                                                                             ACCEPTED
                                                                         12-14-00163-cr
                                                            TWELFTH COURT OF APPEALS
                                                                          TYLER, TEXAS
                                                                   2/4/2015 11:17:24 PM
                                                                           CATHY LUSK
                                                                                 CLERK

             NUMBER 12-14-00163-CR
                                                        FILED IN
                                                 12th COURT OF APPEALS
IN THE TWELFTH DISTRICT COURT OF APPEALS              TYLER, TEXAS
              TYLER, TEXAS                       2/4/2015 11:17:24 PM
                                                      CATHY S. LUSK
                                                          Clerk

          KATHIE MEADOWS SPEARS,
                       Appellant

                            v.

              THE STATE OF TEXAS,
                        Appellee

    From the 7th District Court of Smith County, Texas
           Trial Cause Number 007-1236-05


                   STATE’S BRIEF


        ORAL ARGUMENT REQUESTED

                 D. MATT BINGHAM
                Criminal District Attorney
                 Smith County, Texas

                   AARON REDIKER
                Assistant District Attorney
          State Bar of Texas Number 24046692
           Smith County Courthouse, 4th Floor
                   Tyler, Texas 75702
                 Phone: (903) 590-1720
                  Fax: (903) 590-1719
           Email: arediker@smith-county.com
                                              TABLE OF CONTENTS

Index of Authorities ....................................................................................................2


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


Summary of Argument ...............................................................................................5


I.ISSUE ONE: While a second, nearly identical judgment entered before mandate had
issued in appellant’s first appeal was void, the original judgment of conviction was still
in full force and effect at the time appellant violated the conditions of her community
supervision, and therefore the trial court did not abuse its discretion in granting the
State’s application to revoke. .......................................................................................6
Standard of Review .....................................................................................................6
Argument ....................................................................................................................6


II.ISSUES TWO AND THREE: The assessment of $300 in appointed attorney fees
should be deleted from the bill of costs.....................................................................10
Argument ..................................................................................................................10


Certificate of Compliance ........................................................................................12


Certificate of Service ................................................................................................12




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                                          INDEX OF AUTHORITIES

Texas Cases

Davis v. State, 195 S.W.3d 708 (Tex. Crim. App. 2006) ............................................6
Ex parte Seidel, 39 S.W.3d 221 (Tex. Crim. App. 2001) ............................................8
Ex parte Spaulding, 687 S.W.2d 741 (Tex. Crim. App. 1985) ...................................8
Flournoy v. State, 589 S.W.2d 705 (Tex. Crim. App. 1979) ......................................6
Hardy v. State, 297 S.W.3d 785 (Tex. App.—Texarkana 2009, pet. ref’d) ................9
Isabell v. State, 494 S.W.2d 572 (Tex. Crim. App. 1973) ..........................................6
Jones v. State, 571 S.W.2d 191 (Tex. Crim. App. 1978) ............................................6
Lundgren v. State, 434 S.W.3d 594 (Tex. Crim. App. 2014)......................................9
Nix v. State, 65 S.W.3d 664 (Tex. Crim. App. 2001) .................................................7
Owen v. State, 352 S.W.3d 542 (Tex. App.—Amarillo 2011, pet. ref’d) .................10
Simon v. State, 442 S.W.3d 581 (Tex. App.—San Antonio 2014, no pet.) .................9
Spears v. State, No. 12-07-00168-CR, 2008 Tex. App. LEXIS 98 (Tex. App.—Tyler
   Jan. 9, 2008, no pet.) ..............................................................................................4
Speth v. State, 6 S.W.3d 530 (Tex. Crim. App. 1999) ................................................7
State v. Moore, 225 S.W.3d 556 (Tex. Crim. App. 2007)...........................................8


Texas Statutes

Tex. Code Crim. Proc. Ann. art. 42.12, § 15(b) .........................................................4


Texas Rules

Tex. R. App. P. 25.2(g) ..............................................................................................9
Tex. R. App. P. 27.1(b) ............................................................................................10
Tex. R. App. P. 34.5(d) ............................................................................................10




                                                           2
                            NUMBER 12-14-00163-CR


            IN THE TWELFTH DISTRICT COURT OF APPEALS
                          TYLER, TEXAS


                          KATHIE MEADOWS SPEARS,
                                  Appellant

                                            v.

                              THE STATE OF TEXAS,
                                    Appellee

               From the 7th District Court of Smith County, Texas
                      Trial Cause Number 007-1236-05


                                  STATE’S BRIEF

TO THE HONORABLE COURT OF APPEALS:

   Comes now the State of Texas, by and through the undersigned Assistant Criminal

District Attorney, respectfully requesting that this Court overrule appellant’s first

alleged issue, and after the assessment of attorney fees is deleted from the bill of costs,

affirm the judgment of the trial court in the above-captioned cause.


                                 STATEMENT OF FACTS

   After a bench trial, the trial court entered the original judgment of conviction

against appellant on 2 April 2007 for the offense of state jail felony theft (Clerk’s R.



                                            3
at 71-72). Appellant received a sentence of confinement for two years in the Texas

Department of Criminal Justice—State Jail Division, probated for a term of five years

under numerous conditions of supervision (Id. at 71-76). This Court affirmed her

conviction on 9 January 2008, issuing its mandate on 27 March 2008 (Id. at 88-90).

Spears v. State, No. 12-07-00168-CR, 2008 Tex. App. LEXIS 98 (Tex. App.—Tyler

Jan. 9, 2008, no pet.) (mem. op., not designated for publication). On 5 March 2008,

three weeks before issuance of the mandate, the trial court entered a second judgment

of conviction, almost identical to the first, with nearly the same conditions of

community supervision (Clerk’s R. at 93-98). Only the dates and names of counsel of

record for each party were changed in the second judgment (Id. at 93-94), and the

specific conditions of community supervision forming the basis of appellant’s

subsequent revocation are identical in each probation order (Id. at 73-76, 95-98). On

25 April 2011, the State filed its first application to revoke appellant’s community

supervision, and appellant pleaded “true” to each alleged violation (Id. at 123-28, 131-

32). Nevertheless, the State’s application to revoke was dismissed on 30 November

2011, and at the end of the following year, the trial court amended the conditions of

supervision, extending the term for an additional five years (Id. at 131-32). See Tex.

Code Crim. Proc. Ann. art. 42.12, § 15(b) (West 2014). On 2 April 2014, the State

filed its second application to revoke (Clerk’s R. at 134-37), which the trial court



                                           4
granted on 13 June 2014, finding that appellant had violated the conditions of her

community supervision by failing to submit mail-in reports and failing to obtain a GED

(Id. at 146-47; I Rep.’s R. at 46).


                               SUMMARY OF ARGUMENT

   As the original judgment of conviction and conditions of community supervision

were not void, the trial court did not abuse its discretion in revoking appellant’s

supervision. The original judgment remained in full force and effect despite the

subsequent void judgment, entered by the trial court before this Court had issued its

mandate in a prior appeal. As the conditions forming the basis of the revocation were

contained in the original judgment and supervision order, the trial court properly

revoked appellant’s community supervision after finding that she had violated them.

Lastly, while neither the judgment revoking appellant’s supervision nor the withdrawal

order show the imposition of any court costs, the bill of costs does reflect the

assessment of $300 in appointed attorney fees. Thus, the Court should order the trial

court clerk to delete the appointed attorney fees from the bill of costs, or abate the

appeal and remand the cause for entry of an appealable order by the trial court.




                                          5
I. ISSUE ONE: While a second, nearly identical judgment entered before
mandate had issued in appellant’s first appeal was void, the original judgment
of conviction was still in full force and effect at the time appellant violated the
conditions of her community supervision, and therefore the trial court did not
abuse its discretion in granting the State’s application to revoke.

                               STANDARD OF REVIEW

   "The only question legitimately before this Court on a probation revocation

proceeding is whether or not there was an abuse of discretion in the trial court,"

Flournoy v. State, 589 S.W.2d 705, 709 (Tex. Crim. App. 1979) (quoting Isabell v.

State, 494 S.W.2d 572, 573-574 (Tex. Crim. App. 1973)). Even one sufficient ground

for revocation will support the trial court's order revoking probation. Jones v. State,

571 S.W.2d 191, 193 (Tex. Crim. App. 1978).


                                     ARGUMENT

   In his first issue, appellant argues that the judgment and supervision order entered

on 5 March 2008 were void, and the trial court’s subsequent revocation of her

community supervision was therefore an abuse of discretion (Appellant’s Br. 5, 7-8).

As the Court of Criminal Appeals explained in Davis v. State, 195 S.W.3d 708, 710

(Tex. Crim. App. 2006):

      In Basaldua v. State, we recognized, in the "regular" probation context, that the
      Legislature has authorized appeal in two instances: (1) from an order granting
      probation and (2) from an order revoking probation. There is no legislative
      authority for entertaining a direct appeal from an order modifying the conditions
      of community supervision. A complaint about a modification can, however, be


                                          6
      raised in an appeal from a revocation if the validity of the revocation depends
      on the validity of the modification. (footnotes omitted).

However, “[a] complaint about a condition that was not a basis for revocation,” will

not be considered on direct appeal. Id. at 711. “[A] defendant can raise on appeal

from a revocation proceeding an error in the original plea hearing if the error would

render the original judgment void.” Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App.

2001). “The sentence and the conditions of community supervision are each separate

parts of the ‘judgment.’” Speth v. State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999).

In Nix, the Court of Criminal Appeals provided a nearly exhaustive list of errors

resulting in a void judgment:

      (1) the document purporting to be a charging instrument (i.e. indictment,
      information, or complaint) does not satisfy the constitutional requisites of a
      charging instrument, thus the trial court has no jurisdiction over the defendant,
      (2) the trial court lacks subject matter jurisdiction over the offense charged, such
      as when a misdemeanor involving official misconduct is tried in a county court
      at law, (3) the record reflects that there is no evidence to support the conviction,
      or (4) an indigent defendant is required to face criminal trial proceedings
      without appointed counsel, when such has not been waived, in violation of
      Gideon v. Wainwright.

Nix, 65 S.W.3d at 668 (footnotes omitted). Further, “for a judgment to be void, the

record must leave no question about the existence of the fundamental defect. If the

record is incomplete, and the missing portion could conceivably show that the defect

does not in fact exist, then the judgment is not void, even though the available portions

of the record tend to support the existence of the defect.” Id. at 668-669. “A void


                                           7
judgment is a nullity from the beginning, and is attended by none of the consequences

of a valid judgment. It is entitled to no respect whatsoever because it does not affect,

impair, or create legal rights.” Ex parte Seidel, 39 S.W.3d 221, 225 (Tex. Crim. App.

2001) (quoting Ex parte Spaulding, 687 S.W.2d 741, 745 (Tex. Crim. App. 1985)

(Teague, J., concurring)).

      Regarding the second voiding defect listed in Nix, “the subject-matter jurisdiction

of the trial court over the case and the defendant extends, should the defendant timely

file a sufficient notice of appeal, to the point in time at which the record is filed in the

appellate court.” State v. Moore, 225 S.W.3d 556, 568 (Tex. Crim. App. 2007). As

the trial court lacked jurisdiction to enter the 2008 judgment and supervision order

before this Court had issued its mandate in the appeal of the original judgment of

conviction, the 2008 judgment appears to be void. However, both the original

supervision order and the 2008 order contained the following identical conditions

(Clerk’s R. at 73-76, 95-98):

          If supervision of your case is transferred from Smith County, send completed,
          dated and signed mail-in reports to your Smith County Supervision Officer by
          the 15th of each month1.

          Obtain a GED within 1 year and provide proof to your supervision officer for
          which you will receive 50 hours credit for Community Service Restitution2.



1
    Condition 32 in the original supervision order and condition 33 in the 2008 order.
2
    Condition 59 in the original supervision order and condition 60 in the 2008 order.


                                                   8
At the revocation hearing on 13 June 2014, and based on her pleas of “true”, the trial

court found that appellant had violated both of these conditions as alleged in the State’s

application to revoke (Id. at 134-37, 146-47; I Rep.’s R. at 46). The conditions forming

the basis for the revocation of appellant’s community supervision were thus present in

the original judgment (Clerk’s R. at 73-76). “[I]f a defendant files a timely and

effective notice of appeal, that filing stays the commencement of the community-

supervision term imposed until appellate mandate has issued affirming the judgment

of conviction.” Lundgren v. State, 434 S.W.3d 594, 598 (Tex. Crim. App. 2014). See

Tex. R. App. P. 25.2(g). After this Court issued its mandate on 27 March 2008,

Conditions 32 and 59 in the original judgment remained in full force and effect and

were unaffected by the void judgment subsequently entered by the trial court. See

Hardy v. State, 297 S.W.3d 785, 792 (Tex. App.—Texarkana 2009, pet. ref’d)

(original order placing defendant on community supervision in full force and effect

despite subsequent void order releasing him from supervision). Cf. Simon v. State, 442

S.W.3d 581, 585 (Tex. App.—San Antonio 2014, no pet.) (modification of

supervision order before mandate issued was void, and because subsequent revocation

based solely on violation of that condition, trial court abused its discretion). Therefore,

the trial court did not abuse its discretion in revoking appellant’s community

supervision based on these conditions, and her first alleged issue should be overruled.



                                            9
II. ISSUES TWO AND THREE: The assessment of $300 in appointed attorney
fees should be deleted from the bill of costs.

                                        ARGUMENT

   In her second and third issues, appellant argues that the trial court erred by

imposing appointed attorney fees as court costs and that the Smith County District

Clerk erred by including these fees in the itemized bill of costs (Appellant’s Br. 9-15).

The record does not reflect the trial court’s imposition of any court costs following the

revocation of appellant’s supervision, either in the judgment or the withdrawal order

(Clerk’s R. at 146-51). However, the bill of costs does show the assessment of $300

in appointed attorney fees as court costs by the District Clerk (Id. at 151-52). While

the bill of costs itself does not appear to be a final, appealable order, and the appellant’s

claims are most likely premature, this Court may abate the appeal, remand the cause

for entry of an appealable order granting or denying relief on the erroneous bill of

costs, and then order the trial court clerk to prepare and file a corrected bill, if

necessary. See Tex. R. App. P. 27.1(b), 34.5(d); Owen v. State, 352 S.W.3d 542, 548

(Tex. App.—Amarillo 2011, pet. ref’d) (appeal abated and cause remanded for entry

of final, appealable order by trial court and trial court clerk subsequently ordered to

prepare and file a corrected bill of costs and withdrawal notification).




                                             10
                                      PRAYER

   WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that the

Court overrule appellant’s first issue, and after the assessment of attorney fees is

deleted from the bill of costs, affirm the judgment of the 7th District Court of Smith

County, Texas, in the above-captioned cause.

                                               Respectfully submitted,

                                               D. MATT BINGHAM
                                               Criminal District Attorney
                                               Smith County, Texas


                                               /s/ Aaron Rediker
                                               Aaron Rediker
                                               Assistant District Attorney
                                               SBOT #: 24046692
                                               100 North Broadway, 4th Floor
                                               Tyler, Texas 75702
                                               Office: (903) 590-1720
                                               Fax: (903) 590-1719 (fax)
                                               arediker@smith-county.com




                                         11
                           CERTIFICATE OF COMPLIANCE

   Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned attorney

certifies that the word count for this document is 1,900 words as calculated by

Microsoft Word 2013.


                                                /s/ Aaron Rediker
                                                Aaron Rediker



                              CERTIFICATE OF SERVICE

   The undersigned hereby certifies that on this 4th day of February 2015, the State’s

Brief in the above-numbered cause has been electronically filed, and a legible copy of

the State's Brief has been sent by email to James W. Huggler Jr., attorney for appellant,

at jhugglerlaw@sbcglobal.net.


                                                /s/ Aaron Rediker
                                                Aaron Rediker




                                           12
