Matthew Diaz v. State
03-15-00539-CR
| Tex. App. | Nov 9, 2015Background
- Matthew Diaz pled guilty to aggravated robbery (charging instrument alleged use/exhibition of a firearm) and was placed on ten years deferred-adjudication community supervision with a $1,500 fine and 100 days jail as a condition.
- The deferred-adjudication order included a recorded "deadly weapon: firearm" entry.
- The State filed a First Amended Motion to Adjudicate alleging 19 violations of community supervision, ten of which alleged various financial delinquencies (court costs, fees, program costs, supervision fees, and fine).
- At the June 1, 2015 hearing Diaz pled "true" to the violations; the court initially said it would withhold a finding. At the August 11, 2015 hearing the court adjudicated guilt and sentenced Diaz to five years' imprisonment; the trial court did not orally announce a deadly-weapon finding.
- The written judgment adjudicating guilt nonetheless includes a deadly-weapon finding and assesses $577 in court costs.
- Appellant (Diaz) argues: (1) the sentence was based in part on ten alleged financial "violations" for which the State failed to prove ability to pay (or the court failed to make required findings), violating due process and requiring resentencing; (2) no express oral deadly-weapon finding was made at adjudication so the written deadly-weapon finding should be deleted; and (3) the bill of costs double-assesses many fees, overstating costs by $279.
Issues
| Issue | Plaintiff's Argument (Appellant Diaz) | Defendant's Argument (State) | Held (court action requested by appellant) |
|---|---|---|---|
| 1. Due process / sentence based on alleged community-supervision violations | Ten of 19 alleged violations were financial; plea of "true" does not prove ability to pay; state presented no evidence of willful nonpayment and court made no ability-to-pay or written findings; sentencing relied on misinformation | State relied on plea of "true" and other nonfinancial violations to support adjudication and sentence | Appellant requests vacatur of sentence and remand for resentencing because sentence was based in part on legally invalid "violations" |
| 2. Deadly-weapon finding | Deferred-adjudication order's deadly-weapon entry is a nullity; at adjudication court did not expressly announce a deadly-weapon finding; under recent precedent an express oral finding is required for an affirmative deadly-weapon finding | State may contend a deadly-weapon finding is clear from the indictment or prior order (per Ex parte Huskins) | Appellant requests correction of judgment to delete the deadly-weapon finding so parole eligibility is not extended |
| 3. Over-assessed court costs | Bill of costs ($577) duplicates many fees (district clerk, technology, security, preservation, records management, jury fund, consolidated costs, basic legal services, etc. assessed twice); some fees lack statutory basis (sheriff fee, state elect filing fee) | State would argue statutory authorization for many listed fees or that fees arise from separate transactions | Appellant requests reducing court costs to $298 (eliminating duplicate/unauthorized charges), i.e., a $279 reduction |
| 4. Alternative relief if not resentenced | If resentencing not granted, at minimum delete deadly-weapon finding and correct court costs | N/A | Appellant requests modification of judgment to delete deadly-weapon finding and correct court costs |
Key Cases Cited
- United States v. Tucker, 404 U.S. 443 (Sup. Ct.) (sentence founded in part on materially untrue information requires resentencing)
- Taylor v. State, 131 S.W.3d 497 (Tex. Crim. App.) (when deferred adjudication is set aside by adjudication, the oral pronouncement at adjudication controls over prior written terms)
- Ex parte Huskins, 176 S.W.3d 818 (Tex. Crim. App.) (court stated indictment can make a deadly-weapon allegation clear from the face of the charging paper)
- Ex parte Chavez, 213 S.W.3d 320 (Tex. Crim. App.) (due-process principle that sentencing judgment must not be misinformed)
- Weir v. State, 278 S.W.3d 364 (Tex. Crim. App.) (court costs are intended as nonpunitive recoupment and should not be duplicatively imposed)
- Polk v. State, 693 S.W.2d 391 (Tex. Crim. App.) (distinguishing the judge's duty to enter an affirmative deadly-weapon finding in the judgment)
- Miller-El v. State, 782 S.W.2d 892 (Tex. Crim. App.) (sentencing judge generally has broad discretion within range)
- Gipson v. State, 395 S.W.3d 910 (Tex. App.—Beaumont) (a plea of "true" does not constitute an admission of willful failure to pay; financial delinquencies fall within ability-to-pay statute)