Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 11/20/2015 11:00:08 AM JEFFREY D. KYLE Clerk No. 03-15-00539-CR THIRD COURT OF APPEALS 11/20/2015 11:00:08 AM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00539-CR *1 ACCEPTED [7922395] CLERK IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT OF TEXAS AT AUSTIN, TEXAS ********
MATTHEW DIAZ VS.
THE STATE OF TEXAS ********
ON APPEAL FROM THE 426th DISTRICT COURT OF BELL COUNTY, TEXAS Cause No. 72269
****** STATE’S BRIEF ******
HENRY GARZA
DISTRICT ATTORNEY BOB D. ODOM
ASSISTANT DISTRICT ATTORNEY P.O. Box 540
Belton, Tx 76513 (254) 933-5215 FAX (254) 933-5704 DistrictAttorney@co.bell.tx.us SBA No. 15200000 Oral Argument Not Requested
TABLE OF CONTENTS ITEM PAGE
Index of Authorities ………………………………………………………………… 4
Statement Regarding Oral Argument ……………………………………….. 6
Statement of the Case ……………………………………………………………… 6
Statement of Facts …………………………………………………………………… 7
Summary of State’s Argument ………………………………………………….. 10
Argument and Authorities ……………………………………………………….. 11
First Issue on Appeal ……………………………………………………… 11 TRIAL COURT ERR IN FAILING TO CONDUCT HEARING ON ABILITY TO PAY COURT COSTS AND FEES EVEN THOUGH APPELLANT PLED TRUE TO OTHER ALLEGATIONS IN MOTION TO ADJUDICATE NOT INVOLVING FAILURE TO PAY?
Standard of Review ………………………………………………. 12 Application and Analysis ………………………………………. 13 Second Issue on Appeal …………………………………………………. 15 TRIAL COURT ERR IN INCLUDING DEADLY WEAPON FINDING IN JUDGMENT ADJUDICATING GUILT?
Application and Analysis ………………………………………. 15 *3 PAGE Third Issue on Appeal …………………………………………………….. 21 TRIAL COURT ERR IN ORDERING PAYMENT OF COURT COSTS AND FEES IN ACCORDANCE WITH THE BILL OF COSTS?
Standard of Review ………………………………………………. 21 Application and Analysis ………………………………………. 22 Prayer ……………………………………………………………………………………. 26
Certificate of Compliance with Rule 9 ………………………………………. 27
Certificate of Service ……………………………………………………………….. 27
INDEX OF AUTHORITIES CASES PAGE
Cardona v. State , 665 S.W.2d 492 (Tx. Cr. App. 1984) …………………. 12
Gipson v. State , 428 S.W.3d 107 (Tx. Cr. App. 2014) ……………………. 13
Guthrie-Nail v. State , __S.W.3d__, No. PD-0125-14, 2015 ……………. 18-20
Tex.Crim. App. LEXIS 917 (Tx. Cr. App. Sept. 16, 2015) Hall v. State, __S.W.3d__, No. 10-14-00205, 2015 Tex. …………………. 25
App. LEXIS 11128, (Waco 10 th Dist. 2015) Ex Parte Huskins , 176 S.W.3d 818 (Tx. Cr. App. 2005) ………………… 17-18
Ireland v. State , No. 03-14-00615-CR, 2015 Tex. App. …………………21, 24
LEXIS 8404 (Tx. App. Austin 3 rd Dist. 2015 no pet.), not designated for publication.
Johnson v. State , 423 S.W.3d 385 (Tx. Cr. App. 2014) …………………… 21
Jones v. State, 589 S.W.2d 419 (Tx. Cr. App. 1979) ……………………….. 12
Moore v. State , 605 S.W.2d 924 (Tx. Cr. App. 1980) ……………………... 12
Moses v. State , 590 S.W.2d 469 (Tx. Cr. App. 1979) ……………………… 13
Patterson v. State , No. 05-13-01567-CR, 2015 Tex. App. ……………… 14
LEXIS 753 (Tx. App. Dallas 5 th Dist. 2015 no pet.), not designated for publication.
Rickels v. State , 202 S.W.3d 759 (Tx. Cr. App. 2006) …………………….. 12
PAGE OTHER
Texas Penal Code
Section 29.03(a)(2) ………………………………………………………… 16 Texas Code of Criminal Procedure
Article 42.12(5)(b) …………………………………………………………. 12 Article 42.12(21)(c) ………………………………………………………… 13 Article 102.011 ………………………………………………………………. 23 Texas Government Code
Section 51.851 ………………………………………………………………… 24 *6 STATEMENT REGARDING ORAL ARGUMENT
The State does not request oral argument.
STATEMENT OF THE CASE
The Appellant, Matthew Diaz, was charged by indictment with the offense of aggravated robbery with a deadly weapon. (CR-4). Pursuant
to a plea bargain with the State (CR-200), he entered a plea of guilty to
the offense as charged in the indictment and was placed on a ten year
deferred adjudication community supervision on March 31, 2014. (CR-
30; RR Supp-11-13).
The State subsequently filed its First Amended Motion to Adjudicate (CR-46) and that motion was heard by the trial court on June
1, 2015. (RR2). The Appellant entered pleas of true to each of the 19
allegations contained in the motion to adjudicate (RR 2-9). His written
stipulation, judicially confessing to all of the allegations in the motion
and that he was the person placed on deferred adjudication (See State’s
Exhibit 1) was admitted without objection. (RR2-10). The trial court
found that it had enough evidence to find that the Appellant had
violated the terms and conditions of his deferred adjudication and
recessed the hearing. (RR 2-11).
At the subsequent hearing on punishment the trial court found all of the allegations in the State’s Motion to Adjudicate to be true and
entered a finding of guilty of the offense of aggravated robbery. The
court assessed punishment at five years in the Texas Department of
Criminal Justice Institutional Division and ordered the payment of all
court costs in the case. (CR-30; RR3-16).
The Appellant gave timely notice of appeal (CR-65) and the trial court certified his right to do so. (CR-58).
STATEMENT OF FACTS
Because the Appellant raises three issues on appeal, none of which contests the sufficiency of the evidence as to his guilt of the
charged offense of aggravated robbery, the State will not recite the facts
of the offense.
In this case the indictment charged that the Appellant, acting individually as well as a party with a named individuals “….while in the
course of committing theft of property and with the 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 then and there use or exhibit a
deadly weapon, to-wit: a firearm.” (CR-4).
During the plea proceeding the Appellant entered a plea of guilty to the charge of aggravated robbery and the trial court took judicial
notice of the Appellant’s judicial confession (RR. Supp-13). In that
judicial confession the Appellant acknowledged that he had read the
indictment and had committed each and every act alleged therein and
that all of the alleged facts were true and correct. He specifically
admitted that “All deadly weapon allegations are true and correct.” (CR-
25).
During the plea proceedings the trial court inquired as to whether the Appellant understood the allegations of the use or exhibition of a
deadly weapon and the effect of those allegations, and he indicated that
he did. (RR. Supp.-9, 10).
The trial court found the evidence sufficient to support a finding of guilty, but withheld such a finding and placed the Appellant on a
deferred adjudication probation in keeping with the plea bargain, and
fined him $1,500.00 (RR. Supp.-18). In cautioning the Appellant con-
cerning the need to abide by the terms and conditions of his deferred
adjudication, the trial court expressly noted that there was an
affirmative finding of a deadly weapon and the Appellant again
indicated that he understood. (RR. Supp. -17). The trial court’s Order of
Deferred Adjudication recited that there was an affirmative finding of
the use of a deadly weapon, a firearm. (CR-30).
The State subsequently filed its First Amended Motion to Adjudicate. That motion contained 19 paragraphs, listed as paragraphs
A through S, each alleging separate violations of the terms and
conditions of the Appellant’s deferred adjudication. Eight of those
allegations, paragraphs J through Q, alleged failure to pay fines, court
costs and various fees in connection with his deferred adjudication as
ordered by the court. The remaining paragraphs charged violations of
other terms and conditions including the commission of a criminal
offense (paragraph A); as well as positive tests for cocaine, the use of
marijuana, failure to complete drug and alcohol screening, failure to
report, failure to complete community service hours, and failure to
attend the violence intervention program as ordered. (CR46-48).
At the hearing on the motion to adjudicate the Appellant admitted that he was the person previously placed upon deferred adjudication in
this case for the felony offense of aggravated robbery and that included
a finding of a deadly weapon. (RR2-5). The Appellant then entered
pleas of true to the matters alleged in paragraphs A through S of the
State’s First Motion to Adjudicate. (RR2-9). State’s exhibit 1, the
Appellant’s written stipulation of evidence, reiterating that he was
entering pleas of true to all of the allegations in the motion and
judicially confessing, was admitted into evidence without objection.
(RR2-10).
At the subsequent punishment hearing the trial court stated that it was finding that the allegations in the State’s Motion to Adjudicate
were true, found the Appellant guilty, and assessed his punishment at 5
years in prison. (RR3-16).
The Judgment Adjudicating Guilt included an affirmative finding of the use of a deadly weapon, a firearm. (CR-60).
SUMMARY OF STATE’S ARGUMENT
The Appellant pled true to all 19 allegations in the motion to adjudicate that included 9 unrelated to the failure to pay court costs or
fees. A plea of true alone is sufficient to support a finding that the terms
and conditions of the deferred adjudication were violated and a proof of
a single violation is sufficient for revocation and adjudication.
Therefore, evidence as to ability to pay court costs and fines on other
allegations was unnecessary in order to support the judgment of
conviction.
The trial court affirmatively found the use and exhibition of a deadly weapon at every stage of the proceedings prior to the oral
pronouncement of sentence. In a bench trial it is unnecessary to such a
finding to be included in that pronouncement and it may be properly
part of the written judgment of conviction.
All of the court costs and fees assessed after the judgment adjudicating guilt were authorized by statute and part of the official bill
of costs. They were properly included in the order and the Appellant
may rely upon the payment records of the district clerk to determine
any credit he may have for previous payments.
ARGUMENT AND AUTHORITIES
First Issue on Appeal
Did the trial court err in revoking the Appellant’s deferred adjudication by failing to conduct a hearing on his ability to make the
required payments as alleged in ten of the paragraphs of the motion to
revoke, when he also entered pleas of true to nine other allegations not
involving the failure to pay?
Standard of Review
A trial court’s Judgment Adjudicating Guilt is reviewed in the same manner as a revocation hearing. Article 42.12(5)(b), Texas Code of
Criminal Procedure. When reviewing the trial court’s decision to revoke
community supervision imposed under a deferred adjudication order
the sole question is whether the court abused its discretion. Rickels v.
State , 202 S.W.3d 759, 763 (Tx. Cr. App. 2006). The State bears the
burden of proving that the probationer violated the terms and
conditions of the deferred adjudication by a preponderance of the
evidence as alleged in the motion to revoke. Where more than one
violation of the terms and conditions are alleged, a single violation is
adequate and the order of revocation must be affirmed if at least one
sufficient ground alleged supports the trial court’s order. Moore v. State ,
605 S.W.2d 924, 926 (Tx. Cr. App. 1980).
The trial court abuses its discretion in revoking a deferred adjudication community supervision only if the State fails in its burden
of proof as to every ground alleged. Cardona v. State , 665 S.W.2d 492,
494 (Tx. Cr. App. 1984). The evidence supporting the ruling of the court
must be viewed in the light most favorable to that ruling. Jones v. State ,
589 S.W.2d 419, 421 (Tx. Cr. App. 1979). A plea of true, standing alone,
is sufficient to support a trial court’s revocation order. Moses v. State ,
590 S.W.2d 469, 470 (Tx. Cr. App. 1979).
Application and Analysis
Although he attempts to couch it in terms of an alleged due process violation by failing to conduct a hearing on his ability to pay [1]
the various costs, fees, and fines that he was alleged to have failed to pay
in paragraphs J through Q of the motion to revoke [2] ; the Appellant
actually complains that the evidence to support the trial court’s findings
with respect to those allegations was not sufficient. Even though he
entered pleas of true to all of those allegations, he notes that the court
did not conduct a further hearing, nor did the State offer additional
evidence as to his ability to pay.
What the Appellant ignores, however, is that paragraph A alleged a subsequent violation of the law while on deferred adjudication;
paragraphs B and C alleged the use of cocaine and marijuana; paragraph
D alleged failure to complete the Drug Offenders Course as ordered;
paragraphs E and F alleged failure to report; paragraphs G through I
*14 alleged violation of the rules and regulations of the community
supervision department; and paragraphs R and S charge failure to
participate in and complete community service activities as ordered.
None of these allegations involve the failure to pay costs or fees.
In each case the Appellant entered pleas of true to those allegations of
violations of the terms and conditions of his deferred adjudication. He
does not contest the voluntariness of those pleas or that they
constituted violations of the terms and conditions imposed by the trial
court.
The State was only required to prove one violation as alleged in the motion to adjudicate in order to sustain the trial court’s Judgment
Adjudicating Guilt. The Appellant’s plea of true, standing alone, was
sufficient to do so. Even discounting the failure to pay allegations, the
State, based upon the Appellant’s pleas of true, proved nine other
violations of the terms and conditions of his deferred adjudication. That
being the case the Court need not reach the question of proof of his
ability to pay. See Patterson v. State , No. 05-13-01567-CR, 2015 Tex.
App. LEXIS 753 (Tx. App. Dallas 5 th Dist. 2015 no pet.), not designated
for publication. (Court of Appeals need not reach question of failure to
prove ability to pay where the defendant pled true to other allegation in
motion to revoke).
Second Issue on Appeal
Did the trial court err in including a finding of the use and exhibition of a deadly weapon, a firearm, in its Judgment Adjudicating
Guilt?
Application and Analysis
The Appellant complains that the trial court’s written Judgment Adjudicating Guilt included the recitation that a deadly weapon, a
firearm was used in the commission of the offense. He says that the fact
that the trial court stated at the conclusion of the adjudication hearing :
“THE COURT: 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.” (RR3-16);
shows that there was no affirmative finding of the use and exhibition of
a deadly weapon.
The indictment in this case charged that the Appellant committed the offense of aggravated robbery by threatening and placing the victim
in fear of serious bodily injury or death, and that he used or exhibited a
deadly weapon, to-wit: a firearm to do so. (CR-4). The use of the
firearm was the element of the offense making it aggravated robbery.
Section 29.03(a)(2). The Appellant plead guilty to the offense of
aggravated robbery as charged in the indictment. (RR. Supp.-11-13).
His judicial confession specifically affirmed that the deadly weapon
allegations in the indictment were true and correct. (CR-25). In being
questioned by the trial court the Appellant confirmed that he
understood the effect upon him of the deadly weapon finding. (RR.
Supp. -17). The order placing the Appellant on deferred adjudication
expressly included a finding that a deadly weapon, a firearm had been
used and exhibited in the commission of the offense. (CR-30).
At the revocation hearing the Appellant admitted to the trial court that he had been placed on deferred adjudication for the offense of
aggravated robbery in the case and that there had been an affirmative
finding of a deadly weapon. (RR2-5). When the trial court ruled upon
the motion to adjudicate it found all of the allegations in the motion to
adjudicate to be true and, although the court did not mention the deadly
weapon finding at that time, it found the Appellant guilty of the offense
of aggravated robbery, which necessarily included a finding that the
element that made the offense aggravated robbery, the use of the deadly
weapon was true. The Judgment Adjudicating Guilt recited that the trial
court had found that a deadly weapon, a firearm, had been used in the
commission of the offense, precisely as had the previous order placing
the Appellant on deferred adjudication.
In Ex Parte Huskins , 176 S.W.3d 818 (Tx. Cr. App. 2005) almost an identical question presented itself. The defendant had been placed on
deferred adjudication for the offense of deadly conduct after his plea of
guilty. Later, upon the State’s motion, the trial court adjudicated guilt an
orally pronounced sentence without then announcing a deadly weapon
finding. Huskins at 819. The Court of Criminal Appeals noted that the
indictment included an allegation of the use and exhibition of a deadly
weapon and that, when the defendant pled guilty to that offense he
confessed to committing the offense charged in the indictment. Thus, by
properly admonishing the defendant and accepting his plea of guilty, the
trial court necessarily determined that a deadly weapon had been used
in the commission of the offense. Noting that a deadly weapon finding,
although affecting eligibility for parole and how the sentence is served,
does not alter the range of punishment, the appellate court held that the
trial court is not required to orally announce such a finding at
sentencing so long as the allegation of the use of a deadly weapon is
clear from the face of the indictment. The Court found that the deadly
weapon finding was properly included in the written judgment after
adjudication of guilt. Huskins at 820-21.
In this case the allegation of the use of a deadly weapon was not only clearly set out in the indictment, it was the element included in that
indictment that made the charge against the Appellant the offense of
aggravated robbery. The Appellant obviously had notice of the deadly
weapon allegation because he pled guilty to the offense charged,
judicially confessed to the use of the deadly weapon as alleged, and
confirmed it to the court during his initial plea of guilty and during the
adjudication hearing.
The Appellant, however, argues that Ex Parte Huskins “has been implicitly disapproved” by the Court of Criminal Appeals” in Guthrie-
Nail v. State , No. PD-0125-14, 2015 Tex. Crim. App. LEXIS 917 (Tx. Cr.
App. September 16, 2015). However, not only did the Court of Criminal
Appeals not disapprove Huskins , implicitly or otherwise, it actually cited
Huskins as authority for the proposition that in a bench trial a deadly
weapon finding need not be included in the oral pronouncement of
sentence, if it is alleged in the charging instrument and, thus, may be
included for the first time in the written judgment. Guthrie-Nail , Op. at
pg. 6, FN 13.
In Guthrie-Nail the indictment charged the defendant with conspiracy to commit capital murder by causing the death of the victim
with a firearm. The defendant entered a plea of guilty and judicially
confessed to the offense as charged in the indictment. At the plea
hearing, however, the judge never referred to the deadly weapon and
the plea papers did not make any mention of the weapon. The written
judgment of the trial court said “N/A” in the space provided for findings
on a deadly weapon. More than two months later, the trial court
entered a judgment nunc pro tunc changing “N/A” to “Yes, a firearm”.
Guthrie-Nail op. at pg. 4. The Court noted that a trial court is free to
decline to find the use of a deadly weapon and, because the record did
not establish “that a deadly-weapon finding was made at or before the
time the written judgment was signed” the case was remanded for a
hearing on the nunc pro tunc. Guthrie-Nail op. at pg. 8.
Guthrie-Nail is clearly distinguishable from both Huskins and the present case. In this case findings of the use of a deadly weapon before
the time of the written judgment are all over the record from the initial
plea resulting in the deferred adjudication to the order placing the
Appellant on deferred adjudication, and in the hearing on the motion to
adjudicate the trial court again referred to the deadly weapon
allegations in the indictment and to its finding of the use and exhibition
of a deadly weapon and its effect. The Appellant plead guilty to the
offense charged which included a necessary element of the use of a
deadly weapon, judicially confessed to the use of such a weapon as
alleged. The Appellant confirmed to the court that he was fully aware of
the deadly weapon allegations when he entered his plea of guilty to the
offense and when he pled true to the allegations in the motion to
adjudicate. In fact, the only time the trial court did not specifically
mention the deadly weapon was when it found the Appellant guilty of
aggravated robbery and assessed punishment and, as provided in
Huskins and reaffirmed by the Court of Criminal Appeals in Guthrie-Nail ,
there was no requirement that the oral pronouncement include that
finding. Further, the notation that the court had found the use of a
deadly weapon, a firearm, appeared in both the order placing the
Appellant on deferred adjudication and the subsequent Judgment
Adjudicating Guilt. There was no question as to the propriety of a nunc
pro tunc order as in Guthrie-Nail where, it must be remembered, the
Court only remanded the case to the trial court for a nunc pro tunc
hearing.
The trial court properly included in its judgment the finding that the Appellant had used a deadly weapon, a firearm in the commission of
the offense as such a finding was clearly made by the court at every
stage of the proceedings and that finding was properly included even
though it was not in the oral pronouncement of sentence.
Third Issue on Appeal
Did the trial court err in assessing court costs in accordance with the Official Bill of Cost of the Bell County District Clerk?
Standard of Review
Court costs are pre-determined, legislatively mandated obligations resulting from conviction. When the imposition of court
costs is challenged on appeal it is reviewed to determine if there is a
basis for the costs, not to determine if sufficient evidence to prove each
cost was offered at trial. Johnson v. State, 423 S.W.3d 385, 389, 390 (Tx.
Cr. App. 2014); Ireland v. State , No. 03-14-00615-CR, 2015 Tex. App.
LEXIS 8404 (Tx. App. Austin 3 rd Dist. 2015 no pet.), not designated for
publication.
Application and Analysis
In the Judgement Adjudicating Guilt the trial court assessed court cost in the amount of $577.00. (CR-60). This amount was that set out in
the Official Bill of Costs (CR-64). The Appellant complains about
$279.00 included in that total, either because he believes there to have
been no statutory authority for the assessment, or because he believes
that he is being doubly charged because the same item or category
appeared in the bill of costs filed after he was placed on deferred
adjudication but prior to the adjudication of guilt, apparently assuming
that those included earlier actually had been paid.
Those court costs that were included in the bill of costs at the time he was placed on deferred adjudication and in the bill of costs at the
time of the judgment adjudicating guilt which he claims that, although
statutorily authorized, constitute double assessments are as follows:
District Clerk Fee $40.00 Sheriff Fee $25.00 Clerk Court Technology Fee $ 4.00 Courthouse Security Fee $ 5.00 District Clerk Record Preservation Fee $ 2.50 Records Management Fee $ 22.50 *23 Jury Service Fee $ 4.00 Judiciary Support Fee $ 6.00 Consolidated Court Cost $133.00 Basic Criminal Legal Services Fee $ 2.00 In each of these costs and fees the Appellant concedes that they are
authorized by statute and complains only that they were included in
both of the bills of cost filed at various stages of this case.
As to two items of cost, however, the Appellant contends that they are not authorized by statute; as well as being double assessments.
They are:
Sheriff Fee $ 25.00 State Electronic Filing Fee $ 5.00 As to the allegations that the Sheriff’s Fee and State Electronic Filing Fee are not authorized by statute, the Sheriff’s Fee is indeed
authorized by Article 102.011 of the Texas Code of Criminal Procedure .
The Appellant claims, nevertheless, that the fee is not authorized
because it is not itemized to specify the services set out in the article.
This, however, is a challenge to the sufficiency of the evidence, which is
not the question on an appeal where court costs are challenged.
As to the State Electronic Filing Fee, counsel for Appellant states that he is unable to find a statutory basis for that fee. That same
contention was raised in Ireland , supra. This Court pointed out,
however, that Section 51.851 of the Texas Government Code, entitled
“Electronic Filing Fee” provides for the payment of $5.00 as court cost
on conviction of any criminal offense, to be deposited with the State
Comptroller in the electronic filing system fund. Ireland , op. at pgs. 4-5.
At the time that the Appellant was placed on deferred adjudication the trial court ordered that he pay court costs and fees in
the amount of $251.00 (CR-32). The bill of cost included those items set
out above in that total. (CR-34). In the Judgment Adjudicating Guilt the
court ordered payment of court costs in the amount of $577.00 (CR-60).
The bill of costs at that time included those same categories, however, it
also reflected additional costs apparently accrued during the deferred
adjudication. It must be noted that on that bill of cost the date when the
particular item of cost was added to the bill is noted and that list clearly
includes those in the first bill of cost. It also recites that in each case the
amount listed is the unpaid balance at the time of the filing of the bill,
which was three days after the judgement. Nothing in the record
indicates that the Appellant is being billed for amounts previously paid.
It is respectfully submitted that where, as here, unpaid costs are carried over from a community supervision and included in the
judgment of conviction, the only practical procedure is for the judgment
to impose the original and any additional court cost and fees. Then the
Appellant can certainly show previous payment and receive credit at
any time and may also rely upon the records of payment maintained by
the court clerk. [3]
All of the items included in the bill of cost and ordered to be paid in the Judgement Adjudicating Guilt are authorized by statute. Merely
because those items were also included in an earlier bill at the time of
the assessment of deferred adjudication does not, in and of itself, show
that they have been previously paid or are duplicitous. It is obvious
from the second bill of cost that some additional costs and fees had
*26 accrued during the community supervision or as a result of the
revocation proceeding. All are listed by the clerk as unpaid. It is not
reasonable to delete the order for the payment of items included on the
bill of cost simply because the same category of cost was also included
on the first bill. Clearly the only practical way is for the court to order
payment of the costs as set out in the bill and then to allow the
Appellant to rely upon the records of payment in the clerk’s office to
show any credits for payments he may have made.
PRAYER
The State of Texas respectfully prays that the judgment of conviction herein be, in all things, be affirmed.
Respectfully Submitted, HENRY GARZA District Attorney /s/ Bob D. Odom BOB D. ODOM Assistant District Attorney P.O. Box 540 Belton, Tx 76513 (254) 933-5215 FAX (254) 933-5704 DistrictAttorney@co.bell.tx.us SBA No. 15200000 *27 CERTIFICATE OF COMPLIANCE WITH RULE 9
This is to certify that the State’s Brief is in compliance with Rule 9 of the Texas Rules of Appellate Procedure and that portion which must be
included under Rule 9.4(i)(1) contains 4079 words.
/s/ Bob D. Odom BOB D. ODOM Assistant District Attorney CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of this brief has been served upon, John A. Kuchera, Counsel for Appellant, by electronic
transfer via Email, addressed to him at johnkuchera@210law.com on
this 20 th day of November, 2015.
/s/ Bob D. Odom BOB D. ODOM Assistant District Attorney
[1] See Article 42.12(21)(c), Code of Criminal Procedure, requiring the State to prove that the accused was able to pay, but did not do so, in order to revoke community supervision for failure to pay costs, fees, and attorney’s fees.
[2] The failure to pay fines, as alleged in paragraph K, is not subject to the requirements of 42.12(21)(c). Gipson v. State , 428 S.W.3d 107, 109 (Tx. Cr. App. 2014).
[3] This was the conclusion of the Tenth Court of Appeals in a very recent case involving an analogous situation regarding the payment of fines. In that case the defendant was assessed a $1,000.00 fine when placed on community supervision. Years later, his probation was revoked and the trial court’s judgment of conviction imposed the original $1,000.00 fine even though the motion to revoke alleged a $160.00 arrearage. The Court of Appeals noted that it was not the State’s burden to show how much the defendant had or had not paid. The court held that the proper way to avoid having to reform a judgment was to impose the original amount of the fine and to leave the credits, if any, to the payment history maintained by the district clerk. Hall v. State , ___S.W.3d____, No. 10- 14-00205, 2015 Tex. App. LEXIS 11128 (Tx. App. 10 th Dist. Waco 2015).