                                                                        ACCEPTED
                                                                    03-15-00539-CR
                                                                            7746059
                                                         THIRD COURT OF APPEALS
                                                                    AUSTIN, TEXAS
                                                               11/9/2015 2:29:39 PM
                                                                  JEFFREY D. KYLE
                                                                             CLERK
             No. 03-15-00539-CR
                   IN THE
            COURT OF APPEALS                  FILED IN
                                       3rd COURT OF APPEALS
OF THE THIRD SUPREME JUDICIAL DISTRICT     AUSTIN, TEXAS
____________________________________________
                                       11/9/2015 2:29:39 PM
                                              JEFFREY D. KYLE
               MATTHEW DIAZ,                       Clerk
                 Appellant,

                      v.

              STATE OF TEXAS
____________________________________________

            Appeal in Cause No. 72269
           in the 426th District Court of
                Bell County, Texas
_____________________________________________

  BRIEF FOR APPELLANT MATTHEW DIAZ
_____________________________________________




                           JOHN A. KUCHERA
                           210 N. 6th St.
                           Waco, Texas 76701
                           (254) 754-3075
                           (254) 756-2193 (facsimile)
                           SBN 00792137
                           johnkuchera@210law.com
                           Attorney for Appellant




                                                                i
                    Identity of Judge, Parties, and Counsel

Honorable Fancy H. Jezek, 426th District Court, P.O. Box 324, Belton, Texas
76513; Trial Judge

Shelly Strimple, Assistant District Attorney, Bell County, Texas, P.O. Box 540,
Belton, Texas 76513; State’s Trial Counsel

John Lawrence Erskine, Assistant District Attorney, Bell County, Texas, P.O. Box
540, Belton, Texas 76513; State’s Trial Counsel

Randy Dale, Appellant’s Trial Counsel, 2608 North Main Street, Suite B-142,
Belton, Texas 76513

Bobby Barina, Appellant’s Counsel for Motion to Adjudicate Guilt, 455 East Central
Texas Expressway, Suite 104, Harker Heights, Texas 76548

Bob D. Odom, Assistant District Attorney, P.O. Box 540, Belton, Texas 76513,
State’s Appellate Counsel

John A. Kuchera, 210 N. 6th St., Waco, Texas, 76701, Appellant’s Appellate
Counsel

Matthew Diaz, Appellant, TDCJ # 02016599, Hutchins Unit, 1500 E. Langdon
Rd.; Dallas, TX 75241




                                                                                 ii
                                  Table of Contents
                                                                            Page
Identity of Parties and Counsel                                             ii

Table of Contents                                                           iii-iv

Index of Authorities                                                        v-viii

Issues Presented                                                            ix

Statement of the Case                                                       1-2

Statement of Facts                                                          3

Summary of the Argument                                                     3-4

Argument and Authorities

 1. Because the trial court violated Diaz’s right to due process by         4-10
   assessing his sentence, based in part on ten “violations” of community
   supervision where either the trial court did not conduct the required
   hearing, or the State did not meet its burden, Diaz should be re-
   sentenced.
   (a) Diaz’s alleged violations                                            4
   (b) Failure to pay court costs, court-appointed attorney’s fees and      4-7
      community supervision fees
   (c) Failure to pay fine                                                  7-8
   (d) Due process violation                                                8-10


 2. Alternatively, because the trial court did not make an express deadly   10-19
   weapon finding at the time it adjudicated Diaz’s guilt, the judgment
   should be corrected to delete the deadly weapon finding.
   (a) Background                                                           10-11
   (b) Making a deadly weapon finding                                       11-13
   (c) A trial judge may decline to make a deadly weapon finding            13
   (d) An additional twist: Adjudication of guilt after being placed on     13-15
       deferred adjudication community supervision


                                                                                     iii
   (e) The instant case: Analysis of the deferred phase                  15-17
   (f) The instant case: Analysis of the adjudication phase              17-19
   (g) Ex parte Huskins                                                  19


 3. Alternatively, the trial court erred in over-assessing court costs   20-26
   against Diaz in the amount of $279.00.
   (a) Diaz’s total court costs                                          20-21
   (b) District clerk fee                                                21-22
   (c) Sheriff fee                                                       22
   (d) Capias Warrant Fee                                                23
   (e) Clerk court technology fund fee                                   23
   (f) Courthouse security fee                                           23
   (g) District clerk record preservation fee                            23-24
   (h) Records management fee                                            24
   (i) Jury service fund fee                                             24
   (j) Judiciary support fee                                             24-25
   (k) Consolidated court costs                                          25
   (l) Time payment fee                                                  25
   (m) Basic criminal legal services fee                                 25
   (n) Administrative transaction fee                                    25-26
   (o) State Elect Filing Fee                                            26


Prayer for Relief                                                        26-27

Certificate of Service                                                   27

Certificate of Compliance                                                28




                                                                              iv
                                            Table of Authorities

                                                                                                            Page(s)

Cases
Abron v. State,
  997 S.W.2d 281 (Tex.App. – Dallas 1998, pet. ref’d)........................................ 14

Anderson v. State,
  110 S.W.3d 98 (Tex. App.—Dallas 2003, no pet.) ............................................ 17

Balderamos v. State,
   No. 02-13-00121-CR, 2014 WL 982352 (Tex. App.—Fort Worth
   Mar. 13, 2014, no pet.)........................................................................................ 16

Bourque v. State,
  No. 12-10-00123-CR, 2011 WL 1881216 (Tex. App.—Tyler May
  18, 2011, no pet.) ................................................................................................ 16
Brown v. State,
   354 S.W.3d 518 (Tex.App. – Fort Worth 2011, pet. ref’d) .................................. 5
Ex parte Chavez,
   213 S.W.3d 320 (Tex. Crim. App. 2006) ............................................................. 8

Cleaver v. State,
   No. 09-11-00132-CR, 2011 WL 3925713 (Tex. App.—Beaumont
   Aug. 24, 2011, no pet.) ....................................................................................... 16
Davis v. State,
  968 S.W.2d 368 (Tex. Crim.App. 1998) (en banc) ............................................ 14
Ex parte Empey,
   757 S.W.2d 771 (Tex. Crim. App. 1988) ........................................................... 12

Gipson v. State,
   395 S.W.3d 910 (Tex.App.—Beaumont 2013), rev’d on other
   grounds, 428 S.W.3d 107 (Tex. Crim. App. 2014) .......................................... 5, 7

Guerrero v. State,
  299 S.W.3d 487 (Tex. App.—Amarillo 2009, no pet.) ...................................... 16


                                                                                                                      v
Guthrie-Nail v. State,
  --- S.W.3d ---, 2015 WL 5449642 (Tex. Crim. App. Sept. 16,
  2015) .................................................................................................12, 13, 18, 19

Ex parte Hughes,
   739 S.W.2d 869 (Tex. Crim. App. 1987) ........................................................... 12

Ex parte Huskins,
   176 S.W.3d 818 (Tex. Crim. App. 2005) ........................................................... 19
Johnson v. State,
   No. 05-00-00464-CR, 2002 WL 1788002 (Tex. App.—Dallas Aug.
   5, 2002, no pet.) (unpublished) ........................................................................... 17

Kinkaid v. State,
   184 S.W.3d 929 (Tex.App.-Waco 2006, no pet.) ............................................... 16

Labib v. State,
  239 S.W.3d 322 (Tex.App. – Houston [1st Dist.] 2007, no pet.) ....................... 14

McCoy v. State,
  81 S.W.3d 917 (Tex.App. – Dallas 2002, pet. ref’d).......................................... 14
McGowan v. State,
  14-05-00139-CR, 2006 WL 56105 (Tex. App.—Houston [14th
  Dist.] Jan. 12, 2006, pet. ref'd) (unpublished) .................................................... 16

Miller-El v. State,
   782 S.W.2d 892 (Tex. Crim. App. 1990) ............................................................. 8

Moore v. State,
  605 S.W.2d 924 (Tex. Crim. App. 1980) ............................................................. 4

Polk v. State,
   693 S.W.2d 391(Tex. Crim. App. 1985) ............................................................ 12

Rusk v. State,
  440 S.W.3d 694 (Tex.App.—Texarkana 2013, no pet.)....................................... 7

Sampson v. State,
  983 S.W.2d 842 (Tex.App.–Houston [1st Dist.] 1998, pet. ref'd) ...................... 16



                                                                                                                     vi
In re State,
    08-12-00165-CR, 2013 WL 634581 (Tex. App.—El Paso Feb. 20,
    2013, no pet.) ...................................................................................................... 17

State v. Cox,
   235 S.W.3d 283 (Tex. App.—Fort Worth 2007, no pet.)................................... 18

Taylor v. State,
   131 S.W.3d 497 (Tex. Crim. App. 2004) .....................................................14, 15
United States v. Tucker,
  404 U.S. 443 (1972) .......................................................................................... 8, 9

Weir v. State,
  278 S.W.3d 364 (Tex. Crim. App. 2009) ........................................................... 22

Statutes
Tex. Crim. Proc. Code Ann. art. 37.07 § 4(a).......................................................... 19
Tex. Crim. Proc. Code Ann. art. 37.07 § 4(b) ......................................................... 19

Tex. Crim. Proc. Code Ann. art. 42.12 § 2(2)(A) .................................................... 14
Tex. Crim. Proc. Code Ann. art. 42.12 § 5(a).......................................................... 14
Tex. Crim. Proc. Code Ann. art. 42.12 § 5(b) ......................................................... 14

Tex. Crim. Proc. Code Ann. art. 42.12 § 21(c).......................................................... 5

Tex. Crim. Proc. Code Ann. art. 43.03(d) ................................................................. 7
Tex. Crim. Proc. Code Ann. art. 43.03(d) ................................................................. 8

Tex. Crim. Proc. Code Ann. § art. 42.01 ................................................................. 19

Tex. Crim. Proc. Code Ann. § art. 42.12, Sec. 3g ................................................... 12

Tex. Code Crim. Proc. Ann. art. 102.005(a) ............................................................ 21

Tex. Code Crim. Proc. Ann. art. 102.005(b)(2) ....................................................... 21

Tex. Code Crim. Proc. Ann. art. 102.005(f)(1) ....................................................... 24

Tex. Code Crim. Proc. Ann. art. 102.005(f)(2) ....................................................... 23
                                                                                                                         vii
Tex. Code Crim. Proc. Ann. art. 102.011(a)(2) ....................................................... 23

Tex. Code Crim. Proc. Ann. art. 102.017(d) ........................................................... 23
Tex. Code Crim. Proc. Ann. art. 102.0045(a) .......................................................... 24

Tex. Code Crim. Proc. Ann. art. 102.072 ................................................................ 26

Tex. Code Crim. Proc. Ann. art. 102.073 ................................................................ 22

Tex. Code Crim. Proc. Ann. art. 102.0169 (d) ........................................................ 23

Tex. Code Crim. Proc. Ann. art. 103.002 ..........................................................22, 26
Tex. Loc. Gov’t Code Ann. § 133.102(e) ................................................................ 25
Tex. Loc. Gov’t Code Ann. § 133.103(a) ................................................................ 25

Tex. Loc. Gov’t Code Ann. § 133.105(a) ................................................................ 24

Tex. Loc. Gov’t Code Ann. § 133.107(a) ................................................................ 25
Tex. Penal Code Ann. § 29.02 (a)(2) ....................................................................... 10

Tex. Penal Code Ann. § 29.03 (a)(2) ....................................................................... 10

Other Authorities
Tex. S.B. 740, 84th Leg., R.S. (2015) ...................................................................... 22




                                                                                                            viii
                                 Issues Presented

1. Whether the trial court violated Diaz’s right to due process by assessing his
sentence, based in part on ten “violations” of community supervision where either
the trial court did not conduct the required hearing, or the State did not meet its
burden.



2. Alternatively, whether because the trial court did not make an express deadly
weapon finding at the time it adjudicated Diaz’s guilt, the judgment should be
corrected to delete the deadly weapon finding.



3. Alternatively, whether the trial court erred in over-assessing court costs against
Diaz in the amount of $279.00.




                                                                                   ix
                             IN THE
                        COURT OF APPEALS
             OF THE THIRD SUPREME JUDICIAL DISTRICT
   _____________________________________________________________

MATTHEW DIAZ,
    Appellant,

     v.                                                 No. 03-15-00539-CR

STATE OF TEXAS
   ____________________________________________________________
                       Appeal in Cause No. 72269
                      in the 426th District Court of
                           Bell County, Texas
    ____________________________________________________________

              BRIEF FOR APPELLANT MATTHEW DIAZ
    ____________________________________________________________

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

      NOW COMES MATTHEW DIAZ, Appellant, by and through undersigned

counsel, and submits this brief pursuant to the provisions of the Texas Rules of

Appellate Procedure.



                             Statement of the Case

      On January 22, 2014, Matthew Diaz (“Diaz”) was charged by indictment,

individually and as a party, with the felony offense of aggravated robbery, alleged

to have been committed on or about November 7, 2013. CR 4-5.



                                                                                  1
       On March 31, 2014, Diaz pled guilty to the charged offense, pursuant to a plea

agreement. CR 20-27. On April 8, 20141, Diaz was placed on ten years deferred

adjudication community supervision, fined $1,500 and given 100 days in jail as a

condition of community supervision. 2 RR 5; CR 30-33.

       On June 1, 2015, at hearing on the State’s first amended motion to adjudicate

guilt, Diaz entered a plea of true to all violations alleged therein. 2 RR 9-10. The

trial court determined the evidence was sufficient to establish the allegations were

true, “[b]ut I’m going to withhold that finding.” 2 RR 11.

       On August 11, 2015, the trial court did find the allegations to be true,

adjudicated Diaz to be guilty of the charged offense, and sentenced him to five years

in prison and no fine. 3 RR 1, 16-17; CR 60-61. The trial court did not orally

pronounce a deadly weapon finding.

       The trial court certified Diaz’s right to appeal. CR 58. Diaz timely filed his

notice of appeal August 14, 2015. CR 65. Trial counsel was allowed to withdraw

and undersigned counsel was appointed to represent Diaz on appeal. 3 RR 17; CR

69.




1
 The Order of Deferred Adjudication, though signed April 8, 2014, includes the following entry
under “Date Order Entered”: March 31, 2014. CR 30, 33. This would appear to be a mistake.
                                                                                            2
                                 Statement of Facts

      The facts necessary for this Court’s consideration are set forth under the

respective issues.

                             Summary of the Argument

      First issue: The State alleged nineteen violations of community supervision

in its First Amended Motion to Adjudicate Diaz’s guilt. Ten of those violations had

to do with Diaz being financially delinquent. Nine of these ten violations required

the State to put on evidence tending to show that Diaz was willfully delinquent. The

State put on no such evidence. One of these ten violations (Diaz being behind on

his fine payments), in order to serve as a violation of community service, required

the trial court to find that Diaz was not indigent and that he had the ability to pay the

fine. The trial court made no such findings. Nonetheless, the trial court determined

Diaz’s sentence based on the misinformed belief that he had committed nineteen

violations, when in fact legally, he had committed only nine violations. This

constituted a violation of Diaz’s right to due process.

      Second issue: The trial court did not make a deadly weapon finding at the

time it adjudicated Diaz’s guilt and sentenced him. Therefore, the deadly weapon

finding should be deleted from the written judgment.




                                                                                       3
        Third issue: The trial court overcharged Diaz $279 in court costs. The

written judgment should be modified to reflect the correct amount of court costs

owed.




                                 Argument and Authorities

1. Because the trial court violated Diaz’s right to due process by assessing his
sentence, based in part on ten “violations” of community supervision where
either the trial court did not conduct the required hearing, or the State did not
meet its burden, Diaz should be re-sentenced.



        (a) Diaz’s alleged violations

        The State’s first amended motion to adjudicate guilt alleged that Diaz

committed nineteen violations of community supervision. CR 46-48. The trial court

determined Diaz’s sentence based on a finding that all nineteen violations were true.

CR 60. However, ten of the violations involved financial delinquencies.2

        (b) Failure to pay court costs, court-appointed attorney’s fees and community
                      supervision fees




2
   Because there were violations to which Diaz stipulated that did not involve financial
delinquencies, the trial court did not abuse its discretion in adjudicating Diaz’s guilt and imposing
a sentence. See Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. 1980) (proof of a single
violation of the terms of community supervision is sufficient to support revocation).
                                                                                                   4
       Article 42.12 § 21(c) of the Code of Criminal Procedure, the ability-to-pay

statute, provides in relevant part:

       In a community supervision revocation hearing at which it is alleged
       only3 that the defendant violated the conditions of community
       supervision by failing to pay compensation paid to appointed counsel,
       community supervision fees, or court costs, the state must prove by a
       preponderance of the evidence that the defendant was able to pay and
       did not pay as ordered by the judge. (emphasis added)


Tex. Crim. Proc. Code Ann. art. 42.12 § 21(c) (West Supp. 2014). Each of the

following of Diaz’s alleged violations comes within the purview of this statute:

       D. has violated condition #4 in that he failed to obtain drug/alcohol
        screening and/or testing and counseling as indicated under the
        direction of the Community Supervision Officer at own expense. He
        failed to complete Drug Offenders Course4 as directed on December
        9, 2014.
CR 46.
       J. has violated condition #22 in that he failed to pay $251.00 in Court
        Costs to be paid $10.00 per month. He is delinquent $120.00.
CR 47.
       L. has violated condition #22 in that he failed to pay $450.00 Court
        Appointed Attorney fees to be paid $10.00 per month. He is
        delinquent $120.00.


3
  The word “only” does not mean that this statute only applies when the State alleges nothing more
than monetary violations of community supervision. Brown v. State, 354 S.W.3d 518, 520 n. 3
(Tex.App. – Fort Worth 2011, pet. ref’d).
4
  This would be considered a court cost. See Gipson v. State, 395 S.W.3d 910, 914 (Tex.App.—
Beaumont 2013) (“PSI and Crime Stoppers fees are often assessed as court costs; thus, we
conclude these costs may be included within the statute’s purview.”), rev’d on other grounds, 428
S.W.3d 107 (Tex. Crim. App. 2014).
                                                                                                5
CR 47.
       M. has violated condition #22 in that he failed to pay $35.00 Life Skills
       program fee.5 He is delinquent $35.00.
CR 47.
       N. has violated condition #22 in that he failed to pay $75.00 Pre-
       Sentence Investigation report fee. He is delinquent $75.00.
CR 47.
       O. has violated condition #22 in that he failed to pay $10.00 Substance
       Abuse Questionnaire fee.6 He is delinquent $10.00.
CR 47.
       P. has violated condition #22 in that he failed to pay $60.00
        Supervision fee per month for each month of the supervision period.
        He is delinquent $310.00.
CR 47.
       Q. has violated condition #22 in that he failed to pay $25.00 Substance
       Abuse Test fee7 per month for each month of the direct supervision
       period while on specialized caseload/$10.00 per fee per month for each
       month of the direct supervision period while on regular caseload. He
       is delinquent $130.00.
CR 48.
       S. has violated condition #26 in that he failed to participate in and
        successfully complete a Violence Intervention Program,8 at own
        expense, within time period directed by Community Supervision
        Officer. On April 2, 2014, he was referred to the Center for Cognitive
        Education for Violence Intervention Program. He has failed to provide
        proof of completion.



5
  See footnote 4.
6
  See footnote 4.
7
  See footnote 4.
8
  See footnote 4.
                                                                                   6
CR 48. The fact the Diaz pled true to these allegations established only that he was

delinquent. His plea of true did not establish that he was able to pay but did not pay.

Gipson, 395 S.W.3d at 914 (“[a] plea of ‘true’ does not constitute an admission of

willfully failing to pay.”); Rusk v. State, 440 S.W.3d 694, 700 n. 8 (Tex.App.—

Texarkana 2013, no pet.). The State put on no evidence tending to show that Diaz

had the ability to pay but chose not to.9




       (c) Failure to pay fine

       Diaz was also alleged to be delinquent in making his fine payments:

       K. has violated condition #22 in that he failed to pay $1,500.00 Fine to
       be paid $15.00 per month. He is delinquent $180.00.
CR 47.
       Article 43.03 of the Code of Criminal Procedure, entitled “Payment of Fine,”

provides in pertinent part as follows:

       A court may not order a defendant confined [for defaulting in payment
       of a fine or costs] unless the court at a hearing makes a written
       determination that:
       The defendant is not indigent and has failed to make a good faith effort
       to discharge the fines and costs; or



9
  Diaz’s sister testified at the sentencing hearing: “I know the reason why he [Diaz] stopped
reporting he was discouraged he couldn’t find a job.” 3 RR 6.


                                                                                           7
      The defendant is indigent and has failed to make a good faith effort to
      discharge the fines and costs under Article 43.09(f); and could have
      discharged the fines and costs under Article 43.09 without experiencing
      any undue hardship. (emphasis added)


Tex. Crim. Proc. Code Ann. art. 43.03(d) (West Supp. 2014). The Clerk’s Record

does not contain any sort of written determination that the trial court found the

above-referenced facts regarding Diaz’s delinquency in paying his fine.




      (d) Due process violation

      At the punishment stage, the trial court generally has discretion to assess

whatever punishment within the prescribed range it sees fit. Miller-El v. State, 782

S.W.2d 892, 895 (Tex. Crim. App. 1990). However, principles of due process

require that a sentencing court’s normative judgment not be misinformed. Ex parte

Chavez, 213 S.W.3d 320, 324 (Tex. Crim. App. 2006). In United States v. Tucker,

404 U.S. 443 (1972) the defendant was convicted by a jury of armed bank robbery.

At sentencing, the district court assessed a sentence of twenty-five years in prison,

based in part on the fact that the defendant had three prior felony convictions. Id. at

444. Years later it was determined that two of the three prior felony convictions

were constitutionally invalid because the defendant had not been represented by

counsel, nor had he intelligently waived his right to counsel. Id. at 445. The


                                                                                     8
Supreme Court affirmed the Court of Appeals’ decision to vacate defendant’s

sentence and remand for re-sentencing:


      [W]e deal here, not with a sentence imposed in the informed discretion
      of a trial judge, but with a sentence founded at least in part upon
      misinformation of constitutional magnitude. As in Townsend v. Burke,
      334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690, ‘this prisoner was
      sentenced on the basis of assumptions concerning his criminal record
      which were materially untrue.’ . . . The record in the present case makes
      evident that the sentencing judge gave specific consideration to the
      respondent's previous convictions before imposing sentence upon him.
      Yet it is now clear that two of those convictions were wholly
      unconstitutional[.] [T]he real question here is not whether the results
      of the Florida and Louisiana proceedings might have been different if
      the respondent had had counsel, but whether the sentence in the 1953
      federal case might have been different if the sentencing judge had
      known that at least two of the respondent's previous convictions had
      been unconstitutionally obtained. We agree with the Court of Appeals
      that the answer to this question must be ‘yes.’ For if the trial judge in
      1953 had been aware of the constitutional informity of two of the
      previous convictions, the factual circumstances of the respondent's
      background would have appeared in a dramatically different light at the
      sentencing proceeding.
Id. at 447-48.

      In the instant case, the trial court imposed Diaz’s sentence based in part on a

finding that ten alleged “violations” were true, when in fact these ten allegations

should not have been considered violations, given the State’s failure to meet its

burden of proof regarding court-appointed counsel fees, community supervision fees

and court costs, and the court’s failure to make a finding regarding Diaz’s failure to


                                                                                    9
make a good faith effort to discharge the fine and costs.10 Because the trial court

determined what sentence to impose based on “misinformation” – ten non-violations

– Diaz’s due process rights were affected.




2. Alternatively, because the trial court did not make an express deadly weapon
finding at the time it adjudicated Diaz’s guilt, the judgment should be corrected
to delete the deadly weapon finding.


       (a) Background

       Diaz’s indictment reads in relevant part as follows:

       Matthew Diaz . . . Defendant, on or about the7th day of November. . .
       2013 . . . did then and there, individually and as a party with Deontavius
       D’Tarris Griffin, Patrick O’Neal Johnson and Jeremy Michael Oaties,
       while in the course of committing theft of property and with intent to
       obtain or maintain control of said property, intentionally and knowingly
       threaten or place Jose Rolando Hernandez-Torres in fear of imminent
       bodily injury or death, and the defendant did th[e]n and there use or
       exhibit a deadly weapon, to-wit: a firearm.
CR 4. The indictment alleges aggravated robbery, the aggravating factor being the

use/exhibition of a deadly weapon.11




10
   As to Diaz’s indigence, the trial court had already determined that he was indigent and appointed
counsel to represent him in the motion to adjudicate proceedings. CR 49-51.
11
   A person commits robbery if, in the course of committing theft, and with intent to obtain or
maintain control of the property, “he intentionally or knowingly threatens or places another in fear
of imminent bodily injury or death.” Tex. Penal Code Ann. § 29.02 (a)(2) (West 2011). A person
commits aggravated robbery if he commits robbery and he “uses or exhibits a deadly weapon.”
Tex. Penal Code Ann. § 29.03 (a)(2) (West 2011).
                                                                                                 10
      Diaz’s Order of Deferred Adjudication, under Findings on Deadly Weapon,

reads as follows: “Yes, a firearm”[.] CR 30. The trial court brought this to Diaz’s

attention at the hearing on State’s First Amended Motion to Adjudicate:

 Court: You were previously placed on deferred adjudication in this case by a
  written order that’s dated April the 8th of 2014. And at that time you were placed
  on ten-year deferred adjudication probation for the felony offense of aggravated
  robbery.
 Diaz: Yes, ma’am.
 Court: And that included a finding of a deadly weapon. You understand that?
 Diaz: Yes, ma’am.
2 RR 5. However, at sentencing, the district court made no mention of a deadly

weapon finding:

      Mr. Diaz, at this time I’m finding that the allegations in the State’s
      Motion to Adjudicate are true. I’m finding you guilty of the felony
      offense of aggravated robbery. It’s the judgment of the court, sir, that
      you serve five years in the Institutional Division of the Texas
      Department of Criminal Justice. I’ll also order that you pay all court
      costs in this case.
3 RR 16. Nonetheless, Diaz’s written Judgment Adjudicating Guilt provides under

“Findings on Deadly Weapon: Yes, a firearm”[.] CR 60.




      (b) Making a deadly weapon finding




                                                                                 11
      Article 42.12, Sec. 3g. lists the circumstances wherein a trial court is

precluded from placing a defendant on community supervision. Included in this list

is:


      when it is shown that a deadly weapon as defined in Section 1.07, Penal
      Code, was used or exhibited during the commission of a felony offense
      or during immediate flight therefrom, and that the defendant used or
      exhibited the deadly weapon or was a party to the offense and knew
      that a deadly weapon would be used or exhibited.
Tex. Crim. Proc. Code Ann. § art. 42.12, Sec. 3g. (a)(2) (West Supp. 2014). In this

circumstance, the trial court has the following duty:

      On an affirmative finding that the deadly weapon was a firearm, the
      court shall enter that finding in its judgment.

Id. The Court of Criminal Appeals has construed this sentence to require that (1) the

trier of fact must make an affirmative deadly weapon finding, and (2) the trial judge

must enter that affirmative finding in the judgment. Ex parte Empey, 757 S.W.2d

771, 774-75 (Tex. Crim. App. 1988); Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim.

App. 1985). These are separate and distinct requirements. The fact that a judgment

includes the phase “deadly weapon” does not constitute a deadly weapon finding.

Ex parte Hughes, 739 S.W.2d 869, 870-71 (Tex. Crim. App. 1987).

      Furthermore, “[a]n affirmative deadly-weapon finding must be an “express”

determination in order to be effective.” Guthrie-Nail v. State, --- S.W.3d ---, 2015

WL 5449642, at *2 (Tex. Crim. App. Sept. 16, 2015). A trial judge may satisfy this

“express” requirement by “explicitly saying that a deadly-weapon finding is being
                                                                                  12
made,” or by making reference to a charging instrument that includes a deadly

weapon allegation (e.g. the defendant is found guilty “as charged in the indictment”).

Id.



      (c) A trial judge may decline to make a deadly weapon finding

      Recently the Court of Criminal Appeals held that a trial judge has discretion

to decline to make a deadly-weapon finding even when the use of a deadly weapon

is a necessary element of the charged offense and the defendant has entered a plea

of guilty to that offense:

      We conclude . . . that a trial judge has the discretion to decline to make
      a deadly-weapon finding even after finding the defendant guilty of an
      offense in which use of a deadly weapon was a charged or necessary
      element.

 Guthrie-Nail v. State, 2015 WL 5449642, at *4.



      (d) An additional twist: Adjudication of guilt after being placed on
            deferred adjudication community supervision

      Deferred adjudication community supervision (“deferred”) is defined as

follows:

       “Community supervision” means the placement of a defendant by a court
       under a continuum of programs and sanctions, with conditions imposed by the
       court for a specified period during which . . . criminal proceedings are
       deferred without an adjudication of guilt. (emphasis added)



                                                                                   13
Tex. Crim. Proc. Code Ann. art. 42.12 § 2(2)(A) (West Supp. 2014); Tex. Crim.

Proc. Code Ann. art. 42.12 § 5(a) (West Supp. 2014) (When a defendant is placed

on deferred, there is no adjudication of guilt). Deferred is not a sentence, not even

a suspended sentence. Davis v. State, 968 S.W.2d 368, 371 (Tex. Crim.App. 1998)

(en banc); Labib v. State, 239 S.W.3d 322, 329 (Tex.App. – Houston [1st Dist.] 2007,

no pet.).

      However, “[a]fter an adjudication of guilt, all proceedings, including

assessment of punishment, pronouncement of sentence, granting of community

supervision, and defendant’s appeal continue as if the adjudication of guilt had not

been deferred.” (emphasis added) Tex. Crim. Proc. Code Ann. art. 42.12 § 5(b)

(West Supp. 2014). Stated another way, “criminal proceedings” do not begin until

the defendant’s guilt is adjudicated. The trial court’s judgment adjudicating guilt

sets aside the underlying deferred adjudication order. Abron v. State, 997 S.W.2d

281, 281 (Tex.App. – Dallas 1998, pet. ref’d); McCoy v. State, 81 S.W.3d 917, 919

(Tex.App. – Dallas 2002, pet. ref’d) (“By adjudicating guilt, the trial court supplants

its previous order deferring adjudication of guilt and imposing community

supervision.”). In Taylor v. State, 131 S.W.3d 497 (Tex. Crim. App. 2004), wherein

appellant had been on deferred adjudication and ordered to pay a fine -- but then had

his guilt adjudicated with no pronouncement of fine -- appellant argued that it was




                                                                                    14
improper for the trial court to include a fine in the written judgment. Id. at 499. The

Court of Criminal Appeals agreed with appellant:

       [W]hen an accused receives deferred adjudication, no sentence is
       imposed. Then, when guilt is adjudicated, the order adjudicating guilt
       sets aside the order deferring adjudication, including the previously
       imposed fine. . . . In this case, the order granting Taylor deferred
       adjudication was set aside. Taylor was not sentenced until his guilt was
       adjudicated. At that time, the judge did not orally pronounce a fine, but
       included a fine within the written judgment. When there is a conflict
       between the two, the oral pronouncement controls. Since the judge did
       not orally assess a fine as part of Taylor's sentence when guilt was
       adjudicated, the Court of Appeals was correct to delete the fine from
       the judgment.

Id. at 502.



       (e) The instant case: Analysis of the deferred phase

       As noted above, the charging instrument that formed the basis for Diaz

initially being placed on deferred adjudication community supervision (“deferred”)

alleged aggravated robbery, and the aggravating factor was the use/exhibition of a

deadly weapon. Stated another way, the use/exhibition of a deadly weapon was a

necessary element of the charged offense. And the Order placing Diaz on deferred

purported to make a deadly weapon finding.12 CR 30. At least eight intermediate

Courts of Appeal have held that it is improper to place a defendant on deferred and



12
  The actual colloquy from when Diaz initially entered his plea and was placed on deferred is not
presently part of the record.
                                                                                              15
also make a deadly weapon finding. See Guerrero v. State, 299 S.W.3d 487, 490

(Tex. App.—Amarillo 2009, no pet.) (“The purpose of the deadly weapon finding is

to assist in calculating a prisoner's parole eligibility date. . . . Yet, such a finding

would prevent a trial court from opting to defer the adjudication of guilt[.]”);

Balderamos v. State, No. 02-13-00121-CR, 2014 WL 982352, at *1 (Tex. App.—

Fort Worth Mar. 13, 2014, no pet.) (mem. op., not designated for publication) (“One

purpose of entering an affirmative deadly-weapon finding is to assist the Texas

Department of Criminal Justice . . . in calculating a prisoner's parole-eligibility date.

. . . Parole eligibility applies to incarcerated individuals and is not applicable or

appropriate in an order of deferred adjudication.”); Cleaver v. State, No. 09-11-

00132-CR, 2011 WL 3925713, at *3 (Tex. App.—Beaumont Aug. 24, 2011, no pet.)

(mem. op., not designated for publication) (“In deferred adjudication community

supervision cases, a deadly weapon finding is properly made at the time of

revocation.”); Sampson v. State, 983 S.W.2d 842, 843 (Tex.App.–Houston [1st

Dist.] 1998, pet. ref'd) (“[A]n affirmative finding of a deadly weapon is not

applicable to an order of deferred adjudication because parole eligibility only applies

to persons who are imprisoned.”); McGowan v. State, 14-05-00139-CR, 2006 WL

56105, at *4 (Tex. App.—Houston [14th Dist.] Jan. 12, 2006, pet. ref'd)

(unpublished) (same); Kinkaid v. State, 184 S.W.3d 929, 930 (Tex.App.-Waco 2006,

no pet.) (same); Bourque v. State, No. 12-10-00123-CR, 2011 WL 1881216, at *2


                                                                                      16
(Tex. App.—Tyler May 18, 2011, no pet.) (mem. op., not designated for publication)

(A trial court may not place a defendant on deferred adjudication community

supervision . . . if the trial court has made an affirmative finding on a deadly weapon

allegation.”); Johnson v. State, No. 05-00-00464-CR, 2002 WL 1788002, at *3 (Tex.

App.—Dallas Aug. 5, 2002, no pet.) (unpublished) (“An affirmative finding of a

deadly weapon is not applicable to an order of deferred adjudication because parole

eligibility only applies to persons who are imprisoned.”)13. Therefore, the deadly

weapon “finding” in Diaz’s Order deferring adjudication was a nullity. See

Anderson v. State, 110 S.W.3d 98, 99 (Tex. App.—Dallas 2003, no pet.) (portion of

order dismissing indictment for DWI conviction because defendant had successfully

completed his probation was “a nullity and is void” because code of criminal

procedure did not authorize such an order).



       (f) The instant case: Analysis of the adjudication phase

        As noted above, the trial court reminded Diaz at the hearing on the State’s

First Amended Motion to Adjudicate Guilt that the court had made a deadly weapon

“finding” at the time Diaz was placed on deferred. 2 RR 5. However, for the reasons



13
   But cf. In re State, 08-12-00165-CR, 2013 WL 634581, at *4 (Tex. App.—El Paso Feb. 20,
2013, no pet.) (district court directed pursuant to a writ of mandamus to enter a deadly weapon
finding in a deferred adjudication order to comply with terms of plea agreement).


                                                                                            17
just cited, that “finding” was a nullity. Furthermore, when the trial court adjudicated

Diaz’s guilt, the previous order deferring adjudication of guilt was supplanted, set

aside; the trial court was now writing on a clean slate. At sentencing, the district

court made no express deadly weapon finding:

       Mr. Diaz, at this time I’m finding that the allegations in the State’s
       Motion to Adjudicate are true. I’m finding you guilty of the felony
       offense of aggravated robbery. It’s the judgment of the court, sir, that
       you serve five years in the Institutional Division of the Texas
       Department of Criminal Justice. I’ll also order that you pay all court
       costs in this case.
3 RR 16. However, the court did state: “I’m finding you guilty of the felony offense

of aggravated robbery.”14 3 RR 16.         As noted above, use/exhibition of a deadly

weapon was a necessary element of the offense of aggravated robbery as alleged in

the indictment. But in light of Guthrie-Nail, the trial court’s adjudication of guilt as

to the charged offense did not, in and of itself, constitute an express deadly weapon

finding, given the court’s discretion to withhold such a finding even when use of a

deadly weapon was a necessary element of the offense. Because the trial court did

not orally make an express deadly weapon finding at the time it adjudicated Diaz’s

guilt and sentenced him, there is no deadly weapon finding.




14
  The trial court’s sentencing docket sheet says “yes” under deadly weapon finding. CR 75.
However, a docket sheet entry is not an order. State v. Cox, 235 S.W.3d 283, 285 (Tex. App.—
Fort Worth 2007, no pet.).

                                                                                         18
      The importance of deleting the deadly weapon language from Diaz’s

judgment adjudicating guilt cannot be overstated. “The sentence served shall be

based on the information contained in the judgment.” Tex. Crim. Proc. Code Ann.

§ art. 42.01 (West Supp. 2014). Without the deadly weapon language, Diaz would

become parole eligible when his good time plus his flat time equals one quarter of

his sentence. See Tex. Crim. Proc. Code Ann. art. 37.07 § 4(b) (West Supp. 2014).

However, if the deadly weapon language remains in the judgment he will not become

parole eligible until he has done half of his time flat. See Tex. Crim. Proc. Code

Ann. art. 37.07 § 4(a) (West Supp. 2014).




      (g) Ex parte Huskins

      The State may counter by citing Ex parte Huskins, 176 S.W.3d 818 (Tex.

Crim. App. 2005), wherein the Court of Criminal Appeals stated: “[A] trial court is

not required to orally announce a deadly-weapon finding at sentencing if the

allegation of use of a deadly weapon is clear from the face of the indictment.” Id. at

821. Diaz argues that this language has been implicitly disapproved of by the Court

of Criminal Appeals in Guthrie-Nail. If a trial court retains the discretion to decline

to make a deadly weapon finding, even when such a finding is a necessary element

of the adjudicated offense, then the only way to make an express deadly weapon

finding in such a circumstance is to explicitly orally pronounce it.

                                                                                    19
3. Alternatively, the trial court erred in over-assessing court costs against Diaz
in the amount of $279.00.


      (a) Diaz’s total court costs

      The bill of cost filed in connection with Diaz’s adjudication of guilt includes

the following:



      District Clerk                         $40.00
                                             $40.00


      Sheriff                                $25.00
                                             $25.00


      Capias Warrant Fee                     $50.00

      Clerk Court Technology Fund            $4.00
                                             $4.00


      Courthouse Security                    $5.00
                                             $5.00


      District Clerk Record Preservation     $2.50
                                             $2.50


      Records Management                     $22.50
                                             $22.50


      Jury Service Fund                      $4.00

                                                                                  20
                                                  $4.00


       Judiciary Support                          $6.00
                                                  $6.00


       Consolidated Court                         $133.00
                                                  $133.00

       Time Payments                              $25.00

       Basic Criminal Legal Services              $2.00
                                                  $2.00

       Administrative Transaction Fee             $2.00
                                                  $2.00

       State Elect Filing Fee                     $5.00
                                                  $5.00
                                                  $577.00

CR 63-64.



       (b) District clerk fee

       This $40 fee was properly assessed – the first time. See Tex. Code Crim. Proc.

Ann. art. 102.005(a). Article 102.005 provides “A defendant convicted of an offense

in a . . . district court shall pay for the services of the clerk of the court a fee of $40.”

Tex. Code Crim. Proc. Ann. art. 102.005(a). (West 2006). “[A] person is consider

convicted if . . . the person receives community supervision, including deferred

adjudication[.]” Tex. Code Crim. Proc. Ann. art. 102.005(b)(2). The Bill of Cost

                                                                                          21
indicates that Diaz was assessed the $40 fee at the time he was initially placed on

deferred, and again at the time his guilt was adjudicated. CR 34, 63. He should not

have to pay this fee twice. In Weir v. State, 278 S.W.3d 364, 366 (Tex. Crim. App.

2009), the Court of Criminal Appeals held “an assessment of court costs against

convicted defendants, was intended by the Legislature as a nonpunitive recoupment

of the costs of judicial resources expended in connection with the trial of the case.”

Court costs can only be nonpunitive if they are imposed only one time in one

criminal action. The legislature recently acted Senate Bill 740 (Tex. Code Crim.

Proc. Ann. art. 102.073) to make sure that court costs are assessed on each criminal

action – not each count. Tex. S.B. 740, 84th Leg., R.S. (2015). The second $40 fee

should not have been assessed.

         (c) Sheriff fee

         Article 102.011 of the Code of Criminal Procedure provides for the payment

of fees for the services of peace officers under certain circumstances. Tex. Code

Crim. Proc. Ann. art. 102.011. However there is no service listed therein that calls

for payment of $25.00. A bill of costs may not charge for a service not expressly

provided by law. Tex. Code Crim. Proc. Ann. art. 103.002. Because there is no

statutory basis for this fee, it should not have been assessed one time – let alone two

times.



                                                                                    22
      (d) Capias Warrant Fee

      This $50 fee was properly assessed. See Tex. Code Crim. Proc. Ann. art.

102.011(a)(2).

      (e) Clerk court technology fund fee

      There is a statutory basis for this fee. See Tex. Code Crim. Proc. Ann. art.

102.0169 (d). However, the Bill of Cost indicates that Diaz was assessed the $4 fee

at the time he was initially placed on deferred, and again at the time his guilt was

adjudicated. CR 34, 63. For the reasons set forth above, he should not have to pay

this fee twice.

      (f) Courthouse security fee

      There is a statutory basis for this fee. See Tex. Code Crim. Proc. Ann. art.

102.017(d). However, the Bill of Cost indicates that Diaz was assessed the $5 fee

at the time he was initially placed on deferred, and again at the time his guilt was

adjudicated. CR 34, 63. For the reasons set forth above, he should not have to pay

this fee twice.

      (g) District clerk record preservation fee

      There is a statutory basis for this fee. See Tex. Code Crim. Proc. Ann. art.

102.005(f)(2). However, the Bill of Cost indicates that Diaz was assessed the $2.50


                                                                                 23
fee at the time he was initially placed on deferred, and again at the time his guilt was

adjudicated. CR 34, 63. For the reasons set forth above, he should not have to pay

this fee twice.

      (h) Records management fee

      There is a statutory basis for this fee. See Tex. Code Crim. Proc. Ann. art.

102.005(f)(1). However, the Bill of Cost indicates that Diaz was assessed the $22.50

fee at the time he was initially placed on deferred, and again at the time his guilt was

adjudicated. CR 34, 63. For the reasons set forth above, he should not have to pay

this fee twice.

      (i) Jury service fund fee

      There is a statutory basis for this fee. See Tex. Code Crim. Proc. Ann. art.

102.0045(a). However, the Bill of Cost indicates that Diaz was assessed the $4.00

fee at the time he was initially placed on deferred, and again at the time his guilt was

adjudicated. CR 34, 63. For the reasons set forth above, he should not have to pay

this fee twice.

      (j) Judiciary support fee

      There is a statutory basis for this fee. See Tex. Loc. Gov’t Code Ann. §

133.105(a). However, the Bill of Cost indicates that Diaz was assessed the $6.00

fee at the time he was initially placed on deferred, and again at the time his guilt was
                                                                                     24
adjudicated. CR 34, 63. For the reasons set forth above, he should not have to pay

this fee twice.

      (k) Consolidated court costs

      There is a statutory basis for this fee. See Tex. Loc. Gov’t Code Ann. §

133.102(e). However, the Bill of Cost indicates that Diaz was assessed the $133.00

fee at the time he was initially placed on deferred, and again at the time his guilt was

adjudicated. CR 34, 63. For the reasons set forth above, he should not have to pay

this fee twice.

      (l) Time payment fee

      This $25.00 fee was properly assessed. See Tex. Loc. Gov’t Code Ann. §

133.103(a).

      (m) Basic criminal legal services fee

      There is a statutory basis for this fee. See Tex. Loc. Gov’t Code Ann. §

133.107(a). However, the Bill of Cost indicates that Diaz was assessed the $2.00 fee

at the time he was initially placed on deferred, and again at the time his guilt was

adjudicated. CR 34, 63. For the reasons set forth above, he should not have to pay

this fee twice.

      (n) Administrative transaction fee


                                                                                     25
      This is a fee “for each transaction” relating to the collection of costs imposed

by the court. Tex. Code Crim. Proc. Ann. art. 102.072. The Bill of Cost indicates

that Diaz was assessed the $2.00 fee at the time he was initially placed on deferred,

and again at the time his guilt was adjudicated. CR 34, 63. Assuming each event

constituted a different transaction, this was arguably proper.

      (o) State Elect Filing Fee

      Undersigned counsel can find no statutory basis for the assessment of this fee.

A bill of costs may not charge for a service not expressly provided by law. Tex.

Code Crim. Proc. Ann. art. 103.002. And yet the Bill of Cost indicates that Diaz was

assessed the $5 fee at the time he was initially placed on deferred, and again at the

time his guilt was adjudicated. CR 34, 63. This fee should not have been assessed

either time.

      The bottom line is that Diaz’s court costs should be reduced from $577.00 to

$298.00.




                                       Prayer

      Because the trial court violated Diaz’s right to due process by determining his

sentence based in part on ten “non-violations” of his community supervision, Diaz

requests that his sentence be vacated and the cause remanded for re-sentencing.


                                                                                   26
Alternatively, Diaz requests that the judgment be corrected to delete the deadly

weapon finding and to change the amount owed for court costs from $577.00 to

$298.00.

                                       Respectfully submitted,

                                       /s/ John A. Kuchera
                                       John A. Kuchera
                                       210 N. 6th St.
                                       Waco, Texas 76701
                                       (254) 754-3075
                                       (254) 756-2193 (facsimile)
                                       SBN 00792137
                                       johnkuchera@210law.com
                                       Attorney for Appellant


                              Certificate of Service

      This is to certify that a true and correct copy of the above and foregoing Brief

has this 9th day of November, 2015 been mailed to:

Mr. Bob D. Odom, Assistant District Attorney, P.O. Box 540, Belton, Texas 76513




                         /s/ John A. Kuchera
                         John A. Kuchera,
                         Attorney for Matthew Diaz




                                                                                   27
                    Certificate of Compliance with Rule 9.4

1. This brief complies with the type-volume limitation of Tex. R. App. P. 9.4(i)
because the brief contains 5,738 words, excluding the parts of the brief exempted by
Tex. R. App. P. 9.4(i)(1).


2. This brief complies with the typeface requirements of Tex. R. App. P. 9.4(e) and
the type style requirements of Tex. R. App. P. 9.4(e) because the brief has been
prepared in a proportionally spaced typeface using Microsoft Word 2013 in Times
New Roman, size 14 font.



                         /s/ John A. Kuchera
                         John A. Kuchera,
                         Attorney for Matthew Diaz


Dated: November 9, 2015




                                                                                 28
