Opinion issued March 2, 2006
In The
Court of Appeals
For The
First District of Texas
NO. 01-04-01174-CR
QUINCY RASHAD HARRIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 827604
MEMORANDUM OPINION
Appellant pled guilty to delivery of a controlled substance. Appellant was sentenced to ten years’ confinement, and the trial court later granted appellant’s request for shock probation. After a hearing on the State’s motion to revoke appellant’s community supervision, the trial court revoked appellant’s community supervision and assessed punishment at five years’ confinement and a fine of $300. Appellant brings two issues for review: (1) whether the trial court erred in assessing a $300 fine upon revocation which was not included in the original judgment, and (2) whether the trial court abused its discretion in revoking appellant’s community supervision.
BACKGROUND
In August 2003, while on community supervision, appellant and his cousin stopped R.J. while she was riding her bicycle. After chatting with R.J., appellant suggested they go to an abandoned house. Once inside, appellant began to have sex with R.J. while appellant’s cousin was in the same room. When they stopped, appellant put on his pants and went outside. Appellant’s cousin wanted to have sex with R.J. too, but she refused. Appellant’s cousin then forced R.J. to have sex with him.
Approximately four months later, R.J. and her mother discovered R.J. was pregnant. On that same day, appellant called R.J.’s mother, Garnita Taylor, and pleaded with her to not press charges against him because he did have sex with her and would take full responsibility for the child.
In May 2004, the State filed a motion to revoke appellant’s community supervision alleging, among other things, that appellant had broken the law by sexually assaulting a child. After a hearing, the trial court revoked appellant’s community supervision and assessed punishment at five year’s confinement and a $300 fine.
IMPOSITION OF $300 FINE
In his first issue, appellant complains that the judgment and sentence incorrectly include a $300 fine that was not included in the original judgment. Appellant contends that, since the fine was not pronounced in open court, the oral pronouncement controls, and the fine should be deleted from his judgment.
The record reveals that the original adjudication judgment sentenced appellant to ten years’ confinement with a fine “in the amount of: $ ---.” After appellant began serving his sentence, the trial court suspended the sentence and placed appellant on shock probation. One of the conditions of appellant’s shock probation indicated he had to pay a fine of “$-00-.” On October 4, 2004, the trial court revoked appellant’s shock probation in response to the State’s motion to revoke and assessed punishment at five years’ confinement and a $300 fine.
The State asserts that appellant has preserved no error for review because he failed to object to the imposition of the fine. Alternatively, the State asserts that the fine had been previously assessed because the court records indicate the fine had been “reassessed.”
Judgments
A trial court’s lack of authority to act in a particular manner may render a judgment either void or voidable depending on the type of error. Ex parte Seidel, 39 S.W.3d 221, 224 (Tex. Crim. App. 2001). Unauthorized acts (or errors) are either “illegal” or “irregular.” Id. “Illegal acts” are those “acts that are not authorized by law.” Id. (citing Blacks Law Dictionary 598 (7th ed. 2000)). “Irregular acts” are those “acts or practices that vary from the normal conduct of an action.” Id. (citing Blacks Law Dictionary 669 (7th ed. 2000)). Irregular judgments are merely voidable, while illegal judgments are void. Id.; see Ex parte Pena, 71 S.W.3d 336, 336 n.2 (Tex. Crim. App. 2002) (“[a] ‘void’ or ‘illegal’ sentence is one that is not authorized by law”).
“A void 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.” Seidel, 39 S.W.3d at 225 (citing Ex parte Spaulding, 687 S.W.2d 741, 745 (Tex. Crim. App. 1985) (Teague, J., dissenting and concurring)). Although most trial errors are forfeited if not timely asserted, a defendant is not required to make a contemporaneous objection to the imposition of an illegal or void sentence. Mizell v. State, 119 S.W.3d 804, 806 n.6 (Tex. Crim. App. 2003). Error need not be preserved to attack a void judgment by direct appeal. Id. at 806; Seidel, 39 S.W.3d at 225. In the present case, because appellant did not object to the imposition of the $300 fine, we must determine whether the addition of the fine rendered the judgment void or voidable.
Community Supervision
When a court grants community supervision under article 42.12, section 6 (“shock probation”) of the Texas Code of Criminal Procedure, the court imposes the sentence, the defendant actually serves a portion of the sentence, and the court, by granting “shock” probation, suspends the further execution of the sentence. Amado v. State, 983 S.W.2d 330, 331-32 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d). Upon revocation of shock probation, the trial court simply reinstates the execution of the originally imposed sentence. Id. at 332. Any subsequent deviation from that original sentence is controlled by article 42.12, section 23(a) of the Texas Code of Criminal Procedure:
If community supervision is revoked after a hearing under Section 21 of this article, the judge may proceed to dispose of the case as if there had been no community supervision, or if the judge determines that the best interests of society and the defendant would be served by a shorter term of confinement, reduce the term of confinement originally assessed to any term of confinement not less than the minimum prescribed for the offense of which the defendant was convicted.
Tex. Code Crim. Proc. Ann. art. 42.12 § 23(a) (Vernon Supp. 2005) (emphasis added). It makes no provision for adding a fine not originally assessed. See id.; cf. Coffey v. State, 979 S.W.2d 326, 329 n.2 (Tex. Crim. App. 1998) (stating that article 42.12 section 23(a) “makes no provision for reducing the fine assessed”).
In Coffey, Coffey pled guilty to possession of cocaine and was sentenced to five years’ confinement and a fine of $750, probated for five years. 979 S.W.2d at 327. Three years later, the trial court revoked Coffey’s probation and orally assessed punishment at five years’ confinement. Id. However, the judgment included the $750 fine. Id. The court faced the issue of whether a fine imposed in the original judgment must be repronounced after probation revocation. Id. at 327-28. The court held that, because the fine had been imposed in the original judgment, it was proper to include the fine in the judgment revoking probation. Id. at 329. Most importantly, the court stated that, apart from article 42.12, section 23(a) of the Texas Code of Criminal Procedure, “[a]ny subsequent deviation from that [original] sentence, i.e. either a decrease or increase, could not supersede what had already been imposed in open court.” Id. at 328-29 (emphasis added).
Here, the trial court had imposed the punishment of ten years’ confinement with no fine and placed appellant on probation. On revocation, the trial court was authorized to (1) reinstate the original sentence or (2) reduce the confinement. See Amado, 983 S.W.2d at 332; see Tex. Code Crim. Proc. Ann. art. 42.12 § 23(a) (Vernon Supp. 2005). The trial court could not supersede what had already been imposed in open court. See Coffey, 979 S.W.2d at 328-29. We conclude the trial court was not authorized by law to assess a new sentence by adding a fine not included in the original sentence. As a result, the $300 fine is void, and appellant did not have to object to preserve error. Our conclusion that the $300 fine is void compels a conclusion that the $300 fine be deleted from the judgment. Accordingly, we reform the judgment of the trial court to reflect the deletion of the $300 fine.
The State cites Ex parte Pena, 71 S.W.3d 336 (Tex. Crim. App. 2002) and Wright v. State, 930 S.W.2d 131 (Tex. App.—Dallas 1996, no writ) for the proposition that the failure to object to the imposition of the fine preserved no error for review.
In Pena, the trial judge followed the jury’s recommendation and placed Pena on community supervision, but also imposed a $10,000 fine. 71 S.W.3d at 337. Because Pena did not complain when the sentence was imposed and stated he was not contesting the fine during Pena’s revocation hearing, the court held that Pena affirmatively waived error. Id. at 337-38.
Pena is distinguishable from the present case because the fine was imposed at the original sentence, while appellant’s fine was added after the original sentence had already been imposed. Id. at 337. Pena also suggests the $10,000 fine could have been attacked on direct appeal, even though Pena failed to object when it was imposed. See id. at 337, 338. The court stated that Pena (1) “waived error by not complaining . . . on direct appeal,” (2) “decided not to appeal [the fine] even though he clearly could have and was aware that he could have done so,” and (3) “[Pena] could have, and should have, complained about the fine . . . on direct appeal.” Id. These statements support the conclusion that appellant can complain about the addition of the $300 fine on direct appeal absent an objection.
The State’s reliance on Wright is also misplaced. Wright holds that a failure to object to the assessment of a fine does not preserve constitutional error. 930 S.W.2d at 133. Here, appellant does not allege constitutional error; thus, we do not find Wright applicable. We overrule appellant’s first issue.
COMMUNITY SUPERVISION REVOCATION
In his second issue, appellant complains that the trial court abused its discretion in revoking appellant’s community supervision because the evidence was insufficient to support the State’s allegations. Specifically, appellant contends several factors must be considered: (1) R.J. did not immediately report the sexual encounter until she had to explain why she was pregnant, (2) she did not initially tell police that she had sex with two men in the abandoned house, and (3) the abandoned house did not exist at the address initially given to the police and the house she ultimately pointed out was occupied. Appellant’s challenges amount to an attack on the credibility of R.J.
Standard of Review
The State must prove by a preponderance of the evidence that the probationer violated the terms and conditions of his probation. Jenkins v. State, 740 S.W.2d 435, 437 (Tex. Crim. App. 1983); Smith v. State, 790 S.W.2d 366, 367 (Tex. App.—Houston [1st Dist.] 1990, writ ref’d). This standard is met when the greater weight of the credible evidence creates a reasonable belief that the defendant violated a condition of his probation as the State alleged. Jenkins, 740 S.W.2d at 437 (citing Martin v. State, 623 S.W.2d 391, 393 n. 5 (Tex. Crim. App. 1981)). In a probation revocation hearing, the trial judge is the sole trier of the facts. Jones v. State, 787 S.W.2d 96, 97 (Tex. App.—Houston [1st Dist.] 1990, writ ref’d). The trial judge also determines the credibility of the witnesses and the weight to be given to their testimony. Id.
Appellate review of an order revoking probation is limited to determining whether the trial court abused its discretion. Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). We must examine the evidence in the light most favorable to the trial court’s order. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981) (citing Fernandez v. State, 564 S.W.2d 771 (Tex. Crim. App. 1978)); Galvan v. State, 846 S.W.2d 161, 162 (Tex. App.—Houston [1st Dist.] 1993, no writ); Jones, 787 S.W.2d at 97.
Application
R.J. testified that, in August 2003, she was riding her bicycle when appellant and his cousin came up to speak with her. After speaking about school, appellant indicated he knew where an abandoned house was located and led R.J. to that house along with appellant’s cousin. After reaching the house, R.J. sat on a chest freezer while appellant began rubbing and touching her face and hair. Both appellant and R.J. took off their pants and had sexual intercourse.
R.J.’s mother, Garnita Taylor, also testified that when she discovered R.J. was pregnant, she spoke with appellant. Appellant told Taylor that he would take full responsibility for the child and that he had had sex with R.J. He also pleaded with Taylor that no charges be filed against him.
The testimony of R.J. and her mother is sufficient for the trial judge–as the sole judge of the credibility of the witnesses–to have found by the preponderance of the evidence that the appellant violated his probation by having sexual intercourse with a minor in August 2003. Thus, the trial court did not abuse its discretion in revoking appellant’s community supervision on the ground that he violated the law. We overrule appellant’s second issue.
CONCLUSION
Because the trial court’s judgment incorrectly reflects the imposition of a $300 fine, we reform the judgment to reflect the deletion of the $300 fine. As reformed, we affirm the judgment of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Jennings and Alcala.
Do not publish. Tex. R. App. P. 47.2(b).