                                                                        ACCEPTED
                                                                    06-15-00032-CR
                                                         SIXTH COURT OF APPEALS
                                                               TEXARKANA, TEXAS
                                                               6/25/2015 9:06:52 PM
                                                                   DEBBIE AUTREY
                06-15-00032-CR                                               CLERK

              No. 06-14-00032-CR

                                                   FILED IN
                                            6th COURT OF APPEALS
                                              TEXARKANA, TEXAS
        IN THE COURT OF APPEALS             6/26/2015 9:22:00 AM
        SIXTH DISTRICT OF TEXAS                 DEBBIE AUTREY
             AT TEXARKANA                           Clerk




             DEVON RAY DAVIS
               APPELLANT

                       v.

           THE STATE OF TEXAS,
                APPELLEE

On Appeal from the 196th Judicial District Court
           Of Hunt County, Texas
          Trial Court Cause 22,886
    Hon. Joe M. Leonard, Judge Presiding



            APPELLANT’S BRIEF



                            Katherine A. Ferguson (SBN 06918050)
                            Renshaw, Davis & Ferguson, L.L.P.
                            2900 Lee Street, Suite 102
                            P.O. Box 21
                            Greenville, Texas 75403-0021
                            Telephone: (903) 454-6050
                            Facsimile: (903) 454-4898
                            Email: rdflawoffice@yahoo.com

                            ORAL ARGUMENT NOT REQUESTED
               IDENTITIES OF PARTIES AND COUNSEL

Appellant:                        Devon Ray Davis

Defense Counsel at Trial:         Jeffrey Jackson
                                  1400 Preston Road, Suite 400
                                  Plano, Texas 75093


Appellant’s Attorney on Appeal:   Katherine A. Ferguson
                                  Renshaw, Davis & Ferguson, L.L.P.
                                  2900 Lee Street, Suite 102
                                  P.O. Box 21
                                  Greenville, Texas 75403-0021

Appellee’s Attorney at Trial:     Calvin Grogan
                                  Assistant District Attorney
                                  Hunt Co. District Attorney
                                  P.O. Box 441
                                  Greenville, Texas 75403-0441

Appellee’s Attorney on Appeal:    Calvin Grogan
                                  Assistant District Attorney
                                  Hunt Co. District Attorney
                                  P.O. Box 441
                                  Greenville, Texas 75403-0441

Trial Judge:                      Hon. Joe M. Leonard
                                  196th Judicial District Court
                                  P.O. Box 1097
                                  Greenville, Texas 75403-1097
                     TABLE OF CONTENTS

Identities of Parties and Counsel ………………………….……..…….ii

Table of Contents………………………………………………………iii

Index of Authorities………………………………………....................iv

Statement of the Case………………………………………..................2

Issues Presented ………………………………………………………. 3

Statement of Facts ………………………………………………….…3

Summary of the Argument …………………………………………… 7

Argument and Authorities ….…………….…………….…...................8

ISSUE NUMBER ONE ……………………………………………….8


           THE TRIAL COURT ERRED IN ENTERING
           THE JUDGMENT BECAUSE IT VARIES FROM
           THE    ORAL   PRONOUNCEMENT      OF
           SENTENCE.

ISSUE NUMBER TWO:

           THE TRIAL COURT ERRED IN
           ASSESSING ATTORNEY’S FEES AND
           UA FEES BECAUSE THE RECORD
           DOES NOT ESTABLISH APPELLANT
           HAD THE ABILITY TO PAY

PRAYER……………………………………..........................................10

CERTIFICATE OF SERVICE…..……………………………………...11

CERTIFICATE OF COMPLIANCE …………………………………11
                       INDEX OF AUTHORITIES




Cases

Armstrong v. State, 340 S.W.3d 759 (Tex. Crim. App. 2011) …………..10

Cates v. State, 402 S.W.3d 250 (Tex. Crim. App. 2013) …………… …10

Coffey v. State, 979 S.W.2d 326 (Tex. Crim. App. 1998) ………… …….8

Ex Parte Madding, 70 S.W.3d 131 (Tex. Crim. App 2002) ……………...8

Martin v. State, 405 S.W.944 (Tex. App. – Texarkana 2013, no pet.) ...10

Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010)   ……………..10




Statutes and Rules

TEX. CODE CRIM. PROC. art 26.05(g) ……………………………………9
                          No. 06-14-00032CR


                      IN THE COURT OF APPEALS
                      SIXTH DISTRICT OF TEXAS
                           AT TEXARKANA


                         DEVON RAY DAVIS
                           APPELLANT

                                   v.

                        THE STATE OF TEXAS,
                             APPELLEE

            On Appeal from the 196th Judicial District Court
                       Of Hunt County, Texas
                      Trial Court Cause 22,886
                Hon. Joe M. Leonard, Judge Presiding




                        APPELLANT’S BRIEF



TO THE HONORABLE COURT OF APPEALS:

      NOW COMES Appellant, DEVON RAY DAVIS, and respectfully

submits this brief in support of his appeal of the judgment of the 196th

Judicial District Court of Hunt County, Texas, the Honorable Joe M.

Leonard, presiding.
                     STATEMENT OF THE CASE

      The Appellant, DEVON RAY DAVIS, was charged with the offense

of robbery. (CR 10).     The indictment also included three enhancement

paragraphs, which increased the range of punishment for the offense to a

minimum of twenty-five (25) years up to ninety-nine (99) years or life in

prison.   (CR 11-12).   Appellant entered into a plea agreement wherein

Appellant was placed on ten (10) years deferred probation, a $500.00 fine,

with SAFP and violence terms, as well as court costs. (CR 18) Appellant

was placed on probation on October 10, 2005. (CR 23-32). On July 7, 2009

Appellant’s probation was amended. (CR 39) On May 5, 2010, a Motion to

Revoke Deferred Adjudication Community Supervision and Request for

Final Adjudication (“Motion to Revoke”) was filed. (CR 42) The Motion

to Revoke was again filed on August 12, 2013. (CR 64) Appellant’s

conditions of probation were further amended on November 6, 2013 and the

Motion to Revoke was dismissed without prejudice. (CR 81-82) The Hunt

County Probation Department requested a violation review hearing on

September 23, 2014 (CR 87). On October 30, 2014 the Second Motion to

Revoke Deferred Adjudication Community Supervision and Request for

Final Adjudication was filed (CR 94). Thereafter, an Amended Second

Motion to Revoke Deferred Adjudication Community Supervision and
Request for Final Adjudication (“Amended Second Motion to Revoke”) was

filed on November 20, 2014.                   (CR 120)          A hearing was held on the

Amended Second Motion to Revoke on December 16, 2014. (RR Vol. 1)

After hearing testimony, the Trial Court then revoked DEVON RAY

DAVIS’ probation and sentenced him to sixty (60) years in the Texas

Department of Corrections, Institutional Division. The written judgement

imposed $1,970.00 in attorney’s fees, an additional $367.00 in attorney’s

fees, and $122 UA fee. (CR 122) Appellant filed a pro se notice of appeal

on January 14, 2015. (CR 132) This appeal is taken therefrom.

                                    ISSUES PRESENTED

ISSUE NUMBER ONE: THE TRIAL COURT ERRED IN ENTERING
                  THE JUDGMENT BECAUSE IT VARIES FROM
                  THE    ORAL   PRONOUNCEMENT      OF
                  SENTENCE.

ISSUE NUMBER TWO: THE TRIAL COURT ERRED IN ASSESSING
                  ATTORNEY’S FEES AND UA FEES BECAUSE
                  THE RECORD DOES NOT ESTABLISH
                  APPELLANT HAD THE ABILITY TO PAY

                                 STATEMENT OF FACTS

        Devon Ray Davis (hereinafter, “Appellant”) was indicted for the

offense of robbery. (CR 1)1 He plead guilty to that offense (CR 19) as well

as pleading true to the enhancement paragraphs in the indictment. (CR 23)
1
  References to the Clerk’s Record are designated as “CR #”, references to the Reporter’s Record are
designated RR Vol. ___, page #: line #, and State and Defendant’s exhibits are designated SX and DX,
respectively)
Appellant was admonished about the range of punishment as well as the

consequences of his plea. (CR 19, 20) Appellant was placed on ten (10)

years deferred probation, subject to violence terms and the requirement to

attend and successfully complete the SAFP program. (CR 23) Appellant

was required to remain in the Hunt County Jail until such time as he could

be transferred to a SAFP facility (CR 29) Appellant was also currently on

parole for an offense at the time he was placed on probation and his parole

was revoked and he was sent to prison prior to being able to start his

probation. (RR Vol. 1, page 43, lines 13-22) Appellant’s probation was

amended twice, once in July of 2009 to permit Appellant to reside outside of

Hunt County (CR 39) and in November of 2013 (CR 82). The docket sheet

for the 196th Judicial District Court shows that Appellant was present and

represented by counsel at both hearings that resulted in amending the terms

of his probation (CR 7)

      In September of 2014, the probation department requested a violation

review hearing (CR 87) and on October 30, 2014 filed a Motion to Revoke.

(CR 94) An Amended Second Motion to Revoke was filed on November

20, 2014, which alleged ten (10) paragraphs of violations (CR 120) On

December 16, 2014, the Trial Court conducted a hearing on the Amended

Second Motion to Revoke. The State called Derrick Bercher (“Bercher”) as
its first witness. Bercher is an employee with the Hunt County Community

Supervision and Corrections Department (“HCCSCD”) who was charged

with collecting urine samples from Appellant for the purposes of drug

screens.   (RR Vol. 1, p. 8:16-19).      Bercher collected a sample from

Appellant on August 14, 2014 (RR Vol. 1, p. 10:3-9) and on September 4,

2014 (RR Vol. 1, p. 8:18-19) Bercher testified that he sealed each package

for transmittal to the drug testing facility. (RR Vol 1, p. 13:7- p. 14:8) The

State next called Steve Harris, lab director and senior analyst at One Source

Technology (“Harris”). (RR Vol. 1, p. 16:7-13). Harris testified that he

received the urine samples of Appellant sent in by the HCCSCD and tested

them for the presence of illegal drugs. (RR Vol. 1, p. 16:21-23; 17:14-24;

21:10-18) Harris testified that he prepared reports with the results of his

testing that showed Appellant had tested positive for methamphetamines on

both tests (RR Vol. 1, p.20:1; 22:10-12) (SX 1 &2).

      Candice Mead, an officer with HCCSCD, (“Mead”) testified. (RR

Vol. 1, p. 31:6-7).     Mead was the supervising probation officer for

Appellant. RR (Vo1. 1, p. 31:10-13) Mead testified that a condition of

Appellant’s probation was that he not use any illegal drugs. (RR Vol. 1, p.

32:11-15) Mead also testified that the Appellant was delinquent on paying

the fees for probation (RR Vol. 1, p. 32:16-33:20), that Appellant had not
completed all of his community service hours as required (RR Vol. 1, p.

35:14-36:12; 40:13-16) and that Appellant failed to report as required (RR

Vol. 1, p. 36:12-37:20). Mead acknowledged that she did know Appellant

had held a job and had made some payments (RR Vol. 1, 49:7), but that

Appellant had indicated to her that at times he could not afford to pay the

probation fines and fees and the HCCSCD had not established a formal

budget to show Appellant’s income and expenses. (RR Vol. 1, p. 38:8-11;

42:15-43:7)

      Detective Warren Mitchell, an investigator with the Greenville Police

Department, (“Mitchell”) testified. (RR Vol. 1, p. 55:1) Mitchell testified

that based on his training and experience, Alprazolam and Trazadone are

dangerous drugs.    (RR Vol. 1, p. 55:22-56:12)      Officer Greg Hughes

(“Hughes”) testified that he had encountered Appellant on October 21, 2014,

(RR Vol. 1, 60:3-21) Hughes testified that in the course of speaking with

Appellant, he observed a cellophane wrapper in Appellant’s pocket and that

in his training and experience, such wrappers usually contained narcotics.

(RR Vol. 1, p. 61:13-62:8) Hughes testified he removed the wrapper, looked

in it and it contained eight pills and a packet of synthetic marijuana. (RR

Vol. 1, p. 63:8-10)    Hughes also testified that the location where he

encountered the Appellant was a drug free zone. (RR Vol. 1, p. 70:3-5)
      After Hughes’ testimony, the State rested. (RR Vol. 1, p. 71:14-15).

The State abandoned paragraphs two and three in the Amended Second

Motion to Revoke. (RR Vol. 1, p. 71:14-15) The Appellant neither testified

nor called any witnesses. (RR Vol. 1, p. 71:18). The Trial Court found

paragraphs 1 and 9 of the Amended Second Motion to Revoke were not true

and found paragraphs 4, 5, 6, 7, 8 and 10 were true. (RR Vol. 1, p. 71:25-

72:2). The State recalled Mead to testify regarding the Appellant’s prior

criminal history. (RR Vol. 1, p. 72:10-25)

       The State also called Amber Richardson, another officer with the

HCCSCD. (RR Vol. 1, p. 77:2-8). After calling Richardson, the State rested

and the Appellant rested without testifying or calling any witnesses. (RR

Vol. 1, p. 79:10-11) The Trial Court considered the circumstances of the

original offense, and assessed a punishment of sixty (60) years imprisonment

in the Texas Department of Corrections, Institutional Division. (RR Vol. 1,

p. 82:15-24) A written judgment was signed that imposed the sixty (60)

year sentence, but also imposed $1,970.00 plus $367.00 attorney’s fees and

$122.00 UA fees. (CR 122)

                  SUMMARY OF THE ARGUMENT

      The Trial Court erred when it entered the written judgment because it

varied from the oral pronouncement of sentence in that it added attorney’s
fees and UA costs to the judgment. The Trial Court also erred in adding

attorney’s fees and UA costs because the record for the case is devoid of any

evidence of Appellant’s ability to pay. Therefore, this Court should reform

the judgment of the Trial Court to delete the attorney’s fees and UA costs.

                               ARGUMENT

ISSUE NUMBER ONE: THE TRIAL COURT ERRED IN ENTERING
                  THE JUDGMENT BECAUSE IT VARIES FROM
                  THE    ORAL   PRONOUNCEMENT      OF
                  SENTENCE.

      “A trial court’s pronouncement of sentence is oral, while the

judgment, including the sentence assessed, is merely the written declaration

and embodiment of that oral pronouncement.”          Ex parte Madding, 70

S.W.3d 131, 135 (Tex. Crim. App. 2002). If the oral pronouncement of

sentence and the written judgments vary, the oral pronouncement controls.

Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). Here, the

Trial Court’s oral pronouncement of sentence was:

      “Therefore I find that to be a violent crime which
      deserves sixty years imprisonment. So the judgment will
      be for sixty years to do.” (RR Vol. 1, p. 82:22-24)

      It was clear when the Trial Court orally pronounced sentence that the

Trial Court was imposing only a term of imprisonment and not additional

attorney’s fees or costs. Therefore, the written judgment varies from the

Trial Court’s oral pronouncement. See Coffey, 979 S.W.2d at 328. (The
orally pronounced sentence is the appealable event and any deviation from

the orally pronounced sentence does not supersede what was imposed in

open court). This court should, upon reviewing the oral pronouncement of

sentence by the Trial Court, reform the written judgment to make it

consistent with the Trial Court’s oral pronouncement.


ISSUE NUMBER TWO: THE TRIAL COURT ERRED IN ASSESSING
                  ATTORNEY’S FEES AND UA FEES BECAUSE
                  THE RECORD DOES NOT ESTABLISH
                  APPELLANT HAD THE ABILITY TO PAY

        Assuming arguendo that this Court finds that the addition of

attorney’s fees and costs to the written judgment when not pronounced

orally by the Trial Court isn’t an improper variance, the Trial Court still

erred in assessing attorney’s fees against Appellant.      Pursuant to. Art.

26.05(g) of the Texas Code of Criminal Procedure, a trial court may order an

indigent defendant to pay court appointed attorney fees only when the “court

determines that [the] defendant has financial resources that enable him to

offset in part or in whole the costs of the legal services provided, including

any expenses and costs.” TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West

2015)

        A defendant’s “financial resources and ability to pay are explicit

critical elements in the trial court’s determination of the propriety of
ordering reimbursement of costs” of attorney services. See Armstrong v.

State, 340 S.W. 3d 759, 765-66 (Tex. Crim. App. 2011) quoting Mayer v.

State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)

      Appellant was found to be indigent not only at the time of the original

plea in 2005 (CR 15), but again when the revocation procedures were

initiated (CR 56 & 118) There is nothing in the record to show any

determination by the Trial Court that Appellant’s indigent status had

changed and that he was able to pay his appointed attorney’s fees. Because

the record shows no support for or finding of Appellant’s ability to pay his

attorney’s fees and UA fees, the assessment was in error and should be

stricken from the written judgment. Cates v. State, 402 S.W.3d 250, 252

(Tex. Crim. App. 2013); see also Mayer, 309 S.W.3d at 556; Martin v. State,

405 S.W.3d 944, 946-47 (Tex. App. – Texarkana 2013, no pet). This Court

should reform the written judgment by deleting the assessment of attorney’s

fees and UA fees.

                                 PRAYER

      WHEREFORE, based upon the foregoing, Appellant prays the

judgment be reformed to match the sentence as orally pronounced and that

the assessment of attorney’s fees and UA fees be deleted.


                               Respectfully submitted,
                                RENSHAW,         DAVIS     &    FERGUSON,
                                L.L.P.

                                By:    /s/ Katherine A. Ferguson
                                       Katherine     A. Ferguson          (SBN
                                       06918050)

                                2900 Lee Street, Suite 102
                                P.O. Box 21
                                Greenville, Texas 75403-0021
                                Telephone: (903) 454-6050
                                Facsimile: (903) 454-4898
                                Email:       rdflawoffice@yahoo.com


                      CERTIFICATE OF SERVICE

       I certify that a true and correct copy of the Appellant’s Brief was sent
by first class United States Mail, postage prepaid, to the Honorable Noble
Walker, Hunt County District Attorney, P.O. Box 441, Greenville, Texas
75403-0441 on this the 25th day of June 2015.

       I further certify that a true and correct copy of Appellant’s Brief was
sent by first class United States mail, postage prepaid and certified mail,
return receipt requested, to DEVON RAY DAVIS #01975561 c/o James V.
Allred Unit, 2101 FM 369 North, Iowa Park, Texas 76367

                                              /s/ Katherine A. Ferguson
                                              Katherine A. Ferguson


         CERTIFICATE OF COMPLIANCE WITH RULE 9.4

      Pursuant to Texas Rule of Appellate Procedure 9.4, this certifies that
this document complies with the type volume limitations because it is
computer generated and does not exceed 15,000 words. Using the word
count feature of Microsoft Word, the undersigned certifies that this
document contains 1,601 words in the entire document, except in the
following sections: caption, identities of parties and counsel, statement
regarding oral argument, table of contents, index of authorities, statement of
the case, statement of issues presented, signature, certificate of service and
certificate of compliance. This document also complies with the typeface
requirements as it has been prepared in a proportionally spaced typeface
using Microsoft Word in 14-point Times New Roman.

                                             /s/ Katherine A. Ferguson
                                             Katherine A. Ferguson
