Melissa Ann Mercer v. State
13-13-00150-CR
| Tex. App. | Feb 25, 2015Background
- Melissa Ann Mercer was on community supervision; at revocation the trial court sentenced her to two years in state jail and the written judgment ordered her to reimburse the county $160 for prior periods of confinement in the county jail.
- The Court of Appeals originally held the trial court lacked authority to impose county-jail incarceration costs as a term of community supervision and removed that amount from the judgment.
- The Texas Court of Criminal Appeals vacated that ruling, holding the real issue is whether the trial court could order reimbursement of county-jail confinement costs as part of the sentence after revocation, and remanded for consideration of that question and preservation issues.
- Appellant argues article 42.038 (Reimbursement for Confinement Expense) authorizes reimbursement only in limited circumstances (misdemeanor convictions or as a condition of community supervision when imposed at conviction/supervision) and contains indigency safeguards that were not followed here.
- Appellant asserts she was indigent (sworn affidavit in the record), the trial court made no finding or inquiry into ability to pay, and the reimbursement therefore was unauthorized and unsupported by evidence; she also contends she need not have objected at trial because she lacked notice and because sufficiency preservation is not required for statutory ability-to-pay challenges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court had authority to order reimbursement of county-jail confinement costs as part of sentence after revocation | Mercer: No statutory authority; art. 42.038 applies only in specified misdemeanor contexts and when imposed at conviction or as a supervision condition; reimbursement here was imposed at execution and defendant was indigent | State: (implicit) trial court may include such costs as part of judgment on revocation | Court: Trial court lacked statutory authority under article 42.038 to order the $160 reimbursement under these facts; judgment should be reformed to delete it |
| Whether appellant waived complaint by failing to object at trial | Mercer: No waiver — she lacked notice of the reimbursement until written judgment and art. 42.038/26.05-type ability-to-pay claims do not require trial objection to preserve sufficiency claims | State: (implicit) absence of trial objection could bar appellate review | Court: Objection not required here — appellant entitled to raise the authority/ability-to-pay challenge on appeal |
Key Cases Cited
- Burt v. State, 396 S.W.3d 574 (Tex. Crim. App. 2013) (preservation rule requires opportunity to object)
- Landers v. State, 402 S.W.3d 252 (Tex. Crim. App. 2013) (trial objection allows correction of errors; explains preservation rationale)
- Martinez v. State, 91 S.W.3d 331 (Tex. Crim. App. 2002) (same preservation principles)
- Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010) (court cannot order fees/costs without evidence of ability to pay; no trial objection needed to challenge sufficiency of evidence on ability to pay)