                                                                                                       ACCEPTED
                                                                                                  13-13-00015-CR
                                                                                    THIRTEENTH COURT OF APPEALS
        FILED                                                                             CORPUS CHRISTI, TEXAS
                                                                                             2/25/2015 1:52:57 PM
IN THE 13TH COURT OF APPEALS
                                                                                                DORIAN RAMIREZ
        CORPUS CHRISTI                                                                                     CLERK
          2/25/15
                                      CAUSE NO: 13-13-00150-CR
DORIAN E. RAMIREZ, CLERK
BY JParedes
                               IN THE THIRTEENTH COURT OF APPEALS RECEIVED IN
                                                            13th COURT OF APPEALS
                                     CORPUS CHRISTI-EDINBURG
                                                         CORPUS CHRISTI/EDINBURG, TEXAS
                                                                    2/25/2015 1:52:57 PM
                                       MELISSA ANN MERCER            DORIAN E. RAMIREZ
                                                                            Clerk
                                             Appellant

                                                    v.

                                        THE STATE OF TEXAS
                                              Appellee


                                   Appeal from the 156th District Court,
                                            Bee County, Texas
                                  Trial Court Cause No. B-09-2167-CR-B



                     APPELLANT’S SUPPLEMENTAL BRIEF ON REMAND



                                                 Julie Balovich
                                                 SBN 24036182
                                                 Bee County Regional Public Defender
                                                 331A North Washington Street
                                                 Beeville, Texas 78102
                                                 Tel: (361) 358-1925
                                                 Fax: (361) 358-5158
                                                 jbalovich@trla.org

                                                 ATTORNEYS FOR APPELLANT
                                                 MELISSA ANN MERCER
                            TABLE OF CONTENTS

INDEX OF AUTHORITIES………………………………………………………iii

ISSUES FOR DECISION……………..…………………………………………..2

I.    Whether the trial court had authority to impose costs of county-jail
incarceration as part of Appellant’s sentence upon revocation of her term of
community supervision.

II.    Whether Appellant’s complaints on appeal are procedurally defaulted for
failure to object at the trial court.

ARGUMENT……………………………………………………………………….3

I.     No statute authorizes the trial court to order Appellant to pay reimbursement
of her county jail confinement upon revocation of her community
supervision………………………………………………………………………….3

II.   Appellant was not required to preserve error at the trial court………...……5

PRAYER FOR RELIEF……………………………………………………………7

CERTIFICATE OF COMPLIANCE……………………………………………….8

CERTIFICATE OF SERVICE……………………………………………………..9




                                         ii
                        INDEX OF AUTHORITIES

Cases

Burt v. State, 396 S.W.3d 574 (Tex. Crim. App. 2013)…………………………..5

Landers v. State, 402 S.W.3d 252 (Tex. Crim. App.2013)…………………….…..5

Martinez v. State, 91 S.W.3d 331 (Tex. Crim. App. 2002)…………………..........5

Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010)….………………......5 , 7

Mercer v. State, No. PD-1711-13, ____ S.W.3d ____,
     2015 WL 180396 (Tex. Crim. App. 2015)…………………………1, 2, 3, 4

Mercer v. State, No. 13-13-00150-CR, 2013 WL 6055271
     (Tex. App.—Corpus Christi-Edinburg, Nov. 14, 2013) (mem. op.)….....1, 3


Statutes

TEX. CODE CRIM. PROC. art. 26.04(p)……………………….…………………….4

TEX. CODE CRIM. PROC. art. 26.05(g)……………………….…………………….7

TEX. CODE CRIM. PROC. art. 42.037……………………………………………….3

TEX. CODE CRIM. PROC. art. 42.038………………………………………….…3, 4




                                     iii
                           CAUSE NO: 13-13-0015-CR

                  IN THE THIRTEENTH COURT OF APPEALS
                       EDINBURG – CORPUS CHRISTI

                            MELISSA ANN MERCER
                                  Appellant

                                          v.

                             THE STATE OF TEXAS
                                   Appellee


          APPELLANT’S SUPPLEMENTAL BRIEF ON REMAND


TO THE HONORABLE COURT:

      This cause is again before this Court on remand from the Court of Criminal

Appeals. This Court originally ruled that the trial court lacked authority to impose

costs of county-jail incarceration as a term of Appellant’s community supervision

and ordered her judgment reformed to remove that amount. Mercer v. State, No.

13-13-00150-CR, 2013 WL 6055271, at *1 n.2 (Tex. App.—Corpus Christi-

Edinburg, Nov. 14, 2013) (mem. op.) The Court of Criminal Appeals vacated this

ruling after holding that authority to impose county-jail incarceration costs as a

term of community supervision is not at issue in this case. Mercer v. State, No.

PD-1711-13, ____ S.W.3d ____, 2015 WL 180396, at *4 (Tex. Crim. App. 2015).

Instead the properly framed issue is whether the trial court had authority to order



                                          1
Appellant to reimburse county-jail incarceration costs as part of her sentence when

the trial court revoked Appellant’s community supervision. Id. at *4. The Court of

Criminal Appeals directed this Court to address this issue, preservation, and any

other properly presented issues that must be addressed to resolve Appellant’s

appeal. Id. at *4-5.

      This brief supplements Appellant’s argument to address the issues as framed

by the Court of Criminal Appeals, and concludes that the result should be the

same: the trial court erred in ordering Appellant to pay $160 in county-jail

incarceration costs.



ISSUES FOR DECISION

I.    Whether the trial court had authority to impose costs of county-jail

incarceration as part of Appellant’s sentence upon revocation of her term of

community supervision.



II.   Whether Appellant’s complaints on appeal are procedurally defaulted

for failure to object at the trial court.




                                            2
                                        ARGUMENT

     I.   No statute authorizes the trial court to order Appellant to pay
reimbursement of her county jail confinement upon revocation of her
community supervision.

       The judgment orders Appellant to pay the balance of her reimbursement1 for

the expense of periods of confinement in county jail which had been ordered as a

condition of community supervision. CR 202. The trial court had no authority to

make this order as part of her judgment on revocation.

       The only authority for a trial court to order a defendant to reimburse a

county for costs of confinement in county jail is found at Code of Criminal

Procedure article 42.038 “Reimbursement for Confinement Expense.” Section (a)

of that statute authorizes a trial court to order a misdemeanor offender who is

sentenced to county jail to reimburse the county for the costs of her confinement at

the time she is convicted. TEX. CODE CRIM. PROC. art. 42.038(a). Appellant’s case

does not meet the criteria of this statute: she is not a misdemeanor offender and

the order for her to reimburse the county for confinement was not imposed upon

conviction, but rather upon revocation. Section (b) authorizes a trial court to order

a misdemeanor offender who is required to serve time in county jail as a condition
1
  The trial court used the term restitution, but both this Court and the Court of Criminal Appeals
have recognized that the disputed amount was assessed for reimbursement of confinement
expenses, not restitution to the victim. 2013 WL 6055271, at *1 n.2; 2015 WL 180396, at *1,
n.1; see TEX. CODE CRIM. PROC. art. 42.037 (restitution is paid to a victim to compensate for
damages, loss, or injuries). There was no restitution in this case to the victim of Appellant’s
offense; the items Appellant paid for with another person’s debit card were returned and
restitution was not part of the original judgment. CR 37-39, 66.

                                                 3
of community supervision to reimburse the county for the costs of her confinement

also as a condition of community supervision. Id. art. 42.038(b). Appellant’s case

also does not meet the criteria of this statute: again, she is not a misdemeanor

offender, and the order for her to pay reimbursement at issue in this appeal was

imposed at the execution of her sentence. Accordingly, this section did not

authorize the trial court to order Appellant to pay reimbursement costs as part of

her judgment.

       Even if either of these sections applied, they both come with an important

due process safeguard: a court may not require reimbursement if the defendant is

indigent. Id. art. 42.038(c). For non-indigent defendants, the court must consider

the defendant’s financial circumstances before ordering reimbursement. Id. art.

42.038(d). Appellant was indigent as shown by her sworn affidavit, and the record

reflects no inquiry by the trial court into her ability to pay.2 CR 8-9, RR passim.

The law presumes she remains indigent for the remainder of the proceeding unless

a material change in her financial circumstances occurs. TEX. CODE CRIM. PROC.

art. 26.04(p). There was no evidence that Appellant’s financial circumstances had

changed. Indeed, her sentence was being revoked and she was being ordered to

serve a two year jail sentence. CR 202. Accordingly, the judgment ordering her to

2
  Although the Court of Criminal Appeals stated that Appellant made this argument “for the first
time” before it, see 2015 WL 190396 at *2, in fact Appellant did address this issue in her initial
brief before this Court. Appellant’s Brief at 9 (Mercer I) (“First, at no point were any of the
restitution amounts ordered after the trial court had considered Appellant’s ability to pay.”)

                                                4
reimburse the county for confinement expenses was unsupported by legally

sufficient evidence. See Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App.

2011) (affirming court of appeals that held trial court erred in ordering

reimbursement of attorneys fees absent evidence of appellant’s ability to pay).

        There being no authority for the trial court’s judgment for reimbursement, it

should be reformed to delete the provision for reimbursement in the amount of

$160.



II.     Appellant was not required to preserve error at the trial court.

        “The requirement that an objection be raised in the trial court assumes that

the appellant had the opportunity to raise it there.” Burt v. State, 396 S.W.3d 574,

577 (Tex. Crim. App. 2013). The rationale behind requiring an appellant to make

an objection is to allow the trial court the opportunity to correct errors. Landers v.

State, 402 S.W.3d 252, 254 n.5 (Tex. Crim. App. 2013) (citing Martinez v. State,

91 S.W.3d 331, 336 (Tex. Crim. App. 2002)). There are two reasons why

Appellant could not and did not have to object in order to preserve the argument

that the trial court had no authority to order her to pay confinement expense as part

of her judgment.

        First, the trial court orally pronounced a sentence that did not give clear

notice he would be ordering Appellant to pay for reimbursement of Appellant’s


                                            5
confinement expenses; in fact, he expressly questioned that he had the ability to do

so:

      Her community supervision will be revoked, the original sentence
      imposed, two years in a state jail with 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.

RR 12 (emphasis added). Until the reimbursement amount appeared in the written

judgment, Appellant had no notice that the judge had ordered her to pay county jail

confinement expenses as part of the judgment. Although the written judgment was

signed and filed on the same day as the hearing, the record does not reflect the date

Appellant received a copy of it before filing her appeal. CR 202. See Burt, 396

S.W.3d at 578 n.5 (acknowledging the unlikelihood that an appellant would have

found out about a restitution order after written judgment issued where trial

counsel had been dismissed, appellant had begun serving her sentence, and there is

no requirement inmates be served with their judgment). Accordingly, Appellant is

entitled to challenge the authority of the trial court to order this expense for the

first time on appeal.

      Second, as discussed above, a reimbursement order, if authorized, may not

be assessed in cases where a judge has determined a defendant is indigent and may

only be ordered after a trial court considers the defendant’s financial

circumstances. TEX. CODE CRIM. PROC. art. 42.038(c), (d). The statute is

analytically similar to the statute which authorizes a trial court to order a defendant

                                           6
to offset or pay the costs of his court-appointed attorney after it determines the

defendant has the ability to pay. TEX. CODE CRIM. PROC. art. 26.05(g). An

objection at trial is not necessary to preserve a sufficiency complaint under these

statutes. See Mayer, 309 S.W.3d at 556 (Tex. Crim. App. 2011) (holding that an

objection at trial is not required to preserve a defendant’s complaint of insufficient

financial resources and evidence of ability to pay attorneys fees as court costs).

                             PRAYER FOR RELIEF

      WHEREFORE, Appellant prays that this Court reform the judgment to

delete the requirement that Appellant pay $160 in costs.



                                               Respectfully submitted.

                                               /s/ Julie M. Balovich
                                               Julie Balovich
                                               SBN 24036182
                                               331A N. Washington
                                               Beeville, Texas 78102
                                               Tel: (361) 358-1925
                                               Fax: (361) 358-5158
                                               jbalovich@trla.org




                                           7
                      CERTIFICATE OF COMPLIANCE

      The undersigned certifies that, according to this computer word processor’s

word count program, this document contains 1,580 words, exclusive of the items

excepted by Tex. R. App. P. 9.4(i)(1).

                                             /s/ Julie M. Balovich
                                             Julie Balovich




                                         8
                         CERTIFICATE OF SERVICE

      The undersigned attorney hereby certifies that a true and correct copy of the

foregoing has been delivered by electronic filing manager if registered but

otherwise by email or regular mail to:

State Prosecuting Attorney, P.O. Box 13046, Austin, Texas 78711

Hon. District Attorney Jose L. Aliseda, Jr., 701 E. Houston, Beeville, Texas 78102

Hon. Edward F. Shaughnessy III, 206 E. Locus Street, San Antonio, Texas 78212

on this 25th day of February, 2015.


                                             /s/ Julie Balovich
                                             Julie Balovich




                                         9
