Geoffrey David Beiser v. State

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-03-00146-CR

______________________________

GEOFFREY BEISER, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

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On Appeal from the County Criminal Court 10

Dallas County, Texas

Trial Court No. MA0123934-L

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

            Geoffrey Beiser appeals from a misdemeanor conviction for assault. He was found guilty by a jury, and the trial court assessed his punishment at 300 days' confinement in county jail, probated for eighteen months, and a $500.00 fine. Beiser raises one issue on appeal: the sufficiency of the evidence to support the jury's rejection of his self-defense theory.

            The evidence in this case comes from a single witness, Sharon Hackler. She was (and is) Beiser's fiancee. Her testimony in response to questions by the State was that they had an argument, but did not remember what it was about. She testified that, during the argument, she came up to him and grabbed him by his shirt and threw her rings at him and that, at one point, he knocked her to the ground, causing her pain, and that he had his hands around her neck. She testified that she then made a telephone call to her daughter to try to get him to leave and that, while she was on the telephone, he packed his belongings. Hackler testified that he asked who she was talking to, that she told him it was none of his business, and that he responded he might make it his business, that she told him to hurry up and get out or she would call the police. She then called the police. Beiser left before they arrived.

            On cross-examination, Hackler testified that Beiser would not have gotten physical with her had she not attacked him, that he did not use his hand to smash her head against the floor, and that they both fell to the floor together while his hands were around her neck. She testified that she felt that he had defended himself from her and that she was the one that was more angry and telling him to get out.

            On redirect, Hackler admitted that she had not attacked Beiser with her fists, or scratched him and that as they went down, she hit her head.

            On recross, Hackler agreed that she did attack Beiser and stated that she had not so informed the police, and that her head hurt that night but not the next day.

            Hackler also testified in response to questions by the State that their seven-year relationship (and four-year engagement) had never involved such actions either by her or by him and that it was entirely nonviolent save only for this one situation.

            Beiser took the position at trial that the evidence showed he was acting in defense of his person and that he did not act unreasonably in so doing.

            When reviewing legal sufficiency of the evidence to support a verdict, we view all of the evidence in the light most favorable to the verdict, asking whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). In reviewing the legal sufficiency of evidence to support rejection of a defense such as self-defense, we examine all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense and also could have found beyond a reasonable doubt against the defendant on the self-defense issue. Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).

            The defendant has the burden of producing some evidence to support the claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Once the defendant produces such evidence, the State has the burden of disproving the defense. Id. The burden of persuasion does not require the State to produce evidence; rather, it requires only that the State prove its case beyond a reasonable doubt. Id. When the jury finds the defendant guilty, it implicitly finds against the defensive theory. Id.

            The factual sufficiency standard for guilt requires the reviewing court to ask whether a neutral review of all the evidence demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or whether the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). A factual sufficiency challenge to a verdict implicitly rejecting a defense requires us to review all of the evidence in a neutral light and ask whether the State's evidence, if taken alone, is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. Zuliani, 97 S.W.3d at 594-95; Bowen v. State, No. 02-02-00239-CR, 2003 WL 21806930, *7 (Tex. App.‒Fort Worth Aug. 7, 2003, no pet. h.).

            Beiser argues the evidence is insufficient to support rejection of his affirmative defense theory of self-defense. Tex. Pen. Code Ann. § 9.31(a) (Vernon 2003) provides that a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to defend himself against the other's use or attempted use of unlawful force. As acknowledged by counsel, the prosecution and the defense elicited conflicting testimony–from the only witness–about whether Beiser's actions were in response to hers, and whether she believed his actions were reasonable in response to her actions. Reviewing the evidence in the light most favorable to the verdict, there is some evidence from which a fact-finder could find against Beiser on the self-defense issue.

            The remaining question is whether that same evidence is factually sufficient, that is, whether it is too weak to support the jury's finding against Beiser on the issue of self-defense and, although adequate if taken alone, whether the finding is against the great weight and preponderance of the evidence.

            The weakness of the evidence is that the victim testified she initiated the conflict, grabbed him first, broke his necklace, and threw her rings at him. She admitted being angry and screaming. In conclusory statements, she stated that Beiser would not have gotten physical if she had not, that she would "guess" she was attacking him by grabbing his shirt, and that she felt he was defending himself.

            On direct examination, she further testified he knocked her to the ground with his hands around her neck, causing her pain. Throughout her testimony, Hackler stated that her only physical action toward Beiser was to grab his shirt. There is no evidence that she ever struck him or that Beiser reasonably believed force immediately was necessary to protect himself against Hackler's use or attempted use of unlawful force.

            Viewing the evidence in a neutral light, we find that the State's evidence is not too weak to support the jury's rejection of Beiser's self-defense theory. Further, the jury's finding of guilt is not against the great weight and preponderance of the evidence.

            We affirm the judgment of the trial court.

 

                                                                        Jack Carter

                                                                        Justice

Date Submitted:          November 24, 2003

Date Decided:             November 26, 2003

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-10-00137-CR

                                                ______________________________

 

 

                                          RICKIE YOUNG, Appellant

 

                                                                V.

 

                                     THE STATE OF TEXAS, Appellee

 

 

                                                                                                  

 

 

                                       On Appeal from the 114th Judicial District Court

                                                             Smith County, Texas

                                                       Trial Court No. 114-2308-06

 

                                                                                                   

 

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                              Memorandum Opinion by Justice Carter

                                                     MEMORANDUM  OPINION

 

I.          Procedural History

            Rickie Young appeals from the revocation of his community supervision for possession of a controlled substance.^[1]  Young pled not true to all allegations that he violated the terms of his community supervision. After hearing the evidence, the trial court revoked Young’s community supervision and sentenced him to two years’ confinement, a $5,000.00 fine, and $140.00 in restitution.

            Young argues the trial court abused its discretion in (1) finding six of the nine allegations true, (2) ordering payment of a $140.00 laboratory fee as restitution, and (3) assessing a $5,000.00 fine when the evidence established Young had paid part of the fine. 

II.        Standard of Review

            We review a trial court’s decision to revoke community supervision under an abuse of discretion standard and examine the evidence in the light most favorable to the trial court’s order. Pierce v. State, 113 S.W.3d 431, 436 (Tex. App.––Texarkana 2003, pet. ref’d).  In a community supervision revocation hearing, the trial court is the sole trier of fact.  Jones v. State, 787 S.W.2d 96, 97 (Tex. App.––Houston [1st Dist.] 1990, pet. ref’d).  The trial court also determines the credibility of the witnesses and the weight to be given their testimony.  Id.  It may accept or reject any or all of the witnesses’ testimony.  Mattias v. State, 731 S.W.2d 936, 940 (Tex. Crim. App. 1987).

            We conclude:  (1) the trial court did not abuse its discretion in revoking community supervision, (2) Young failed to timely appeal any error concerning restitution, and (3) the trial court erred in assessing a $5,000.00 fine.  We modify the trial court’s order revoking community supervision to reflect a fine of $4,275.00.  We affirm the judgment of the trial court as modified.  III.     Revocation of Community Supervision

            Young challenges six of the nine allegations made by the State in its amended motion to revoke.  He argues that the trial court erred in permitting the State to establish possession of cocaine with a field test performed by a police officer and that the State failed to establish the remaining nonfinancial allegations.

            After Young was placed on community supervision, the supervision was transferred to the Dallas County Community Supervision Department.  One of the conditions of Young’s community supervision was “[i]f supervision of your case is transferred from Smith County, send completed, dated and signed mail-in reports to your Smith County Supervision Officer by the 15th of each month.”  The State alleged in the motion that Young had failed to comply with this requirement.  Young’s Smith County supervision officer testified that no mail-in reports were received by the Smith County Department for the months of July, August, and September 2009 and for the months of January, March, and April 2010.  On cross-examination, the supervision officer clarified that the reports for these months were not timely received.  Young only sent in the reports after telephone calls or personal contact by the Community Supervision Department.  This evidence is sufficient to prove Young violated one condition of his community supervision order. 

            A trial court does not abuse its discretion to revoke a defendant’s community supervision if the State presents sufficient evidence that the defendant violated at least one term of the community supervision agreement as alleged in the State’s motion to revoke.  Tex. Code Crim. Proc. Ann. art. 42.12, § 21 (Vernon Supp. 2010) (State must prove every element of at least one ground for revocation by preponderance of evidence); Moore v. State, 605 S.W.2d 924, 926 (Tex. Crim. App. [Panel Op.] 1980); In re T.R.S., 115 S.W.3d 318, 321 (Tex. App.––Texarkana 2003, no pet.).  It is not necessary for this Court to consider Young’s remaining arguments.

            We overrule the first point of error.

IV.       Young Failed to Timely Appeal any Issue Concerning Restitution

            In his second and third issues, Young argues the trial court erred in ordering Young to pay $140.00 as restitution to the State of Texas.  Both Young and the State agree this award was based on a laboratory fee.  Young argues laboratory fees cannot be awarded as restitution when community supervision is revoked.  In the alternative, Young argues there is no evidence to support the restitution order. 

            The trial court imposed the restitution order in the original judgment finding that Young was guilty of possession of a controlled substance and placing Young on community supervision.  Although the fine was partially probated, the restitution order was not probated.  Young’s conditions of community supervision specified that Young was obligated to pay the full $140.00 of restitution on or before January 29, 2008. 

            It is well established that issues related to the original conviction are not generally cognizable on an appeal from the revocation of community supervision.  Gossett v. State, 162 Tex. Crim. 52, 282 S.W.2d 59, 62 (1955); King v. State, 161 S.W.3d 264, 266 (Tex. App.––Texarkana 2005, pet. ref’d); see Manuel v. State, 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999) (applying general rule to deferred adjudication).  Young does not allege that any exception to the general rule applies in this case.  See Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001); cf. Jordan v. State, 54 S.W.3d 783, 785 (Tex. Crim. App. 2001).  “An appeal from an order revoking community supervision is limited to the propriety of the revocation.”  Stafford v. State, 63 S.W.3d 502, 511 (Tex. App.––Texarkana 2001, pet. ref’d).  The time for appeal begins when the sentence is imposed or suspended in open court.^[2]  Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998) (concluding fine which had not been probated was properly included in judgment revoking probation).  Any error in the restitution order should have been appealed when Young was convicted and placed on community supervision.  Young’s second and third points of error are overruled.

V.        Assessment of a $5,000.00 Fine

            In his final point of error, Young complains that the trial court erred in signing a written judgment including a $5,000.00 fine.  The trial court orally pronounced the fine as “the balance of the $5,000 fine.” 

            “A defendant’s sentence must be pronounced orally in his presence.”  Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004).  Where there is a variation between the oral pronouncement of sentence and the written judgment, the oral pronouncement controls.  Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003); Coffey, 979 S.W.2d at 328; see Ex parte Thompson, 273 S.W.3d 177, 178 n.3 (Tex. Crim. App. 2008).  “The judgment, including the sentence assessed, is just the written declaration and embodiment of that oral pronouncement.”  Taylor, 131 S.W.3d at 500.  Due process prohibits the trial court from orally pronouncing a sentence and then later, without notice or hearing, entering a written judgment imposing a harsher sentence.  Ex parte Madding, 70 S.W.3d 131, 136–37 (Tex. Crim. App. 2002).

            The State concedes “the judgment of conviction incorrectly shows on its face that a full $5,000 fine was assessed with no mention of paying the remaining balance.”  La’Mia Upshaw, Young’s Smith County supervision officer, testified Young had been on community supervision for thirty-two months.  Young was required to pay $25.00 a month on his fine.^[3]  Upshaw testified Young was currently $75.00 delinquent on his fine.^[4]  Thus, based on the evidence presented at the hearing, Young paid a total of $725.00 toward his fine.  We have the authority to modify the judgment to make the record speak the truth when the matter has been called to our attention by any source.  Tex. R. App. P. 43.2; French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.––Texarkana 2009, no pet.).  We modify the trial court’s judgment to reflect a fine of $4,275.00. 

VI.       Conclusion

            The trial court did not abuse its discretion in revoking Young’s community supervision.  Any error concerning the restitution order has not been timely appealed.  The trial court erred in signing a written judgment assessing a $5,000.00 fine when the trial court’s oral pronouncement was the “balance of the $5,000” fine.  We modify the judgment to reflect a fine of $4,275.00, as the balance of the fine, and affirm as modified.

 

 

 

                                                                        Jack Carter

                                                                        Justice

 

Date Submitted:          February 9, 2011

Date Decided:             March 2, 2011

 

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OPINION ON REHEARING

            Rickie Young has filed a motion for rehearing challenging our conclusion that he failed to timely appeal any error in the restitution award.  In the original judgment of conviction, Young was ordered to pay restitution of $140.00 to the Texas Department of Public Safety (TDPS).  Additionally, one of the conditions of Young’s community supervision was that he “[p]ay restitution in the total amount of $140 on or before January 29, 2008 . . . .”  After this revocation hearing, Young was again ordered to pay restitution of $140.00 to the TDPS.  In his appellant’s brief, Young argued the trial court erred in ordering him to pay $140.00 as restitution to the TDPS.  According to Young, laboratory fees cannot be awarded as restitution and the record failed to contain evidence supporting such an award.  Young requested that this Court either modify the judgment to delete the restitution award or remand for “an evidentiary hearing to determine the proper amount of restitution.”  The trial court imposed the restitution order in the original judgment finding Young guilty of possession of a controlled substance and placing Young on community supervision.  The restitution order was not probated.  In our opinion, we found that Young had not timely appealed the restitution award.  We deny Young’s motion for rehearing with the following comments. 

            In his motion for rehearing, Young argues the error in the restitution award occurred at the time of revocation.  Young argues that “[a]t the time [he] was placed on probation, this condition was valid.”  Young argues this condition was valid because laboratory fees can be assessed as a condition of community supervision.  See Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a)(19) (Vernon Supp. 2010).  Young argues that because the laboratory fee was a valid condition of community supervision, the error occurred when the trial court revoked his community supervision.^[5]  While Article 42.12, Section 11 authorizes a trial court to order a defendant to “[r]eimburse a law enforcement agency for the analysis . . . of . . . controlled substances . . . seized in connection with the offense,”^[6] the issue in this case is whether the trial court erred in ordering, after revocation, that restitution, which had been previously assessed in the original sentence, be paid.  If the laboratory fee had been assessed only as a condition of community supervision, Young’s argument might be correct.  Separate and apart from the community service condition, Young was ordered to pay $140.00 as restitution in the original judgment—not solely as a condition of community supervision.  Because the laboratory fee was awarded in the original judgment and not solely as a condition of community supervision, any error^[7] in the judgment’s order of restitution should have been challenged by an appeal from the original judgment.  See King v. State, 161 S.W.3d 264, 266 (Tex. App.––Texarkana 2005, pet. ref’d).

            In addition, Young argues an evidentiary sufficiency complaint cannot be waived by failing to object in the trial court.^[8]  However, issues related to the original conviction, including the sufficiency of the evidence, are not generally cognizable on an appeal from the revocation of community supervision.  See id.; see also Manuel v. State, 994 S.W.2d 658, 661 (Tex. Crim. App. 1999).  The restitution award was imposed by the trial court in the original conviction.  The sufficiency of the evidence supporting that award is not an issue which is cognizable in an appeal from a revocation hearing which occurred several years later.  As we stated in our original opinion, any error in the restitution order should have been appealed when Young was convicted and placed on community supervision.  It is now too late to challenge the restitution order. 

            Young’s motion for rehearing is denied.

 

                                                                        Jack Carter

                                                                        Justice

 

Date:   March 23, 2011

 

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^[1]This case was transferred to this Court from the Tyler Court of Appeals as part of the Texas Supreme Court’s docket equalization program.  We are not aware of any conflict between the precedent of the Tyler Court and the precedent of this Court on any issue relevant in this appeal.  See Tex. R. App. P. 41.3.

^[2]Further, the Tyler Court of Appeals has held an error in a restitution order does not result in an illegal sentence.  See Grindele v. State, No. 12-06-00168-CR, 2007 Tex. App. LEXIS 5198 (Tex. App.––Tyler June 29, 2007, pet. ref’d) (mem. op.).  Because this case was transferred from the Tyler Court of Appeals, we are obligated to decide the case in accordance with the precedent of the transferor court.  Tex. R. App. P. 41.3.  The error, if any, did not result in an illegal sentence.

^[3]The trial court suspended $4,000.00 of Young’s fine when Young was placed on community supervision. 

 

^[4]We note that Young argued he was only one month behind on his payments because he was in jail for the months of April and May.  We also note that a number of Young’s payments were not made timely.

^[5]Young cites Carter v. State, No. 12-09-00105-CR, 2011 Tex. App. LEXIS 662 (Tex. App.––Tyler Jan. 31, 2011, pet. filed) (mem op., not designated for publication), as authority that we can review the restitution award.  Carter, though, is distinguishable from this case because Carter was a direct appeal, not an appeal from a revocation of community supervision.  Id. 

 

^[6]See Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a)(19).  

 

^[7]This Court has agreed with the Austin and First District Courts of Appeals that laboratory fees cannot be awarded as restitution.  See King v. State, No. 06-10-00120-CR, 2010 Tex. App. LEXIS 10058 (Tex. App.––Texarkana Dec. 21, 2010, no pet. h.) (mem op., not designated for publication) (concluding laboratory fees could not be awarded as restitution); see also Aguilar v. State, 279 S.W.3d 350, 353 n.1 (Tex. App.––Austin 2007, no pet.); Uresti v. State, 98 S.W.3d 321, 338 (Tex. App.––Houston [1st Dist.] 2003, no pet.).  In his motion for rehearing, Young cites a memorandum opinion and several unpublished orders which reverse laboratory fees awarded as restitution based on insufficient evidence.  See Carter, 2011 Tex. App. LEXIS 662; Evans v. State, No. 12-10-00139-CR (Tex. App.––Tyler Feb. 28, 2011, order) (not designated for publication); Carter v. State, No. 12-09-00105-CR (Tex. App.––Tyler Dec. 22, 2010, order) (not designated for publication); Carter v. State, No. 12-09-00105-CR (Tex. App.––Tyler Nov. 17, 2010, order) (not designated for publication).  Carter, though, did not conclude laboratory fees cannot be assessed as restitution.  Young has not directed this Court to any Tyler cases that have expressed an opinion on whether laboratory fees can be awarded as restitution.  See Jones v. State, No. 12-10-00001-CR, 2011 Tex. App. LEXIS 524 (Tex. App.––Tyler Jan. 26, 2011, no pet.) (mem. op., not designated for publication) (noting split of authority, but declining to decide); Blanton v. State, No. 12-09-00448-CR, 2010 Tex. App. LEXIS 8721 (Tex. App.––Tyler Oct. 29, 2010, no pet.) (mem. op., not designated for publication) (noting split of authority, but declining to decide). 

 

^[8]The Texas Court of Criminal Appeals has held restitution awards must be supported by evidence in the record.  Cabla v. State, 6 S.W.3d 543, 546 (Tex. Crim. App. 1999); see Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010).  Further, evidentiary sufficiency issues are not required to be preserved for appellate review.  See Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004).