

NO. 07-09-0377-CR
 
IN THE COURT OF
APPEALS
 
FOR
THE SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL
E
 

AUGUST 5,  2010
 

 
THE STATE OF TEXAS, APPELLANT
 
v.
 
TY KELLY GARDNER, APPELLEE 

 

 
 FROM THE COUNTY COURT
AT LAW NO. 2 OF POTTER COUNTY;
 
NO. 124935; HONORABLE PAMELA COOK SIRMON, JUDGE

 

 
Before QUINN, C.J., CAMPBELL, J., AND BOYD, S.J.[1]
 
 
MEMORANDUM OPINION
 
 
            In this appeal, the State of Texas presents three
issues which, it contends, demonstrate that the trial court reversibly erred in
quashing the information.  In the first
count of the two-count indictment, Ty Kelly Gardner (herein Gardner) was
charged with intentionally, knowingly, or recklessly causing bodily injury to
Charity Cravy (Cravy), at
the time a member of Gardner’s household, by striking her with his hand or with
a vehicle door.  In the second count, he
was charged in identical language except for the allegation that Cravy was a member of his household.  The information was subsequently amended to
change the date of the alleged offense but was without any other change.  For reasons we later state, we reverse the
order of the trial court and remand the cause for further proceedings.
            In
pursuing its appeal, the State presents three issues for our decision:  1) what is the proper standard of review of a
trial court order quashing an information,  2) was the information with which this
appeal is concerned specific enough to inform the defendant of the accusation
against him, and 3) are the two acts alleged in the information separate
offenses?  Because its decision is
determinative of this appeal, we will proceed directly to consider the third
issue.
            Initially,
because it is a question of law, we review the sufficiency of a charging
instrument de novo.  State
v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).  In doing so, we must first determine if the
information here in question gave adequate notice of the alleged criminal
conduct.  If we find that notice
sufficient, our inquiry is ended. 
However, if we determine the notice was insufficient, we must then
determine if, in the context of the case, the lack of notice had an impact on
the defendant’s ability to prepare a defense, and finally, if it did, how great
the impact was.   Adams v. State, 707 S.W.2d  900, 903 (Tex. Crim. App. 1986).  
              The gist of appellee’s
motion to quash was that his fifth, sixth, and fourteenth amendment rights were
denied by the “failure of the [i]nformation
to allege an essential element of the offense, namely what specific object was used
to strike Charity Cravy.” Section 22.01 of the Texas
Penal Code provides that “[a] person commits an offense if the person . . . intentionally,
knowingly, or recklessly causes bodily injury to another, including the
person’s spouse.”  Tex. Penal Code Ann. §22.01(a)(1)
(Vernon Supp. 2009).  In instances in
which the charging instrument alleges, in a single count, two separate offenses
arising under the same penal code provision, the jury must agree on which
offense it finds the defendant committed. 
Jefferson v. State, 189 S.W.3d
305, 311 (Tex. Crim. App. 2006); Dolkart
v. State, 197 S.W.3d 887, 892 (Tex. App.–Dallas 2006, pet. ref’d).  Thus, 
it is necessary to identify the essential elements or gravamen of an
offense and the alternate modes of its commission, if any there be.  Pizzo v. State, 235 S.W.3d 711, 714 (Tex. Crim. App. 2007).  This can be best accomplished by diagramming
the statutory text according to proper grammar rules.
            As
the Pizzo court noted, “the essential
elements of an offense are, at a minimum: 1) ‘the subject (the defendant)’; 2) ‘the
main verb’; 3) ‘the direct object if the main verb requires a direct object (i.e., the offense is a result-oriented
crime’; [4] ‘the specific occasion’; and [5] the requisite mental state.”  Id.
at 714-15.  Furthermore, the court
opined, “[t]he means of commission or nonessential unanimity elements are
generally set out in ‘adverbial phrases’ that describe how the offense was
committed” and, it further reasoned, “[s]uch phrases are commonly preceded by”
the preposition “by.”  Id. 
Moreover, the transitive verb indicates the prohibited conduct about
which the jury must be unanimous.   See White
v. State, 208 S.W.3d 467, 468 (Tex. Crim. App. 2006) (citing Jefferson v. State, 189 S.W.3d at 314
(Cochran, J. concurring)).  The unanimity
requirement is not violated when the jury has the option of choosing between
alternative modes of commission of the offense. 
Pizzo v. State, 235 S.W.3d at
715.  Thus, different modes of commission
of an offense may be stated in a jury instruction if the charging instrument
alleges the different means of committing an offense in the conjunctive.  Id.  Moreover, when the acts and commission all
involve the same injury to the same complainant during the same transaction
with the same level of culpability, dispensing with jury unanimity does not
violate due process.  Jefferson v. State, 189 S.W.3d at 313.
            In
this case, the State alleged that appellant (the subject) committed an assault
(the verb) by either striking the victim (the direct object) with his cast, his
arm, or with the car door (the “adverbial phrase”).  That being so, the State did allege an offense
and included alternate ways by which it could have been committed.  Thus, the trial court erred in granting the
motion to quash the information.
            Accordingly, we must, and do hereby,
reverse the trial court dismissal order and remand the cause for further
proceedings.     
 
                                                                                    John
T. Boyd
                                                                                    Senior
Justice
Do not publish.
 




[1]John T. Boyd, Chief Justice (Ret.), Seventh Court of
Appeals, sitting by assignment.  Tex. Gov=t Code
Ann. '75.002(a)(1) (Vernon 2009). 
 



margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:normal'>FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL A
 

MAY
27, 2010
 

 
KENNETH GLENN WEBB, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 

 
 FROM THE 181ST DISTRICT COURT OF RANDALL
COUNTY;
 
NO. 11,994-B, 18-617-B, 18-618-B; HONORABLE JOHN B. BOARD, JUDGE

 

 
Before CAMPBELL
and HANCOCK and PIRTLE, JJ.
 
 
OPINION ON ABATEMENT
            On
February 25, 2010, in each referenced cause, pursuant to section 501.014(e) of
the Texas Government Code, the trial court signed and entered an Order to Withdraw Inmate Funds.[1]  By the withdrawal notifications
entered in each cause, the trial court directed the
Texas Department of Criminal Justice, Institutional Division, to withhold from
Webb’s inmate trust account the following amounts: (1) $3,071.25 in cause
number 11,994-B; (2) $1,101.50 in cause number 18,617-B; and (3) $1,096.50 in
cause number 18,618-B.  Webb filed pro se
notices of appeal on April 26, 2010, challenging the withdrawal
notifications.  While each withdrawal notification contained the statement that
"court costs, fines and fees have been incurred as represented in the
certified Bill of Cost/Judgment attached hereto," none contained an
attachment of any kind.  Furthermore,
while the judgment entered in cause number 11,994-B does include an order that
the State recover "all costs," the judgments in cause numbers
18,617-B and 18,618-B are silent as to the assessment of costs.  
In
Harrell v. State, 286 S.W.3d 315 (Tex. 2008), the Texas Supreme Court
held that a withdrawal notification directing prison officials to withdraw
money from an inmate trust account pursuant to section 501.014(e) is a civil
matter akin to a garnishment action or an action to obtain a turnover
order.  Id. at 317-19; see also
Johnson v. Tenth
Judicial District Court of Appeals at Waco, 280 S.W.3d 866, 869 (Tex.Crim.App.
2008) (holding that orders directing withdrawal of funds from inmate trust
accounts are not a criminal matter).  In determining whether Harrell was accorded
constitutional due process in that proceeding, the Court balanced three factors
discussed in Mathews v. Eldridge, 424
U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and noted that Harrell had "already
received some measure of due process." 
Harrell, 286 S.W.3d at 320.
            The
three Eldridge factors
considered in Harrell are: (1) the private interest affected by the
official action, (2) the risk of an erroneous deprivation of such interests
through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards, and (3) the government's interest, including
the function involved and the fiscal and administrative burdens that additional
or substitute procedural requirements would entail.  Id. at 319-20 (citing Mathews,
424 U.S. at 335).  The Court found the
private interest to be affected to be easily ascertainable by reference to the
amount identified in a prior court document, which could be “stated with
exactness” as "the costs assessed when the convicting court sentenced
him."  Id. at 320.  Regarding the risk of
erroneous deprivation, the Court identified the risk as modest where withdrawal
notifications under the statute are based on an amount identified in a previous
court document.  See Tex. Gov't Code Ann.
§ 501.014(e)(1)-(6) (Vernon Supp. 2009).  The Court noted that "Harrell was . . .
notified of the costs assessed when the convicting court sentenced him"
and he was free to contest them at the time they were assessed.  Harrell, 286 S.W.3d
at 320.  However, the Court went
on to recognize there could be a greater risk of erroneous deprivation in
instances in which the amount in the withdrawal notification varied from the
amount in the underlying judgment or those instances where there were clerical
or other errors.  Id.  In
assessing the final factor, the government's interest, the Court addressed the
fiscal and administrative burdens of added or alternative procedures and
concluded that the Texas Department of Criminal Justice would face expending
more money than it would collect if it were required to conform to
"full-blown" statutory garnishment requirements.  Id.  In the Court's opinion, such a drawn-out
procedure might subvert the Legislature's goal of efficient
cost-collection.  Id.
Harrell had
been convicted of drug charges in 1997 and 2003.  In 2006, the convicting trial court signed an
order authorizing the Texas Department of Criminal Justice, Institutional
Division, to withdraw funds from his inmate trust account to pay for court
costs and fees for appointed counsel. 
Harrell was provided with copies of the withdrawal notifications.  He then moved to rescind the withdrawal
notifications alleging denial of due process. 
His motion was denied, and his direct appeal to this Court was dismissed
for want of jurisdiction on the ground that no statutory mechanism was
available for appealing a withdrawal notification.  See
Harrell v. State, Nos. 07-06-0469-CR, 07-06-0470-CR, 2007 Tex.App. LEXIS 6416, at *3 (Tex.App.--Amarillo
Aug. 13, 2007), rev'd,
286 S.W.3d 315 (Tex. 2008). 
            In reversing this Court and
rendering judgment affirming the trial court's Order Denying Harrell's Motion
to Rescind, the Supreme Court held that due process entitles an inmate to
receive notice[2]
and an opportunity to be heard, even though those requirements might be
accorded the inmate after funds are withdrawn. 
Harrell, 286 S.W.3d at 321.  It concluded that because Harrell had
received notice (a copy of the withdrawal notification) and an opportunity to be heard[3] (the motion to rescind), he had received all that due process
required.  Id.  The Court added, "[t]he Constitution
does not require pre-withdrawal notice or a comprehensive civil garnishment
proceeding."  Id.
             On the limited record before this Court, we
are unable to determine if Webb has been given all that due process
requires.  Specifically, we are unable to
determine whether Webb has been (1) provided the necessary underlying
documentation, and (2) afforded an adequate opportunity "to compare the
amounts assessed by the trial court [in the underlying criminal proceedings] to
the amount[s] withdrawn and alert the court of any alleged errors."  See id.  In that respect, we note
that the "risk of
an erroneous deprivation of [Webb's] interests through the procedures
used" in this particular case is apparent on the face of the documents
contained in the Clerk's Record.[4]  See id. at 320.
            If an appellate court is uncertain
about the intent of an order to finally dispose of all claims, it can abate the
appeal to permit clarification by the trial court.  See
Tex. R. App. P. 27.2.  Because the trial court has not entered an
appealable order either granting or denying a motion to confirm, modify,
correct, or rescind the prior withdrawal notification, we find Webb's notices
of appeal to be premature.  See
Williams v. State, Nos. 07-10-0091-CV, 07-10-0100-CV, 07-10-0101,
2010 Tex.App. LEXIS, 2998, at *8-9,
(Tex.App.--Amarillo April 22, 2010, no pet. h.).  
            Accordingly, this Court sua sponte abates
this appeal for 180 days from the date of this order to allow Webb time to take
such action as is necessary to (1) obtain the necessary documentation of the
underlying court order; (2) compare the underlying court order to the
withdrawal notification; (3) file an appropriate motion to modify, correct, or
rescind the withdrawal notification; (4) present that motion to the trial
court; (5) schedule any necessary hearing; and (6) obtain from the trial court
a final appealable order addressing that motion.  See
Tex. R. App. P. 27.2; see
also Iacono
v. Lyons, 6 S.W.3d 715 (Tex.App.--Houston [1st Dist.] 1999, no pet.) (finding appeal prematurely filed and abating and remanding
to permit the jurisdictional defect to be cured).  All appellate timetables will begin to run
from the date a final, appealable order is signed.
            It is so ordered.
                                                                                    Per
Curiam
            



 




[1]This document is not an "order" in the
traditional sense of a court order, judgment, or decree issued after notice and
hearing in either a civil or criminal proceeding.  The controlling statute, Tex. Gov't Code Ann. § 501.014(e)
(Vernon Supp. 2009), describes the process as a "notification by a
court" directing prison officials to withdraw sums from an inmate's trust
account, in accordance with a schedule of priorities set by the statute, for
the payment of "any amount the inmate is ordered to pay by order of the
court."  See id. at § 501.014(e)(1)-(6); see also Harrell v. State,
286 S.W.3d 315, 316, n.1 (Tex. 2009). 
This document is more akin to a judgment nisi.  A judgment nisi, commonly used in bond
forfeiture proceedings, is a provisional judgment entered when an accused fails
to appear for trial.  A judgment nisi
triggers the issuance of a capias and it serves as notice of the institution of a bond
forfeiture proceeding.  It is not final
or absolute, but may become final.  See
Safety Nat'l Cas. Corp. v. State, 273 S.W.3d 157, 163 (Tex.Crim.App. 2008).  Nisi means "unless," so a judgment
nisi is valid unless a party takes action causing it to be withdrawn.  Id.  Similarly, a withdrawal notification
issued pursuant to section 501.014(e), triggers a trust fund withdrawal, serves
as notice of the collection proceeding, and continues to operate unless the
inmate takes action causing the notification to be withdrawn.  Therefore, rather than refer to that document
as an order, we prefer to use the term "withdrawal notification" to
avoid confusion with an underlying court order or judgment ordering the payment
of a sum falling within at least one of the six priority categories listed in
the statute.


[2] In assessing the risk of erroneous deprivation of
property, the Supreme Court, in Harrell, considered the risk to be "modest" because notice under
the statute is "based on an amount identified in a prior court
document."  Harrell, 286 S.W.3d at 320 (emphasis
added).  The Court went on to comment
that the risk would be minimized if the trial court included a copy of the
underlying order or judgment that assessed costs when it issues a withdrawal
notification.  We wholeheartedly adopt
the Supreme Court's recommendation in this regard.  
We further note that the mere assessment of attorney
fees does not make them collectable through this process.  Under article 26.05(g) of the Texas Code of
Criminal Procedure, the trial court has authority to order reimbursement of
appointed attorney fees only if the court makes a fact-specific determination
that a defendant has financial resources that enable him to offset, in part or
in whole, the costs of the legal services provided.  See Tex.
Code Crim. Proc. Ann. art.
26.05(g) (Vernon Supp. 2009); see also Mayer v. State, No. PD-0069-09,
2010 Tex.Crim.App. LEXIS 100, at *11  (Tex.Crim.App. March 24, 2010).


[3] While the court of appeals's opinion is silent on whether a hearing was held
on Harrell's motion to rescind, Harrell, 2007 Tex.App. LEXIS 6416, at *3,
the trial court did enter a specific order denying his motion to rescind the
withdrawal notification.  We read the
Supreme Court's opinion as assuming that, by this process, Harrell was given
"an opportunity to be heard."  Harrell, 286 S.W.3d at 321.


[4] In cause number 11,994-B the withdrawal order
commands the Texas Department of Criminal Justice to withdraw $3,071.25, but
the Bill of Costs shows the amount due as being $2,908.59.  The Bill of Costs also includes $350.00 for
attorney's fees.  In cause number
18,617-B the withdrawal order was for the sum of $1,101.50, whereas the Bill of
Costs reflected an amount due of
$938.84, including $800.00 in attorney's fees. 
Finally, in cause number 18,618-B, the withdrawal order was for the sum
of $1,096.50, whereas the Bill of Costs reflected
an amount due of $1,072.63, including $800.00 in attorney's fees.


