Eugene White v. State
10-15-00146-CR
| Tex. App. | Aug 13, 2015Background
- Eugene White was convicted of possession of a Penalty Group 1 controlled substance (over 1 gram but under 4 grams) in a drug-free zone; sentenced to 7 years, suspended, and placed on community supervision.
- The State moved to revoke community supervision; the trial court revoked and sentenced White to 7 years' imprisonment.
- The revocation judgment assessed $5,541 in attorney’s fees as court costs and ordered the sentence to run consecutively with a Harris County conviction.
- White appealed, challenging (1) the form of the written judgment, (2) assessment of attorney’s fees as court costs, and (3) the mandatory cumulation/consecutive-sentence order.
- The clerk’s record was supplemented with a bill of costs during the appeal.
Issues
| Issue | White's Argument | State's Argument | Held |
|---|---|---|---|
| Whether the written revocation judgment must be modified to reflect specific Health & Safety Code subsections | Judgment should list the precise statutory sections of conviction | Judgment need only describe the offense as required by Code of Criminal Procedure | Overruled — judgment sufficiently identifies the offense |
| Whether evidence supports assessment of attorney’s fees as court costs | Fees were improperly assessed; no evidence fee was ordered or that White could pay | Bill of costs shows fees due; argued proper to include | Sustained — insufficient evidence to support assessment; fees removed |
| Whether mandatory cumulation under §481.134(h) applied to require consecutive sentencing | Mandatory cumulation not supported because convictions fall under §481.134(c) | Initially argued cumulation proper; later conceded statute did not require cumulation | Sustained — mandatory cumulation inapplicable; order deleted |
| Whether trial court intended to run sentences consecutively absent statutory mandate | Court did not verbally pronounce consecutive sentence at revocation | State conceded court did not pronounce consecutive running | Sustained — cumulation order deleted |
Key Cases Cited
- Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014) (a missing bill of costs can be added via supplemental clerk's record)
- Wiley v. State, 410 S.W.3d 313 (Tex. Crim. App. 2013) (attorney’s fees not part of community supervision judgment unless specified)
- Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010) (insufficient evidence supports vacating assessed attorney’s fees)
- Moore v. State, 371 S.W.3d 221 (Tex. Crim. App. 2012) (interpretation of mandatory cumulation provisions in Health & Safety Code)
- Ex parte Vasquez, 712 S.W.2d 754 (Tex. Crim. App. 1986) (court must pronounce consecutive sentences for cumulation to be effective)
The judgment is affirmed as modified: delete the $5,541 attorney’s fees assessment as court costs and delete the cumulation order linking trial court no. 31775 with trial court no. 136209501010.