                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-12-00269-CR

JAMES CLAYTON CANTRELL,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee


                          From the 19th District Court
                           McLennan County, Texas
                          Trial Court No. 2011-637-C1


                          MEMORANDUM OPINION

      In eleven issues, appellant, James Clayton Cantrell, complains about the

revocation of his community supervision and certain aspects of the trial court’s

judgment. We affirm as modified.

                                    I. BACKGROUND

      In March 2011, appellant was charged by indictment with theft of more than

$1,500 but less than $20,000, a state-jail felony. See TEX. PENAL CODE ANN. § 31.03(a),

(e)(4) (West Supp. 2013). Thereafter, appellant filed a request for a court-appointed

attorney, stating that, among other things, he makes $1,200 per month working at
Sanderson Farms and that he has $1,042 in monthly expenses.                 The trial court

determined that appellant was indigent and appointed him counsel.

        Subsequently, appellant pleaded guilty to the charged offense. The trial court

deferred an adjudication of guilt and placed appellant on community supervision for

five years. Additionally, the trial court assessed a $1,000 fine and $1,915 in restitution.

        On May 15, 2012, the State filed a motion to adjudicate guilt, alleging that

appellant violated ten conditions of his community supervision. In particular, the State

asserted that appellant failed to attend two Alcoholics/Narcotics Anonymous meetings,

committed the offense of engaging in criminal activity/burglary of a building,

committed the offense of theft of services, and violated seven financial conditions of his

community supervision.

        On July 16, 2012, the trial court conducted a hearing on the State’s motion to

adjudicate. At the hearing, the State abandoned the criminal-activity/burglary-of-a-

building and theft-of-services allegations. At the conclusion of the hearing, the trial

court revoked appellant’s community supervision, found appellant guilty of the

charged offense, and sentenced him to two years’ confinement in the State-Jail Division

of the Texas Department of Criminal Justice. The trial court also assessed a $1,000 fine,

and though not orally pronounced at the hearing, the judgment assessed $1,915 in

restitution.        The trial court certified appellant’s right of appeal, and this appeal

followed.

                      II. REVOCATION OF APPELLANT’S COMMUNITY SUPERVISION

        In his first five issues, appellant complains that the trial court abused its


Cantrell v. State                                                                      Page 2
discretion in revoking his community supervision because the evidence was legally

insufficient.       In particular, appellant contends that the decision to revoke his

community supervision and sentence him to prison amounted to imprisonment for a

debt and, thus, violated his constitutional rights. We disagree.

A.      Applicable Law

        We review an order revoking community supervision under an abuse-of-

discretion standard. See Rickels v. State, 202 S.W.3d 759, 763-64 (Tex. Crim. App. 2006).

To justify revocation, the State must prove by a preponderance of the evidence that the

defendant violated the terms and conditions of his community supervision. See Hacker

v. State, 389 S.W.3d 860, 864-65 (Tex. Crim. App. 2013). “In the probation-revocation

context, ‘a preponderance of the evidence’ means ‘that greater weight of the credible

evidence which would create a reasonable belief that the defendant has violated a

condition of his probation.’” Id. at 865 (quoting Rickels, 202 S.W.3d at 764). The trial

court is the sole judge of credibility of the witnesses and the weight to be given their

testimony; thus, we review the evidence in the light most favorable to the trial court’s

ruling. See id.

        If the State fails to produce a preponderance of the evidence to support a

violation of the terms of appellant’s community supervision, the trial court abuses its

discretion.     See Cardona v. State, 665 S.W.2d 492, 493-94 (Tex. Crim. App. 1984).

However, proof by a preponderance of any one alleged violation is sufficient to affirm

an order revoking community supervision and adjudicating guilt. See Smith v. State, 286

S.W.3d 333, 342 (Tex. Crim. App. 2009) (“We have long held that ‘one sufficient ground


Cantrell v. State                                                                  Page 3
for revocation would support the trial court’s order revoking’ community supervision”

(quoting Jones v. State, 571 S.W.2d 191, 193-94 (Tex. Crim. App. [Panel Op.] 1978))); Clay

v. State, 361 S.W.3d 762, 765 (Tex. App.—Fort Worth 2012, no pet.); see also Nathan v.

State, No. 10-12-00432-CR, 2013 Tex. App. LEXIS 7511, at *3 (Tex. App.—Waco June 20,

2013, pet. ref’d) (mem. op., not designated for publication).

B.      Discussion

        Here, the trial court revoked appellant’s community supervision based on his

failure to attend two Alcoholics/Narcotics Anonymous meetings and his failure to pay

various fees and fines. Though he does not specifically challenge the sufficiency of the

evidence supporting the State’s allegation pertaining to the Alcoholics/Narcotics

Anonymous meetings, appellant asserts that the trial court revoked his community

supervision based solely on financial considerations because the trial court made the

following statement: “If I thought it was just a case of you missing some AA meetings, I

might could overlook that.” Appellant interprets this statement as an indication that

the trial court would not have revoked his community supervision based solely on his

failure to attend the aforementioned meetings.

        However, a review of the trial court’s statements in context does not support

appellant’s interpretation. Specifically, the trial court stated:

        THE COURT:           All right, Mr. Cantrell, the Court having heard the
                             testimony and evidence, I know from long experience
                             with the probation department they don’t just filed a
                             Motion to Adjudicate or a Motion to Revoke at the
                             drop of a hat. You know, they bend over backwards
                             trying to work with people. . . . You get chance after
                             chance after chance. Deferred adjudication is a
                             privilege. Probation is a privilege, not a right. And

Cantrell v. State                                                                     Page 4
                                  it’s your duty to comply with these terms and
                                  conditions.

                                         Now the financial stuff, I don’t think they ever
                                  come in here and ask for revocation on financial
                                  issues unless there is something else involved. But
                                  you had a job. It was your duty to take care of these
                                  obligations. And I think if my liberty were at stake, I
                                  would make sure I paid these bills before I paid
                                  anything else. You might get evicted from a place,
                                  but you know, the landlord can’t throw you in jail; I
                                  can.

                                         If I thought it was just a case of you missing
                                  some AA meetings, I might could overlook that. But I
                                  know and you know that you went further than that.
                                  Therefore, I find Allegations 1 and 4 through 10 to be
                                  true. I revoke your probation, find you guilty of the
                                  underlying offense.

At no point did the trial court definitively state that it would not revoke appellant’s

community supervision based solely on appellant’s failure to attend the aforementioned

meetings. The trial court stated that it “might” overlook this allegation if it had been

the only violation alleged by the State, which was not the case here. See MERRIAM

WEBSTER’S COLLEGIATE DICTIONARY (10th ed.) 737 (defining “might” as “possibility in

the past . . . or a present condition contrary to fact . . . or less probability or possibility

than may . . . or as a polite alternative to may . . .” (emphasis in original)). Accordingly,

we disagree with appellant’s contention that the trial court “would not have revoked

Cantrell for allegation 1.”

        In any event, during the hearing, Monica Harper, appellant’s community

supervision         supervisor,    testified   that   appellant   was   required    to      attend

Alcoholics/Narcotics Anonymous meetings two times per week from October 2011 to


Cantrell v. State                                                                           Page 5
July 16, 2012, the time of the hearing. Harper recounted that appellant did not attend

these meetings on a regular basis. Harper stated that appellant submitted four sheets at

two different times and that the sheets documented that appellant attended meetings

only fifteen times.    Furthermore, Harper believed that the sheets that appellant

submitted were suspicious and possibly forged because they were not signed by

someone who would have normally chaired the meetings. Later in her testimony,

Harper stated that appellant forged the attendance sheets associated with these

meetings and that, even without the forgery, appellant did not meet this condition of

his community supervision.      On cross-examination, Harper acknowledged that the

organizations conducting the meetings do not keep records of those who attend.

        Viewing the evidence in the light most favorable to the trial court’s ruling, we

conclude that the record contains sufficient evidence to demonstrate by a

preponderance of the evidence that appellant violated his community supervision by

failing to attend Alcoholics/Narcotics Anonymous meetings. See Hacker, 389 S.W.3d at

864-65. And because proof of a single violation of the terms of community supervision

is sufficient to support revocation, we cannot say that the trial court abused its

discretion in revoking appellant’s community supervision. See Smith, 286 S.W.3d at 342;

Rickels, 202 S.W.3d at 763-64; Clay, 361 S.W.3d at 765; Joseph v. State, 3 S.W.3d 627, 640

(Tex. App.—Houston [14th Dist.] 1999, no pet.) (“Thus, in order to prevail, appellant

must successfully challenge all the findings that support the revocation order.”); see also

Nathan, 2013 Tex. App. LEXIS 7511, at *3. Accordingly, we need not address appellant’s

contentions regarding the financial conditions of his community supervision. See TEX.


Cantrell v. State                                                                    Page 6
R. APP. P. 47.1; Smith, 286 S.W.3d at 342; Clay, 361 S.W.3d at 765; see also Nathan, 2013

Tex. App. LEXIS 7511, at *3. We overrule appellant’s first five issues.

                                      III. RESTITUTION

        In his sixth issue, appellant argues that the trial court erred in assessing

restitution in the written judgment because the trial court did not orally pronounce

restitution as part of appellant’s sentence after adjudicating his guilt.     The State

concedes that there was no oral pronouncement of restitution at the revocation hearing,

which was necessary for the order of restitution to be effective. See Alexander v. State,

301 S.W.3d 361, 364 (Tex. App.—Fort Worth 2009, no pet.) (“Because the requirement

that Alexander pay $10,311.25 in restitution is punishment and part of his sentence in

the judgment adjudicating his guilt, it must have been included in the trial court’s oral

pronouncement of sentence to be properly included in the written judgment.” (citing

Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004) (stating that, when there is

conflict between the oral pronouncement of sentence and the written memorialization

of that sentence, the oral pronouncement controls); Abron v. State, 997 S.W.2d 281, 282

(Tex. App.—Dallas 1998, pet. ref’d))). Accordingly, we sustain appellant’s sixth issue

and modify the trial court’s written judgment to delete the restitution award of $1,915.

See id.; see also Webb v. State, No. 09-13-00500-CR, 2014 Tex. App. LEXIS 3819, at **2-3

(Tex. App.—Beaumont Apr. 9, 2014, no pet. h.) (mem. op., not designated for

publication) (modifying the trial court’s judgment to delete a restitution award that was

not orally pronounced but included in the written judgment).




Cantrell v. State                                                                  Page 7
                                    IV. THE BILL OF COSTS

        In his eighth issue, appellant asserts that the trial court erred in assessing court

costs because the bill of costs was not signed. Here, the bill of costs was incorporated

into the trial court’s judgment with the amount of costs to be paid written on the face of

the judgment itself. A review of the bill of costs shows that, with the exception of court-

appointed attorney’s fees and the assessed $1,000 fine, all of the assessed costs are

statutorily mandated. Though not available at the time appellant’s brief was filed, the

Court of Criminal Appeals has recently held that a bill of costs need not be included in

the record to support the assessment of mandatory or statutorily-authorized court costs.

Johnson v. State, No. PD-0193-13, ___ S.W.3d ___, 2014 Tex. Crim. App. LEXIS 240, at

**25-26 (Tex. Crim. App. Feb. 26, 2014); see Cardenas v. State, No. PD-0733-13, ___ S.W.3d

___, 2014 Tex. Crim. App. LEXIS 236, at *3 (Tex. Crim. App. Feb. 26, 2014). Thus, it

follows that if a bill of costs need not be included in the record to support statutorily-

authorized court costs, then an unsigned bill of costs delineating statutorily-authorized

court costs is acceptable. See Johnson, 2014 Tex. Crim. App. LEXIS 240, at **25-26;

Cardenas, 2014 Tex. Crim. App. LEXIS 236, at *3. In any event, appellant does not cite

relevant authority supporting his contention that the bill of costs in this case has no

legal effect because it is unsigned. Accordingly, we overrule appellant’s eighth issue.

                            V. THE ASSESSMENT OF COURT COSTS

        In his seventh issue, appellant complains that the assessments for the “indigent

defense fund” and the “time payment fee” are not compensatory and, thus, cannot be

imposed as court costs. Appellant characterizes these fees are unauthorized penalties.


Cantrell v. State                                                                     Page 8
        Regarding a somewhat similar issue, the Court of Criminal Appeals has stated

that court costs “need neither be orally pronounced nor incorporated by reference in the

judgment to be effective.” Armstrong v. State, 340 S.W.3d 759, 766-67 (Tex. Crim. App.

2011) (citing Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009)). “This is because

court costs do not ‘alter the range of punishment to which the defendant is subject, or

the number of years assessed’ and, thus, are not part of the sentence.” Id. at 767 (citing

Weir, 278 S.W.3d at 367). “Instead, court costs are compensatory in nature; that is, they

are ‘a nonpunitive recoupment of the costs of judicial resources expended in connection

with the trial of the case.’” Id. (citing Weir, 278 S.W.3d at 366). “In contrast, fines

generally must be orally pronounced in the defendant’s presence.”               Id. (citations

omitted).     “Fines are punitive, and they are intended to be part of the convicted

defendant’s sentence as they are imposed pursuant to Chapter 12 of the Texas Penal

Code, which is entitled ‘Punishments.’” Id. (citing Weir, 278 S.W.3d at 366).

        In the bill of costs, which was incorporated into the judgment, appellant was

assessed $2 for the “IDCC INDIGENT DEFENSE FEE” and $25 for the “TPMT TIME

PMT” fee. Both of these fees are statutorily mandated. See TEX. LOC. GOV’T CODE ANN.

§ 133.107(a) (West Supp. 2013) (“A person convicted of any offense, other than an

offense relating to a pedestrian or the parking of a motor vehicle, shall pay as a court

cost, in addition to other costs, a fee of $2 to be used to fund indigent defense

representation through the fair defense account established under Section 79.031,

Government Code.”); see also id. § 133.103(a) (West Supp. 2013) (requiring a person

convicted of a felony or misdemeanor to pay a fee of $25 if the person pays any part of a


Cantrell v. State                                                                      Page 9
fine, court costs, or restitution on or after the 31st day after the date on which a

judgment is entered assessing the fine, court costs, or restitution).                     Other than

conclusory statements, appellant does not cite relevant authority to support his

contention that these fees are penalties, rather than compensatory in nature.1

        Because “[l]egislatively-mandated fees and costs may be withdrawn from an

inmate’s account without regard to his ability to pay, unless otherwise prohibited by

statute, and do not need to be in the oral pronouncement of sentence or in the written

judgment in order to be imposed on a convicted defendant,” we do not believe that the

complained-of fees are punitive; nor were they required to be orally pronounced to be

effective. See Martin v. State, 405 S.W.3d 944, 947-48 (Tex. App.—Texarkana 2013, no

pet.) (citing Armstrong, 340 S.W.3d at 766-67; Owen v. State, 352 S.W.3d 542, 546 (Tex.

App.—Amarillo 2011, no pet.)). Accordingly, we overrule appellant’s seventh issue.

                    VI. ASSESSMENT OF COURT-APPOINTED ATTORNEY’S FEES

        In his ninth and tenth issues, appellant contends that the trial court erred in

assessing court-appointed attorney’s fees as court costs because he is indigent and has

remained so throughout these proceedings. The State concedes that the assessment of

court-appointed attorney’s fees should be deleted from the judgment. See TEX. CODE

CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2013) (“A defendant who is determined by

the court to be indigent is presumed to remain indigent for the remainder of the

proceedings in the case unless a material change in the defendant’s financial


        1 Interestingly, appellant was determined to be indigent and, because of his indigence, was
appointed counsel in the trial court and on appeal. Accordingly, we are not persuaded that appellant has
not derived a benefit from the indigent-defense fee. Given this and the fact that appellant has not cited
relevant authority supporting his contention, we cannot say that this fee is a penalty, rather than
compensatory in nature.
Cantrell v. State                                                                                Page 10
circumstances occurs.”); see also Mayer v. State, No. 10-10-00302-CR, 2011 Tex. App.

LEXIS 1369, at *6 (Tex. App.—Waco Feb. 23, 2011, pet. ref’d) (mem. op., not designated

for publication). Accordingly, we sustain appellant’s ninth and tenth issues and modify

the judgment to reduce court costs by $400, which corresponds with the amount

imposed for court-appointed attorney’s fees.

                                       VII.    BACK-TIME CREDIT

        In his eleventh issue, appellant argues that the trial court’s judgment did not give

him credit for all of his county-jail back time. In making this argument, appellant

references the judgment adjudicating guilt, which credited appellant with time served

from: (1) February 22, 2010 to March 10, 2010; (2) March 10, 2010 to March 24, 2010; (3)

August 1, 2011 to August 4, 2011; and (4) May 21, 2012 to July 16, 2012. Appellant also

notes that the trial court stated at the hearing on the State’s motion to revoke that it

would give appellant “credit for time served.”                 Furthermore, in showing that the

calculation of back-time credit is erroneous, appellant references the booking record of

the McLennan County Sheriff’s Department, which apparently credited appellant with

213 days of back time.

        However, the booking record of the McLennan County Sheriff’s Department is

included in appellant’s appendix and has not been formally included in the record.2 See

Rasberry v. State, 535 S.W.2d 871, 873 (Tex. Crim. App. 1976) (noting that documents

        2 On November 27, 2012, appellant filed, in this Court, a motion to supplement the record with,
among other things, the booking record of the McLennan County Sheriff’s Department; however, this
motion was denied. See Ex parte Florence, 319 S.W.3d 695, 696 (Tex. Crim. App. 2010) (per curiam) (stating
that pre-sentence time-credit claims typically must be raised by a judgment nunc pro tunc, and if the trial
court denies the motion or fails to respond, the proper avenue for relief is by petition for writ of
mandamus or possibly a post-conviction writ of habeas corpus under article 11.07 of the Texas Code of
Criminal Procedure); see also McCullough v. State, No. 05-13-00667-CR, 2013 Tex. App. LEXIS 6475, at **1-2
(Tex. App.—Dallas May 16, 2013, no pet.) (mem. op., not designated for publication).
Cantrell v. State                                                                                  Page 11
attached to a brief but omitted from the appellate record cannot be considered);

Witkovsky v. State, 320 S.W.3d 425, 428 (Tex. App.—Fort Worth 2010, pet. ref’d, untimely

filed) (striking documents from an appendix to a brief because they were not also

included in the appellate record); see also Williams v. State, No. 07-12-00285-CR, 2013 Tex.

App. LEXIS 11471, at **2-3 (Tex. App.—Amarillo Sept. 5, 2013, no pet.) (mem. op., not

designated for publication).     Without an adequate record, we cannot modify the

judgment. See McGregor v. State, 145 S.W.3d 820, 822 n.1 (Tex. App.—Dallas 2004, no

pet.) (“We must reform a judgment to correct what the trial court could not have

corrected by a judgment nunc pro tunc, where the evidence necessary to correct the

judgment appears in the record.”); see also Ortiz v. State, 144 S.W.3d 225, 229-30 (Tex.

App.—Houston [14th Dist.] 2004, pet. ref’d) (noting that, while district and appellate

courts have a duty to ensure delivery of the record, the party seeking review still has

the duty to develop the record demonstrating error). Because we do not have an

adequate record with which to determine any additional back-time credit, we overrule

appellant’s eleventh issue.

                                     VIII. CONCLUSION

        Based on the foregoing, we modify the trial court’s judgment to delete the

restitution finding and the $400 assessment for appellant’s court-appointed attorney’s

fees. We affirm the judgment in all other respects.



                                                 AL SCOGGINS
                                                 Justice



Cantrell v. State                                                                    Page 12
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed as modified
Opinion delivered and filed May 15, 2014
Do not publish
[CR25]




Cantrell v. State                          Page 13
