May

28 order as her final sentence, the completion of her final judgment of conviction, and the trial

court’s final finding of restitution. However, that characterization ignores some vital facts.

        First, at the October 3, 2017, hearing, testimony unambiguously supported restitution in

the amount of $44,996.34. At the end of the hearing, the trial court pronounced its sentence, which

included “restitution as determined.” Although the trial court did not specifically state the

restitution amount, its use of the past tense suggested that it had determined the restitution in an

amount consistent with the testimony given at the hearing. There was no indication at that time

that the trial court was in any way holding the sentencing in abeyance to take additional evidence

to determine the restitution amount. Rather, on the same date, October 3, 2017, the trial court

memorialized the sentence in its the final judgment of conviction, which included restitution in the




                                                 3
amount of $45,110.94 4 as part of Stanton’s punishment and sentence. See TEX. CODE CRIM. PROC.

ANN. art. 42.01, § 1(25) (West Supp. 2018) (providing that, if restitution is ordered, the written

judgment of conviction must contain “a statement of the amount of restitution ordered”); Ex parte

Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006) (noting that restitution is punishment);

Bailey v. State, 160 S.W.3d 11, 15 (Tex. Crim. App. 2004) 5 (noting that restitution is part of the

sentencing process). Finally, in its order imposing conditions of community supervision, the trial

court again stated that it had determined the restitution to be $45,110.94. Thus, Stanton had been

finally sentenced, and her restitution had been determined and pronounced, on October 3, 2017.

         In contrast, the State characterizes the May 28 order as an order modifying the terms of

Stanton’s community supervision. As such, the State moves to dismiss the appeal since an order

modifying the terms of a community supervision order is not appealable. 6 Davis v. State, 195


4
 Although there is a discrepancy between the amount of the restitution imposed in open court and the amount of
restitution memorialized in the final judgment of conviction of October 3, 2017, neither that judgment, nor that
discrepancy, has been appealed. Therefore, we have no jurisdiction to amend that written judgment to comport with
the sentence pronounced by the trial court.
5
 Stanton argues that this case is similar to Bailey, in which the Texas Court of Criminal Appeals held that the defendant
had a right to appeal a final judgment of conviction after a restitution order was entered. Bailey, 160 S.W.3d at 15–
16. However, in Bailey, after imposing a probated sentence at the sentencing hearing, the trial court reset the case for
a hearing to consider the State’s request for restitution. The restitution hearing was heard, and restitution ordered, one
month later. Id. at 12. The court held that, under the Texas Code of Criminal Procedure, restitution is part of the
sentencing process, that “restitution is imposed as part of the original sentence, and that the sentence is not complete
until restitution is imposed.” Id. at 15 (citing TEX. CODE CRIM. PROC. ANN. art. 42.037(e) (West 2018)). The court
then noted that, under the unique facts of that case, the defendant did not know the amount of restitution, or whether
it would be imposed, until the restitution order was entered. Id. Further, the trial court and all parties in that case
regarded the judgment as incomplete until the restitution order was entered. Id. at 15–16. In this case, however, the
trial court imposed restitution as part of the sentence at the October 3, 2017, sentencing hearing and memorialized it
in its judgment of conviction. Therefore, there was a complete and final judgment of conviction on October 3, 2017.
Further, the trial court recognized that it had ordered a restitution amount in its original judgment, both at the hearing
on restitution and in the May 28 order, and the State acknowledges in its brief that the October 3, 2017, judgment
included restitution. The October 3, 2017, judgment was complete.
6
 The State also contends that Stanton waived her right to appeal and did not secure the trial court’s permission to
appeal. See Monreal v. State, 99 S.W.3d 615, 617 (Tex. Crim. App. 2003) (affirming that “a valid waiver of appeal
                                                            4
S.W.3d 708, 711 (Tex. Crim. App. 2006). However, the May 28 order never mentions the terms

of Stanton’s community supervision. Rather, the order specifically refers to the trial court’s

October 3, 2017, judgment of conviction and purports to “adjust,” or amend, the restitution amount

in the judgment of conviction by increasing the amount of the restitution to $145,053.66. Thus,

under its plain terms, the May 28 Order purports to amend the judgment of conviction, not the

terms and conditions of the community supervision order. 7

         As noted above, restitution is punishment and an aspect of the sentence that must be

imposed on the defendant, and it must be included in the written judgment of conviction. TEX.

CODE CRIM. PROC. ANN. art. 42.01, § 1(25); Cavazos, 203 S.W.3d at 338; Bailey, 160 S.W.3d at

17 (Cochran, J., concurring). All of these requirements were met at the October 3, 2017, hearing

and in the judgment of conviction entered that same date. If a post-judgment motion is not filed,

the trial court’s plenary power to modify or amend its sentence expires thirty days after the

sentence is imposed. See TEX. R. APP. P. 21.4; State v. Aguilera, 165 S.W.3d 695, 697–98 (Tex.

Crim. App. 2005); Kay v. State, No. 06-15-00169-CR; 2015 WL 8322043, at *1 n.1 (Tex. App.—




prevents a defendant from appealing without the trial court’s consent”). However, after the State filed its brief, the
record in this case was supplemented with the trial court’s certification of defendant’s right to appeal in which the trial
court gave Stanton permission to appeal the restitution order.
7
 Once restitution is imposed, if the defendant is placed on community supervision, the trial court must order the
payment of the restitution as a condition of community supervision and provide for installment payments as part of
the terms of its community supervision order. TEX. CODE CRIM. PROC. ANN. art. 42.037(g), (h) (West 2018). During
the period of community supervision, the trial court may modify the terms and conditions of its community supervision
order regarding how restitution is to be repaid. TEX. CODE CRIM. PROC. ANN. art. 42A.051(b) (West 2018); Bailey,
160 S.W.3d at 18 (Cochran, J., concurring). However, Article 42A.051(b) of the Texas Code of Criminal Procedure
does not authorize the trial court to modify the amount of restitution, which is set at the sentencing hearing. Bailey,
160 S.W.3d at 17–18 (Cochran, J., concurring).

                                                            5
Texarkana Dec. 9, 2015, no pet.) (mem. op., not designated for publication). 8

        An order entered after the trial court’s plenary power has expired is void. See State v.

Bates, 889 S.W.2d 306, 310 (Tex. Crim. App. 1994). Thus, the May 28 order that purports to

modify the amount of the restitution, entered months after the trial court lost its plenary power to

modify its sentence, is void. 9 Therefore, we vacate the May 28 Order. See TEX. R. APP. P. 43.2.

        For the reasons stated, we vacate the trial court’s May 28, 2018, order of restitution and

remand this case to the trial court.



                                                     Josh R. Morriss III
                                                     Chief Justice

Date Submitted:           November 9, 2018
Date Decided:             January __, 2019

Do Not Publish




8
 “Although unpublished opinions have no precedential value, we may take guidance from them ‘as an aid in
developing reasoning that may be employed.’” Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.—Texarkana 2017,
pet. ref’d) (quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d)).
9
 A determination that the order appealed from is void impacts our jurisdiction. Though Stanton does not claim that
the May 28 Order is void, we may sua sponte address the issue of whether we have jurisdiction over an appeal. State
v. Roberts, 940 S.W.2d 655, 657 (Tex. Crim. App. 1996), overruled on other grounds, State v. Medrano, 67 S.W.3d
892, 901–03 (Tex. Crim. App. 2002)).
                                                        6
