                                                                                 ACCEPTED
                                                                            03-14-00616-CR
                                                                                   3888712
                                                                  THIRD COURT OF APPEALS
                                                                             AUSTIN, TEXAS
                                                                       1/24/2015 3:34:55 PM
                                                                          JEFFREY D. KYLE
                                                                                     CLERK
                   CAUSE NO. 03-14-00616-CR

       _________________________________________________
                                                      FILED IN
                                           3rd COURT OF APPEALS
                                                AUSTIN, TEXAS
                 IN THE COURT OF APPEALS   1/26/2015 12:00:00 AM
             FOR THE THIRD DISTRICT OF TEXAS JEFFREY D. KYLE
                      AUSTIN DIVISION               Clerk
       _________________________________________________


ALEXIS MARIE IRELAND         §
                             §
v.                           §
                             §
STATE OF TEXAS               §

        _______________________________________________

                     APPELLANT’S BRIEF
        _______________________________________________




                             Justin Bradford Smith
                             Texas Bar No. 24072348
                             Harrell, Stoebner, & Russell, P.C.
                             2106 Bird Creek Drive
                             Temple, Texas 76502
                             Phone: (254) 771-1855
                             FAX: (254) 771-2082
                             Email: justin@templelawoffice.com

                             ATTORNEY FOR APPELLANT


ORAL ARGUMENT NOT REQUESTED


                                 1
	  
                 IDENTITY OF PARTIES AND COUNSEL

Appellant
     Alexis Marie Ireland

Appellant’s Counsel
     Justin Bradford Smith
     Harrell, Stoebner, & Russell, P.C.
     2106 Bird Creek Drive
     Temple, Texas 76502
     Phone: (254) 771-1855
     FAX: (254) 771-2082
     Email: justin@templelawoffice.com

Appellant’s Trial Counsel
     Jack Holmes
     1610 South 31st Street, Suite 102, PMB 235
     Temple, TX 76504

Appellee
     State of Texas

Appellee’s Trial Counsel
     Leslie McWilliams
     Bell County District Attorney
     P.O. Box 540
     Belton, Texas 76513
     Telephone: (254) 933-5215
     Fax: (254) 933-5238

Appellee’s Appellate Counsel
     Bob Odom
     Bell County District Attorney’s Office
     Email: DistrictAttorney@co.bell.tx.us




                                       2
	  
                        TABLE OF CONTENTS

Identity of Parties and Counsel…………………………..………………………... 2

Table of Contents……………………………………….………………………..3-4

Index of Authorities…………………………………….………………………..5-6

Statement of the Case……………………………………….……………………...7

Issues Presented….……………..………....…………………….………………..7-8

       ISSUE ONE:   The judgment must be vacated as to restitution and a new
                    hearing ordered on the amount of restitution because the
                    evidence is insufficient to support a factual basis for the
                    full amount of restitution ordered in the written judgment,
                    and the record does not otherwise conclusively establish
                    the amount of restitution owed.……………....…..……….7

       ISSUE TWO:   The judgment must be vacated as to court costs and a new
                    hearing ordered as to the amount owed because the record
                    suggests some payments were made towards court costs,
                    but the precise amount is unclear, and one cost appears
                    without a statutory basis……………………...................7-8

Statement of Facts…………………………………..…………………………..8-11

Summary of the Argument……………………………..……………………...11-14

       ISSUE ONE:   The judgment must be vacated as to restitution and a new
                    hearing ordered on the amount of restitution because the
                    evidence is insufficient to support a factual basis for the
                    full amount of restitution ordered in the written judgment,
                    and the record does not otherwise conclusively establish
                    the amount of restitution owed.……………....…..……...11

Argument…………………………………………………………………........14-24

Standard of Review and Applicable Law…...…………………………………14-16


                                     3
	  
Application………………………………………………..…………………...17-24

Conclusion………………………………………………………………………...24

Summary of the Argument…………………………………………………….24-25

       ISSUE TWO:   The judgment must be vacated as to court costs and a new
                    hearing ordered as to the amount owed because the record
                    suggests some payments were made towards court costs,
                    but the precise amount is unclear, and one cost appears
                    without a statutory basis……………………....................24

Argument………………………………………………………………………25-29

Standard of Review and Applicable Law…...…………………………………25-26

Application…………………………………………………………………….26-29

Conclusion………………………………………………………………………...29

Prayer…………………..…………………………………………………….........29

Certificate of Compliance………………………………………………………....30

Certificate of Service……………………………………………………………...31




                                    4
	  
                        INDEX OF AUTHORITIES

Texas Court of Criminal Appeals:

Burt v. State, 396 S.W.3d 574
      (Tex. Crim. App. 2013)……………………………………………….16, n. 1

Burt v. State, 445 S.W.3d 752
      (Tex. Crim. App. 2014)……………………………..………………15-18, 23

Brewer v. State, No. 1270-03, 2004 WL 3093224
     (Tex. Crim. App. May 19, 2004) (unpublished)………………………19, n.2

Campbell v. State, 5 S.W.3d 693
    (Tex. Crim. App. 1999)…………………………………………………….16

Cartwright v. State, 605 S.W.2d 287
     (Tex. Crim. App. 1980)………………………………………………...14, 16

Cole v. State, 578 S.W.2d 127
      (Tex. Crim. App. 1979)…………………………………………………….22

Davis v. State, 368 S.W.2d 368
      (Tex. Crim. App. 1998)………………………………………………...14, 17

Ex parte Cavazos, 203 S.W.3d 333
      (Tex. Crim. App. 2006) (orig. proceeding)………………….................15, 17

Gonzalez v. State, 117 S.W.3d 831
     (Tex. Crim. App. 2003)…………………………………………………….14

Johnson v. State, 423 S.W.3d 385
     (Tex. Crim. App. 2014)…………………………………………….25-27 n. 4

Moff v. State, 131 S.W.3d 485
      (Tex. Crim. App. 2004)…………………………………………………….16

Taylor v. State, 131 S.W.3d 497
      (Tex. Crim. App. 2004)…………………………………………..…14-15, 17


                                      5
	  
Weir v. State, 278 S.W.3d 364
      (Tex. Crim. App. 2006)………………………………………………...15, 17

Texas Courts of Appeals:

Alexander v. State, 301 S.W.3d 361
      (Tex. App.—Fort Worth 2009, no pet.)………………………………..15, 17

O’Neal v. State, 426 S.W.3d 242
     (Tex. App.—Texarkana 2013, no pet.)…………………………………….14

Rusk v. State, 440 S.W.3d 694
      (Tex. App.—Texarkana 2013, no pet.)…………………………………22-23

Sauceda v. State, 309 S.W.3d 767
     (Tex. App.—Amarillo 2010, pet. ref’d)………………………………..15, 17

Tschirhart v. Tschirhart, 876 S.W.2d 507
      (Tex. App.—Austin 1994, no writ)………………………………..20, 27 n. 4

Statutes/Rules:

Tex. Code Crim. Proc. Ann. 42.03, Section 1(a)………………………………….15

Tex. Code Crim. Proc. Ann. art. 42.12, Section 9(a)……………………………..19

Tex. Code Crim. Proc. Ann. art. 42.12, Section 9(j)….……………………...19 n. 2

Tex. Code Crim. Proc. Ann. art. 42.22……………………………………………28

Tex. Gov’t Code Section 103.024………………………………………………..28




                                   6
	  
                         STATEMENT OF THE CASE

Nature of the Case:      This is an appeal from the sentence imposed following an
                         adjudication of guilt and revocation of community
                         supervision. (VII R.R. at 6-7). In 2012, the trial court
                         placed Appellant on deferred adjudication for five years
                         for forgery by passing. (I C.R. at 28) (VI R.R. at 4). The
                         State filed multiple motions to adjudicate, with the most
                         recent motion being filed in 2014. (I C.R. at 33-35;56-
                         58; 71-73).

Judge/Court:             Judge John Gauntt, 27th District Court, Bell County.

Pleas:                   Appellant pled true and the trial court held a sentencing
                         hearing. (VI R.R. at 8) (VII R.R. at 1-9) (I C.R. at 82-
                         84).

Trial Court Disposition: Without hearing evidence, the trial court adjudicated
                         Appellant guilty and sentenced her to two years in
                         the state jail. (VII R.R. at 4; 7). The written judgment
                         imposes $1,922.57 in restitution and $572.00 in court
                         costs. (I C.R. at 92-93).

                             ISSUES PRESENTED

         ISSUE ONE: The judgment must be vacated as to restitution and a new

hearing ordered on the amount of restitution because the evidence is insufficient to

support a factual basis for the full amount of restitution ordered in the written

judgment, and the record does not otherwise conclusively establish the amount of

restitution owed.

         ISSUE TWO: The judgment must be vacated as to court costs and a new

hearing ordered as to the amount owed because the record suggests some payments



                                         7
	  
were made towards court costs, but the precise amount is unclear, and one cost

appears without a statutory basis.

                            STATEMENT OF FACTS

       After being charged by information with forgery by passing (I C.R. at 5-6),

Appellant pled guilty and received five years deferred adjudication. (II R.R. at 6;

III R.R. at 5-8); (I C.R. at 14-18; 28-31). The court’s January 24, 2012 order

deferring adjudication orders restitution in the amount of $1,922.57, (I C.R. at 30),

which is the amount the court orally pronounced, (III R.R. at 6), payable in

increments of $35.00 per month, and court costs in the amount of $246.00, payable

in increments of $10.00 per month. (I C.R. at 30). The court also subjected

Appellant to the typical conditions of community supervision, including

prohibiting her from committing further offenses, ordering her to pay fees and

restitution, ordering her to complete community services hours, and so forth. (I

C.R. at 29-31). Appellant waived her right to appeal this order. (I C.R. at 25-27).

       On May 17, 2012, the State filed the first of a series of motions to

adjudicate.   (I C.R. at 33-35). This motion alleged, among other things, that

Appellant failed to pay the restitution, and was “delinquent $105.00”, and that

Appellant failed to pay court costs, and was “delinquent $30.00”. (I C.R. at 33).

At the hearing on this motion, Appellant pled true, (IV R.R. at 7) (VIII R.R. at




                                          8
	  
Second SX-1 “Judicial Stipulation”)), and the court accepted her plea, but declined

to revoke her probation and instead added some jail time. (IV R.R. at 7; 15).

          On February 12, 2013, the State filed its second motion to adjudicate and

alleged, among other things, that Appellant had failed to pay restitution and was

“delinquent $45.00”, and was delinquent $10.00 in court costs. (I C.R. at 56).

This time, Appellant pled “not true” (V R.R. at 7), and after hearing evidence the

court again declined to revoke Appellant’s probation, but instead continued her on

the “terms and conditions of [her] probation as they are currently set out.” (V R.R.

at 34).

          Among the evidence the court heard was testimony from the probation

officer that Appellant “would have to continue making payments, and she would

have to get current since she was behind previously.” (V R.R. at 12). Appellant

was “behind on all kinds of payments”, (V R.R. at 15), and the probation officer

believed Appellant was “a little over $1,000 behind.”       (V R.R. at 16).     The

probation officer indicated this delinquency included: “Crime Stoppers, life skills,

restitution, probation fees, court costs, PSI fees, substance abuse fees, substance

abuse test fees.” (V R.R. at 16). Appellant’s boyfriend and her mother made a

$100 payment toward her arrearages. (V R.R. at 21). The probation officer

affirmed this $100 payment went towards the entire $1,000. (V R.R. at 22).




                                          9
	  
       On February 19, 2014, the State filed its third motion to adjudicate, which

led to the court revoking Appellant’s probation and this appeal. (I C.R. at 71-73;

85-87; 92-94) (VII R.R. at 7). Among other things, this motion alleged that

Appellant failed to pay her restitution and was “delinquent $630.00”, and that

Appellant was “delinquent $140.00” in payments towards court costs. (I C.R. at

85). The principal basis of this motion, however, was that Appellant was accused

of committing the new offense of burglary of a building. (I C.R. at 85; 87).

       Appellant again pled true to the allegations (VI R.R. at 4-8) and signed an

“Adjudication/Revocation Waivers, Agreements, Judicial Confession”. (I C.R. at

82-84) (VIII R.R. at Third SX-1 (“Judicial Stipulation”)). The court found the

evidence sufficient to find the allegations true, but withheld the finding to have a

sentencing hearing. (VI R.R. at 9).

       At the sentencing hearing, the State presented no evidence, “just argument”.

(VII R.R. at 4-5). The court took judicial notice of its file, and at Appellant’s

request, read the presentencing investigation report. (VII R.R. at 4). After brief

arguments, (VII R.R. at 5-6), the court adjudicated Appellant guilty and revoked

her probation. (VII R.R. at 7).

       The court then sentenced Appellant to two years in the state jail, stated she

would have to pay court costs “in the amount of $5722 [sic]”, and stated she “will




                                         10
	  
still owe whatever restitution remains unpaid of the original $19,232.57 [sic] that

was previously ordered.” (VII R.R. at 7).

       The court’s written judgment orders restitution in the amount of $1,922.57

and court costs in the amount of $572.00. (I C.R. at 92-94). The clerk’s record

contains a bill of costs showing various amounts owed, including the full amount

of restitution and a “State Elect Filing Fee—Crimi”. (I C.R. at 95-96). This appeal

followed.

                      SUMMARY OF THE ARGUMENT

       ISSUE ONE: The judgment must be vacated as to restitution and a new

hearing ordered on the amount of restitution because the evidence is insufficient to

support a factual basis for the full amount of restitution ordered in the written

judgment, and the record does not otherwise conclusively establish the amount of

restitution owed.

       This is a case in which the trial court ordered restitution through oral

pronouncement but failed to state the amount, so the restitution cannot be deleted,

but the factual basis to support the amount of restitution ordered is lacking, so a

new restitution hearing should occur.

       A defendant on deferred adjudication is not sentenced unless and until he is

adjudicated guilty. Once adjudicated guilty, he is sentenced, but the original order

deferring adjudication is set aside, including any fines or restitution ordered


                                         11
	  
therein. Sentence must be orally pronounced to be valid: when there is a variance

between the oral pronouncement of sentence and the written judgment, the oral

pronouncement controls. Restitution is part of the sentence and thus must be orally

pronounced. When the trial court orally pronounces restitution, but fails to state

the amount, the remedy is to vacate the restitution order and remand for a new

hearing on the amount of restitution if the record does not conclusively establish

the amount of restitution ordered. Here, the trial court made restitution part of its

oral pronouncement, but did not state an amount. Later, the written judgment

contained a specific amount. The question is whether the evidence provides a

factual basis to support the full amount of restitution.

       The trial court received no evidence before orally pronouncing restitution,

but simply read a presentence investigation report.           This report would not

ordinarily contain the amount of restitution owed, but rather the amount of

restitution necessary to adequately compensate the victim—that is, the original, not

the current, amount of restitution owed. Moreover, the trial judge’s own comment

when including restitution in his oral pronouncement shows he did not know the

amount of restitution that should be ordered.

       Although the certified bill of costs states that the full amount of restitution is

owed, this bill of costs was not prepared until after oral pronouncement of sentence




                                           12
	  
and after the written judgment was signed. There is reason to think the bill of costs

is inaccurate.

       Prior to the instant motion to adjudicate, the State’s previous motions stated

differing amounts in which Appellant was delinquent in restitution that cannot be

squared with the amount which should have been owed if no payments were made

at all, much less at $35.00 per month. In fact, the second motion, filed roughly

nine months after the first, alleges Appellant was less delinquent in restitution fees

than she was the first time—suggesting some payments were made. Appellant

pled true to the first motion, but not the second.

       At the hearing on the second motion, it is undisputed that $100 was paid

toward arrearages totaling about $1,000. These arrearages included money owed

for restitution, so there is at least some evidence suggesting there may have been

some money paid towards restitution fees.

       Appellant pled true to the third motion, which alleged a delinquency that

necessarily implies some payments were made.

       Given the state of the record, the factual basis to support the amount of

restitution ordered in the trial court’s judgment is lacking, and the actual amount

owed is not conclusively established. Because it is undisputed, however, that some

restitution is owed, and because restitution was orally pronounced, this Court

should vacate the restitution order and remand for a new restitution hearing.


                                          13
	  
       Alternatively, the Court should modify the judgment to reflect the amount of

restitution Appellant would owe based on her plea of true to the third motion to

adjudicate.

                                  ARGUMENT

Standard of Review and Applicable Law

       1. The Standard of Review is Abuse of Discretion

       The appellate court reviews challenges to restitution orders under an abuse

of discretion standard.   O’Neal v. State, 426 S.W.3d 242, 246 (Tex. App.—

Texarkana 2013, no pet.); Cartwright v. State, 605 S.W.2d 287, 288-89 (Tex.

Crim. App. 1980). A trial court abuses its discretion when it acts without reference

to any guiding rules or principles or acts arbitrarily or unreasonably, or when its

decision is so clearly wrong that it lies outside the zone of reasonable

disagreement. Gonzalez v. State, 117 S.W.3d 831, 839 (Tex. Crim. App. 2003).

       2. An Order Adjudicating Guilt Sets Aside the Order Deferring
          Adjudication, Including Any Fines or Restitution Imposed Therein

       No sentence is imposed when a defendant receives deferred adjudication.

See Davis v. State, 368 S.W.2d 368, 371 (Tex. Crim. App. 1998) (“strictly

speaking, it [deferred adjudication] is not a probated or suspended sentence

because there has not been a sentence”) (internal quotations omitted).       When

“guilt is adjudicated, the order adjudicating guilt sets aside the order deferring

adjudication, including the previously imposed fine” and restitution. Taylor v.
                                        14
	  
State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004) (fine); Alexander v. State, 301

S.W.3d 361, 364 (Tex. App.—Fort Worth 2009, no pet.) (restitution).

       3. When there is a Variance Between Oral Pronouncement of Sentence
          and a Court’s Written Judgment, the Oral Pronouncement Controls

       A defendant’s sentence must be pronounced orally in his presence. Tex.

Code Crim. Proc. Ann. 42.03, Section 1(a). “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.” Alexander, 301

S.W.3d at 363. Thus, “when there is a conflict between the oral pronouncement

and the written judgment, the oral pronouncement controls.” Burt v. State, 445

S.W.3d 752, 757 (Tex. Crim. App. 2014). “A trial judge has neither the statutory

authority nor the discretion to orally pronounce one sentence in front of the

defendant, but then enter a different written judgment outside the defendant’s

presence.” Id. at 3.

       4. Restitution is Punishment and as such, is Part of the Sentence that
          Must Be Orally Pronounced

       Restitution is punishment. Weir v. State, 278 S.W.3d 364, 366 (Tex. Crim.

App. 2006); Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006) (orig.

proceeding).    As such, to be valid it must be part of the sentence orally

pronounced. Burt, 445 S.W.3d at 760; Sauceda v. State, 309 S.W.3d 767, 769

(Tex. App.—Amarillo 2010, pet. ref’d); Alexander, 301 S.W.3d at 364.


                                         15
	  
                                                           5. When the Trial Court Orally Pronounces Restitution, but Fails to
                                                              State the Amount, the Restitution Order Must Be Vacated and a New
                                                              Restitution Hearing Held If The Factual Basis to Support the
                                                              Amount of Restitution Ordered is Lacking

                                                           “When the record is clear that the trial judge orally made restitution a part of

the sentence, but…the amount…is unclear, incorrect, or insufficient…appellate

courts should vacate the faulty order and remand for a new restitution hearing.”

Burt, 445 S.W.3d at 754. Restitution must have a factual basis, see Campbell v.

State, 5 S.W.3d 693, 696-97 (Tex. Crim. App. 1999), and therefore, “[d]ue process

considerations thus implicated require that there must be evidence in the record to

show that the amount [of restitution] set by the court has a factual basis.”

Cartwright, 605 S.W.2d at 288-89. Thus Appellant’s claim, despite the variance

between the oral pronouncement and the written judgment (which suggested there

was a problem), is at heart a legal sufficiency claim: and a “claim regarding

sufficiency of the evidence need not be preserved for appellate review at the trial

level, and it is not forfeited by the failure to do so.” Moff v. State, 131 S.W.3d 485,

489 (Tex. Crim. App. 2004).1




	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1
 Which makes error-preservation not an issue, as it was in what we might call “Burt I”. Burt v.
State, 396 S.W.3d 574 (Tex. Crim. App. 2013) (considering whether two claims, fact that orally
pronounced restitution differed from written judgment and fact that amount in written judgment
improperly included losses from alleged victims not named in the indictment, were preserved).
                                                                                                                                                                                                                                                       16
	  
Application

       1. Restitution originally imposed was set aside when the court
          adjudicated guilt and imposed a sentence

       Here, the Order of Deferred Adjudication ordered restitution in the amount

of $1,922.57 at $35.00 per month, (I C.R. at 28-30), but this did not constitute a

sentence. Davis, 368 S.W.2d at 371. That order was then set aside when the court

adjudicated Appellant guilty and imposed a sentence. Taylor, 131 S.W.3d at 502;

Alexander, 301 S.W.3d at 364.

       2. The court’s oral pronouncement of sentence mentioned that
          restitution would be ordered, but failed to state the amount

       When Appellant pled true to the State’s motion to adjudicate guilt, the court

did not pronounce her guilty at that time and impose a sentence. (VI R.R. at 9).

Rather, the court held a sentencing hearing later, at which point the court

adjudicated Appellant guilty. (VII R.R. at 7). When the court imposed sentence,

the court stated Appellant would “still owe whatever restitution remains unpaid of

the original $19,232.57 [sic] that was previously ordered.” (VII R.R. at 7).

       Restitution, as punishment, is part of the sentence, so it must be included in

the oral pronouncement. Weir, 278 S.W.3d at 366; Ex parte Cavazos, 203 S.W.3d

at 338; Sauceda, 309 S.W.3d at 769; Alexander, 301 S.W.3d at 364. Here, because

restitution was orally pronounced, (VII R.R. at 7), the restitution order of

$1,922.57 cannot be deleted. Burt, 445 S.W.3d at 760-761.


                                         17
	  
       3. When the fact of restitution is ordered but not the amount, the
          restitution order must be vacated and a new restitution hearing held

       Here, as in Burt, the trial judge “made restitution a part of his oral

pronouncement of sentence”, so the “restitution order should not be deleted”. Burt,

445 S.W.3d at 760. However, “the case should be remanded to the trial court for a

hearing in which [A]ppellant will have to object to the amount, introduce evidence

to support [her] position, and exercise all of [her] due process rights.” Id. This is

because the fact, but not the amount, of restitution was orally pronounced. Id. at

760-761. A remand should be conditioned, however, on the record not otherwise

providing a factual basis to support the amount of restitution ordered, because Burt

stated the facts of its case “more comfortably [fell] within that body of our case

law in which the trial judge has the authority to order restitution and did order

restitution, but the evidence is insufficient to support the restitution amount

ordered.”   Burt, 445 S.W.3d at 760.            Stated another way, unless the record

otherwise conclusively establishes the amount of restitution owed, the appellate

court should remand for a new restitution hearing.

       4. The record does not otherwise conclusively establish the amount of
          restitution ordered in the written judgment

       When the trial judge orally pronounced sentence, he stated Appellant would

owe “whatever restitution remains unpaid of the original $19,232.57 [sic] that was

previously ordered.” (VII R.R. at 7). We may discount the precise amount in this


                                           18
	  
quote, which is either a typographical error or a misstatement. What is certain is

that the trial judge did not know what amount of restitution was owed—otherwise,

he would not have said Appellant owes “whatever restitution remains unpaid”, but

that she owes “_______, which remains unpaid”.

                                                           When the trial judge orally pronounced sentence, he had not received

testimony or other documentary evidence because the prosecutor stated at the

beginning of the hearing that “[w]e don’t have any evidence, just argument.” (VII

R.R. at 4-5).                                                                                                                                                     The parties did not mention restitution during their closing

arguments. (VII R.R. at 5-6).

                                                           The trial judge did review a presentence investigation report before orally

pronouncing sentence, (VII R.R. at 4),2 but it is plain that this report did not

contain the amount of restitution owed or else the judge could have easily found,

and pronounced, the amount owed. In any event, the relevant statute does not

require the report to contain the amount of restitution owed, just the amount

necessary to compensate the victim adequately—the original, not the current,

amount of restitution owed. Tex. Code Crim. Proc. art. 42.12, Sec. 9(a) (report

must contain, among other things, the “amount of restitution necessary to

adequately compensate a victim of the offense”). Therefore, we cannot speculate


	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
2
  This report is not part of the appellate record, but it is “not normally included in that record.”
Brewer v. State, No. 1270-03, 2004 WL 3093224, at *4 (Tex. Crim. App. May 19, 2004)
(unpublished); see Tex. Code Crim. Proc. art. 42.12, Sec. 9(j) (report is confidential).
                                                                                                                                                                                                                                                       19
	  
as to whether the report contained the amount of restitution owed, and at any rate,

the judge could have and no doubt would have ordered a precise amount had it

been found in the report.

       The bill of costs suggests the full amount is owed, but there is reason to

believe this is incorrect. (I C.R. at 95).

       The prosecutor requested that the trial judge take judicial notice of his file,

including “the prior two motions to adjudicate and case histories attached thereto”,

and the judge did so. (VII R.R. at 4). But this does not supply the missing

evidence for two reasons. First, a trial court may take judicial notice “that a

pleading has been filed”, but “may not, however, take judicial notice of the truth of

allegations in its records.” Tschirhart v. Tschirhart, 876 S.W.2d 507, 508 (Tex.

App.—Austin 1994, no writ) (emphasis in original). Hence, unless these motions

and case histories are “formally admitted into evidence at trial, [the State] may not

rely on [them] as evidence on appeal.” Id. at 509.

       Second, even if these motions could be relied on as evidence, they support

the conclusion that some restitution was paid, and that a different amount would

have been owed by the time of sentencing.

       On January 23, 2012, Appellant was ordered to pay restitution of $1,922.57

at $35.00 per month. (III R.R. at 6); (I C.R. at 30). Assuming her first payment

was due in February 2012, then the first motion to revoke, filed in May 2012,


                                             20
	  
alleges an amount, $105.00, that would correctly reflect the delinquency if

Appellant made no payments at all up to that point. (I C.R. at 33) (three months

times $35 equals $105). Appellant pled true to this motion. (IV R.R. at 7).

       However, nine months later in February 2013, the State filed a motion to

revoke alleging that Appellant was only $45.00 delinquent. (I C.R. at 56-57). On

its face, this shows that something was paid, because the alleged delinquency is

less now than it was before. In fact, it suggests $375 was paid. If Appellant paid

nothing from February 2012 until February 2013, she would owe $420 ($35 x 12

=$420). If she is alleged to be only $45 delinquent, then she must have paid $375 (

$420 - $45 = $375). While Appellant pled not true to this motion, (V R.R. at 7),

at the hearing it was clear that $100 was paid towards Appellant’s approximately

$1,000 arrearages, which included restitution. (V R.R. at 16; 21-22). Hence, this

second motion and the hearing together support the conclusion that some payments

were made towards restitution, though they seem insufficient to determine

precisely what amount.

       In the third motion to revoke, filed in February 2014, the State alleged

Appellant was $630.00 delinquent in restitution fees. (I C.R. at 85-86). Again,

this supports the conclusion that something less than the full amount of restitution

was owed, because if Appellant had paid nothing for two years, she would have

been delinquent $840 ($35 x 24 = $840). Or, if she was only $45 behind a year


                                         21
	  
before, she would have been $465 behind in February 2014 if nothing was paid in

the interim ($35 x 12 = $420 + $45 = $465). Appellant pled true to this motion.

(VI R.R. at 8).

                                                           Based on the foregoing, three conclusions are true: first, that the State

alleged and Appellant agreed (by pleading true) that some restitution was paid;

second, the factual basis for ordering the full amount of restitution is lacking; and

third, we cannot determine what amount is actually owed from this record.

Therefore, this Court should vacate the restitution order and remand for a new

hearing on the amount of restitution only.3

                                                           5. Alternatively, the Court should vacate the restitution order and
                                                              modify the judgment to reflect the amount of restitution that would
                                                              be owed based on the third motion to adjudicate.

                                                           A plea of true by itself is sufficient to support revocation of community

supervision. Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. 1979). Thus, a

plea of true “relieves the State of its evidentiary burden.” Rusk v. State, 440

S.W.3d 694, 703 (Tex. App.—Texarkana 2013, no pet.). Here, Appellant pled true

to the third motion to revoke, so the question arises whether she is estopped from

challenging the amount alleged to be delinquent in the third motion. If so, then the

Court should modify the judgment to reflect that she owes restitution in the amount

of $1,712.57, which would represent the difference between what the delinquency

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
3
           Or on court costs and restitution only, if the Court agrees with Appellant on issue two.
                                                                                                                                                                                                                                                       22
	  
would have been ($840) if Appellant made no payments whatsoever and thus owed

the full amount ($1,922.57), and the amount the State alleged Appellant was

actually delinquent ($630).

       In this case, as shown above, the record discloses various amounts of

restitution owed or alleged to be owed at different times: in fact, one allegation

suggests Appellant paid more than $210, (I C.R. at 56 (suggesting she paid $375)),

and two out of the three allegations support the conclusion that some restitution

was paid (I C.R. at 56; 85), as does the record of the hearing on the second motion

to adjudicate. (V R.R. at 16; 21-22). Therefore, the record casts doubt on the

actual amount of restitution owed, despite Appellant’s plea of true. Given that, in

addition to “providing justice to victims” we must also be concerned about a

“defendant’s due-process rights”, Burt, 445 S.W.3d at 755, the safest and most just

course of action is to remand for a new restitution hearing to confirm the actual

amount of restitution owed. After all, the bill of costs alleges the full amount is

owed, (I C.R. at 96), so if this is correct a remand would serve the purpose of

restoring “the victim to the ‘status quo ante’ position he was in before the offense”,

while ensuring that this restitution “serves as appropriate punishment” for

Appellant. Burt, 445 S.W.3d at 756. For these reasons, the Court should not

become guilty of a “robotic application” of the plea of not true. Rusk, 440 S.W.3d

at 703.


                                         23
	  
       However, if the Court disagrees, then the Court should modify the judgment

to reflect that $1,712.57 is ordered in restitution, for the reasons given above.

Conclusion

       The restitution order in the judgment must be vacated, and the case

remanded to the trial court for a new hearing on the proper amount of restitution.

Alternatively, the Court should modify the judgment to reflect that $1,712.57 is

owed in restitution.

                       SUMMARY OF THE ARGUMENT

       ISSUE TWO: The judgment must be vacated as to court costs and a new

hearing ordered as to the amount owed because the record suggests some payments

were made towards court costs, but the precise amount is unclear, and one cost

appears without a statutory basis.

       Court costs may be challenged for the first time on appeal. The reviewing

court determines if there is a basis for the costs and if the facts support them, but

traditional legal sufficiency principles do not apply.

       The bill of costs states that no payments on court costs have been paid at all.

Appellant pled true to the State’s third motion to adjudicate, which alleged she was

delinquent $140 in court costs out of the initial $246.00, which she was to pay at a

rate of $10.00 per month. Because this motion was filed twenty-four months after

Appellant was to begin making payments of $10.00 per month, if Appellant had


                                          24
	  
truly paid nothing she would have been delinquent $240.00 in court costs. This

suggests at least $100 was paid. The second motion to adjudicate, filed twelve

months after Appellant was to begin paying, alleges a delinquency of only $10,

suggesting, again, that Appellant paid some court costs. While Appellant did not

pled true to this motion, at the hearing on the motion there was evidence that $100

was paid towards her $1,000 arrearages. Therefore, again, there is some evidence

that something was paid.      However, because the record does not support a

conclusive amount, it is not possible for this court to modify the judgment and

affirm; instead, a remand is necessary.

       There also does not seem to be a statutory basis for the “State Elect Filing

Fee—Crimi”, so on remand this fee should not be permitted to be imposed.

       Alternatively, the Court could take the alleged delinquency in the last

motion to adjudicate as reflecting the true amount of court costs paid, delete the

above-referenced fee, and then modify the judgment.

                                  ARGUMENT

Standard of Review and Applicable Law

       A challenge to the bases of assessed court costs may be raised for the first

time on appeal. Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014).

When reviewing the record supporting court costs, the appellate court determines

whether there is a “basis for the cost”, not whether there is “sufficient evidence


                                          25
	  
offered at trial to prove each cost”. Id. at 390. Thus, “traditional Jackson

evidentiary sufficiency principles do not apply.” Id.

       Court costs need not be “orally pronounced nor incorporated by reference in

the judgment to be effective.” Id. at 389. Therefore, “when a specific amount of

court costs is written in the judgment, an appellate court errs when it deletes the

specific amount if there is a basis for the cost.” Id. Still, only “statutorily

authorized court costs may be assessed against a criminal defendant”. Id. Thus,

when evaluating court costs, the reviewing court determines whether there is a

statutory basis for the costs and whether there are facts to support them. Id. at 395-

396.

Application

       This is really the mirror image of the restitution argument in issue one, so

the argument will parallel part of that argument.           However, it should be

emphasized that Appellant only challenges the statutory basis for one of the

assessed costs; for the most part, she argues that the factual basis is lacking to

support the reflection in the bill of costs that no payments have been made at all.

       On January 23, 2012, Appellant was ordered to pay court costs of $246 at

$10.00 per month. (III R.R. at 6); (I C.R. at 30). Assuming her first payment was

due in February 2012, then the first motion to revoke, filed in May 2012, alleges an

amount, $30.00, that would correctly reflect the delinquency if Appellant made no


                                          26
	  
payments at all up to that point. (I C.R. at 33) (three months times $10 equals

$30). Appellant pled true to this motion.4 (IV R.R. at 7).

                                                           However, nine months later in February 2013, the State filed a motion to

revoke alleging that Appellant was only $10.00 delinquent. (I C.R. at 56-57). On

its face, this shows that something was paid, because the alleged delinquency is

less now than it was before. In fact, it suggests $110 was paid. If Appellant paid

nothing from February 2012 until February 2013, she would owe $120 ($10 x 12

=$120). If she is alleged to be only $10 delinquent, then she must have paid $110 (

$120 - $10 = $110). While Appellant pled not true to this motion, (V R.R. at 7), at

the hearing it was clear that $100 was paid towards Appellant’s approximately

$1,000 arrearages, which included court costs. (V R.R. at 16; 21-22). Hence, this

second motion and the hearing together support the conclusion that some payments

were made towards court costs, though they seem insufficient to determine

precisely what amount.

                                                           In the third motion to revoke, filed in February 2014, the State alleged

Appellant was $140.00 delinquent in court costs. (I C.R. at 85-86). Again, this

supports the conclusion that something less than the full amount of court costs was
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
4
  The trial court took judicial notice of its file, (VII R.R. at 4), and just as in issue one, the court
could not have taken judicial notice of the truth of the allegations of any motions in its file nor
may the State now rely on any such motions as evidence if not formally admitted into evidence
during the revocation hearing. Tschirhart v. Tschirhart, 876 S.W.2d 507, 508-09 (Tex. App.—
Austin 1994, no writ). However, because court costs need not be orally pronounced nor do
traditional sufficiency of the evidence rules apply, Johnson, 423 S.W.3d at 390, this is less
important here than in issue one.
                                                                                                                                                                                                                                                       27
	  
still owed, because if Appellant had paid nothing for two years, she would have

been delinquent $240 ($10 x 24 = $240). Or, if she was only $10 behind a year

before, she would have been $130 behind in February 2014 if nothing was paid in

the interim ($10 x 12 = $120 + $10 = $130). Appellant pled true to this motion.

(VI R.R. at 8).

                                                           Based on the foregoing, three conclusions are true: first, that the State

alleged and Appellant agreed (by pleading true) that some court costs were paid;

second, the factual basis for ordering the full amount of court costs is lacking; and

third, we cannot determine what amount is actually owed from this record.

Therefore, this Court should vacate the court costs and remand for a new hearing

on the amount of court costs only.5

                                                           On remand, the trial court should be prohibited from imposing the cost for

“State Elect Filing Fee—Crimi” in the amount of $5.00. (I C.R. at 95). This is

because Appellant cannot determine the statutory basis for this fee. It is possible it

comes from Texas Government Code Section 103.024, which allows for a $5 fee

for filing a restitution lien under Article 42.22 of the Texas Code of Criminal

Procedure. However, section 5 of that article requires an affidavit to be filed to

perfect the restitution lien.                                                                                                                                                                                                                          Here, no such affidavit appears in the record.

Therefore, either the fee is without a statutory basis, or if the statutes just cited

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
5
           Or on court costs and restitution only, if the Court agrees with Appellant on issue one.
                                                                                                                                                                                                                                                              28
	  
provide that basis, then the factual predicate for assessment of the fee is lacking.

In either event, the fee should be deleted.

        If the Court believes Appellant’s plea of true to the third motion provides a

sufficient basis to determine the amount of costs owed, then the Court should

modify the judgment to reduce the amount of court costs owed by $105 ($100 for

the payments suggested by the allegation in the motion and $5 for the “State Elect

Filing Fee—Crimi”).

Conclusion

        The Court should delete the “State Elect Filing Fee—Crimi” fee, vacate the

rest of the judgment concerning court costs, and remand for a hearing to determine

the amount of costs actually owed, as well as the amount of restitution actually

owed if the Court agrees with Appellant on issue one.

                                      PRAYER

        WHEREFORE, PREMISES CONSIDERED, Appellant asks this Court to

VACATE the trial court’s judgment as argued above and REMAND for a new

hearing on restitution and court costs.        In the alternative, the Court should

MODIFY the judgment to reflect $1,712.57 in restitution owed. In addition, the

Court should MODIFY the judgment to reflect court costs owed in the amount of

$105.




                                          29
	  
                                       Respectfully submitted:

                                       /s/ Justin Bradford Smith
                                       Justin Bradford Smith
                                       Texas Bar No. 24072348

                                       Harrell, Stoebner, & Russell, P.C.
                                       2106 Bird Creek Drive
                                       Temple, Texas 76502
                                       Phone: (254) 771-1855
                                       FAX: (254) 771-2082
                                       Email: justin@templelawoffice.com

                                       ATTORNEY FOR APPELLANT


                      CERTIFICATE OF COMPLIANCE

       I hereby certify that, pursuant to Rule 9 of the Texas Rules of Appellate
Procedure, Appellant’s Brief contains 5,107 words, exclusive of the caption,
identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of
service, certification, certificate of compliance, and appendix.


                                              /s/ Justin Bradford Smith
                                              Justin Bradford Smith




                                         30
	  
                         CERTIFICATE OF SERVICE

       I hereby certify that on January 24, 2015, a true and correct copy of

Appellant’s Brief was forwarded to the counsel below by eservice:

       Bob Odom
       Bell County District Attorney’s Office
       P.O. Box 540
       Belton, Texas 76513
       Email: DistrictAttorney@co.bell.tx.us

                                             /s/ Justin Bradford Smith
                                             Justin Bradford Smith




                                        31
	  
