IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
MARCH 19, 2007
______________________________
SHANE WILKINS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE _________________________________
FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2003-402468; HONORABLE JIM BOB DARNELL, JUDGE _______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
OPINION
Appellant, Shane Wilkins, seeks an appeal of the revocation of his community supervision for the offense of aggravated kidnapping. Appellant contends the trial court erred in finding that he had violated his community supervision by committing the offense of retaliation. We reverse and remand.
Background
Appellant was convicted of aggravated kidnapping, aggravated assault, and three counts of aggravated assault with a deadly weapon. Appellant was sentenced to 10 years confinement in the Institutional Division of the Texas Department of Criminal Justice on the aggravated kidnapping case, 10 years confinement on the one count of aggravated assault, and two years confinement in each of the three cases of aggravated assault with a deadly weapon. In each case, appellant was placed on community supervision. While appellant was on community supervision, appellant's wife and her ex-husband were engaged in a custody dispute which resulted in several court hearings and, at times, intervention by Child Protective Services (CPS). In June 2005, District Judge Sam Medina scheduled an emergency hearing in the 237th District Court involving the parents of the children and CPS. Although appellant was a non-party to the suit, appellant desired to attend the hearing and attempted to enter the courtroom. However, Judge Medina maintained a dress code policy prohibiting shorts in the courtroom, and appellant was refused admittance by the bailiff until he was able to properly dress for court. As appellant was leaving the courthouse to change into more appropriate clothing, he made a telephone call. While on the phone, two attorneys heard appellant make multiple statements to the effect that he wished that Judge Medina would die. The attorneys, after returning to their respective offices to handle other business matters, decided to report the overheard remarks to Judge Medina who in turn reported the incident to the District Attorney's office. The State filed an application to revoke appellant's community supervision contending that appellant had violated his community supervision by committing the offense of retaliation by making the remarks overheard by the attorneys. Later on that day, appellant returned to the courtroom and attended the proceedings without incident until he was arrested on the motion to revoke warrant. After a hearing on September 7th, the trial court found that appellant had violated his community supervision, revoked the order placing him on community supervision, and ordered that appellant serve the sentence of ten years confinement in the Institutional Division of the Texas Department of Criminal Justice in each case.
Appellant appeals the judgment revoking his community supervision contending that (1) the evidence is insufficient to support the trial court's finding that appellant had violated his community supervision; (2) the trial court's ruling violated appellant's right to free speech protected by the first amendment of the United States Constitution; (3) appellant was not afforded due process as guaranteed by the fourteenth amendment of the United States Constitution and by Article I, Section 19 of the Texas Constitution; and (4) the trial court erroneously sentenced appellant to ten years in the three aggravated assault with a deadly weapon cases. (1)
Standard of Review
A community supervision revocation proceeding is neither a criminal nor a civil trial, but is rather an administrative proceeding. Cobb v. State, 851 S.W.2d 871, 873 (Tex.Crim.App. 1993). The State must prove by a preponderance of the evidence that a defendant violated the terms of his community supervision. See id. Our review of an order revoking community supervision is limited to determining whether the trial court abused its discretion. See Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App. 1984). In a community supervision revocation hearing, an abuse of discretion occurs when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. See Brumbalow v. State, 933 S.W.2d 298, 300 (Tex.App.-Waco 1996, writ ref'd). The evidence is viewed in the light most favorable to the trial court's order. Johnson v. State, 943 S.W.2d 83, 85 (Tex.App.-Houston [1st Dist.]1997, no pet.) (declining to use a factual sufficiency standard to review the sufficiency of the evidence in a revocation proceeding); see also Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. [Panel Op.] 1972).
The offense of retaliation can be committed by a person if he "intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for or on account of the service or status of another as a public servant." See Tex. Penal Code Ann. § 36.06(a)(1)(A) (Vernon Supp. 2006). A threat is a communicated intent to inflict harm. See Black's Law Dictionary 1519 (8th ed. 2004). A person acts intentionally when it is his conscious objective or desire to engage in the conduct or cause the result. See Tex. Penal Code Ann. § 6.03 (Vernon 2003). A person acts knowingly when he is aware of the nature of his conduct or that his conduct is reasonably certain to cause the result. Id. Intent can be inferred from the acts, words, and conduct of the accused. See Beltran v. State, 593 S.W.2d 688, 689 (Tex.Crim.App. 1980). Under the retaliation statute, a threat does not have to be direct. See Davis v. State, 890 S.W.2d 489, 491 (Tex.App.-Eastland 1994, no writ) (appellant's statement that he had a criminal mind messed up on drugs and that he might just do anything constituted threat to CPS worker). Further, the threat does not have to be communicated directly to the person being threatened. See Doyle v. State, 661 S.W.2d 726, 728 (Tex.Crim.App. 1983).
From the facts in this case, we find that the retaliation charge against appellant was a result oriented offense. See In re B. P. H., 83 S.W.3d 400, 407 (Tex.App-Fort Worth 2002, no pet.); Herrera v. State, 915 S.W.2d 94, 97 (Tex.App.-San Antonio 1996, no writ). As a result oriented offense, the action being criminalized is the threat to harm and the intent to inhibit public service by others. Herrera, 915 S.W.2d at 97; see also Doyle, 661 S.W.2d at 729. Therefore, we cannot focus on the nature of the offense, i.e., the fact that appellant made a threatening statement because of Judge Medina's policy of no shorts in the courtroom. Rather we consider whether appellant made the statement with the intent to inhibit Judge Medina's service as a public official or with knowledge that it was reasonably certain that his statement would inhibit Judge Medina's service as a public official. See Doyle, 661 S.W.2d at 729 (the retaliation statute is meant to encourage citizens to perform public duties without the fear of retribution). Considering the actions of the attorney witnesses, bailiff, district attorney's office, and Judge Medina, appellant certainly did communicate words that others perceived as a threat. Further, evidence shows that appellant expressed his wishes for Judge Medina's death on account of his service as a district judge, specifically as administrator of his courtroom in establishing a dress code for the privilege of entering his courtroom. But there is no evidence that appellant intended or was reasonably certain that his stated intent for Judge Medina's death would in any way affect his performance as district judge or cause Judge Medina to fear retribution. Under this subjective test, the evidence must demonstrate that appellant intended or was reasonably certain that his statements would be interpreted as expressions of an intent to harm a public servant in retaliation of the public duty performed. See Puckett v. State, 801 S.W.2d 188, 193 (Tex.App.-Houston 1990, writ ref'd).
In this matter, no evidence supports a conclusion that appellant meant to affect Judge Medina's actions or emotional well-being. Even though the attorneys relayed the threat to law enforcement who took precautions, nothing in the record can be construed as evidence that appellant intended or knew with reasonable certainty that his statement would cause a reaction such as the heighten sense of security put into place after the District Attorney's office became involved. Finally, the record shows that appellant complied with Medina's no-shorts policy, went home to change clothing, and returned to the courtroom without any demonstration of ill-feelings or inappropriate conduct in the courtroom. We therefore conclude that no reasonable person could believe by a preponderance of the evidence that appellant made a threatening remark with the requisite retaliatory intent of placing Judge Medina in fear of retribution as a result of his duty as district judge. We therefore conclude that the trial court abused its discretion in finding by a preponderance of the evidence that appellant had committed the offense of retaliation. Since this was the only alleged violation of appellant's community supervision, we find that the trial court erred in revoking appellant's community supervision. Having granted appellant the relief sought on his first issue, we decline to address appellant's remaining issues. See Tex. R. App. P. 47.1
Conclusion
For the foregoing reasons, we reverse the trial court's order revoking appellant's community supervision and remand this cause to the trial court for further proceedings consistent with this opinion.
Mackey K. Hancock
Justice
Publish.
Quinn, C.J., concurs in the result but does so because he concludes that the comments at issue, though utterly inappropriate and distasteful, did not constitute a threat.
1. The State concedes that the trial court erred in sentencing appellant to ten years confinement on the three cases of aggravated assault with a deadly weapon when the original sentences in those cases were two years respectively. At a revocation hearing, the trial court is authorized to proceed with the original sentence or to reduce the term of confinement originally assessed. See Tex. Code Crim. Proc. Ann. art. 42.12 § 23(a) (Vernon 2006).
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NO. 07-10-00120-CV, 07-10-00121-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JUNE 17, 2010
HARVEY FLOYD HODO, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;
NO. 18700-A, 18765-A; HONORABLE HAL MINER, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
OPINION ON ABATEMENT
On March 23, 2010, in each referenced cause, pursuant to section 501.014(e) of the Texas Government Code, the trial court signed and entered an Order to Withdraw Inmate Funds.[1] By the withdrawal notifications entered in each cause, the trial court directed the Texas Department of Criminal Justice, Institutional Division, to withhold from Hodos inmate trust account the following amounts: (1) $1,586.50 in cause number 18700-A; and (2) $486.50 in cause number 18765-A. Hodo filed pro se notices of appeal on April 6, 2010, challenging the withdrawal notifications. While both of the judgments upon which the withdrawal notifications were based include an order that the State recover "all court costs," the judgments do not assess these costs.
In Harrell v. State, 286 S.W.3d 315 (Tex. 2008), the Texas Supreme Court held that a withdrawal notification directing prison officials to withdraw money from an inmate trust account pursuant to section 501.014(e) is a civil matter akin to a garnishment action or an action to obtain a turnover order. Id. at 317-19; see also Johnson v. Tenth Judicial District Court of Appeals at Waco, 280 S.W.3d 866, 869 (Tex.Crim.App. 2008) (holding that orders directing withdrawal of funds from inmate trust accounts is not a criminal matter). In determining whether Harrell was accorded constitutional due process in that proceeding, the Court balanced three factors discussed in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L. Ed. 2d 18 (1976), and noted that Harrell had "already received some measure of due process." Harrell, 286 S.W.3d at 320.
The three Eldridge factors considered in Harrell are: (1) the private interest affected by the official action, (2) the risk of an erroneous deprivation of such interests through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, and (3) the government's interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail. Id. at 319-20 (citing Mathews, 424 U.S. at 335). The Court found the private interest to be affected to be easily ascertainable by reference to the amount identified in a prior court document, which could be stated with exactness as "the costs assessed when the convicting court sentenced him." Id. at 320. Regarding the risk of erroneous deprivation, the Court identified the risk as modest where withdrawal notifications under the statute are based on an amount identified in a previous court document. See Tex. Gov't Code Ann. § 501.014(e)(1)-(6) (Vernon Supp. 2009). The Court noted that "Harrell was . . . notified of the costs assessed when the convicting court sentenced him" and he was free to contest them at the time they were assessed. Harrell, 286 S.W.3d at 320. However, the Court went on to recognize there could be a greater risk of erroneous deprivation in instances in which the amount in the withdrawal notification varied from the amount in the underlying judgment or those instances where there were clerical or other errors. Id. In assessing the final factor, the government's interest, the Court addressed the fiscal and administrative burdens of added or alternative procedures and concluded that the Texas Department of Criminal Justice would face expending more money than it would collect if it were required to conform to "full-blown" statutory garnishment requirements. Id. In the Court's opinion, such a drawn-out procedure might subvert the Legislature's goal of efficient cost-collection. Id.
Harrell had been convicted of drug charges in 1997 and 2003. In 2006, the convicting trial court signed an order authorizing the Texas Department of Criminal Justice, Institutional Division, to withdraw funds from his inmate trust account to pay for court costs and fees for appointed counsel. Harrell was provided with copies of the withdrawal notifications. He then moved to rescind the withdrawal notifications alleging denial of due process. His motion was denied, and his direct appeal to this Court was dismissed for want of jurisdiction on the ground that no statutory mechanism was available for appealing a withdrawal notification. See Harrell v. State, Nos. 07-06-0469-CR, 07-06-0470-CR, 2007 Tex.App. LEXIS 6416, at *3 (Tex.App.--Amarillo Aug. 13, 2007), rev'd, 286 S.W.3d 315 (Tex. 2008).
In reversing this Court and rendering judgment affirming the trial court's Order Denying Harrell's Motion to Rescind, the Supreme Court held that due process entitles an inmate to receive notice[2] and an opportunity to be heard, even though those requirements might be accorded the inmate after funds are withdrawn. Harrell, 286 S.W.3d at 321. It concluded that because Harrell had received notice (a copy of the withdrawal notification) and an opportunity to be heard[3] (the motion to rescind), he had received all that due process required. Id. The Court added, "[t]he Constitution does not require pre-withdrawal notice or a comprehensive civil garnishment proceeding." Id.
On the limited record before this Court, we are unable to determine if Hodo has been given all that due process requires. Specifically, we are unable to determine whether Hodo has been (1) provided the necessary underlying documentation, and (2) afforded an adequate opportunity "to compare the amounts assessed by the trial court [in the underlying criminal proceedings] to the amount[s] withdrawn and alert the court of any alleged errors." See id.
If an appellate court is uncertain about the intent of an order to finally dispose of all claims, it can abate the appeal to permit clarification by the trial court. See Tex. R. App. P. 27.2. Because the trial court has not entered an appealable order either granting or denying a motion to confirm, modify, correct, or rescind the prior withdrawal notification, we find Hodo's notices of appeal to be premature. See Williams v. State, Nos. 07-10-0091-CV, 07-10-0100-CV, 07-10-0101, 2010 Tex.App. LEXIS 2998, at *8-9, (Tex.App.--Amarillo April 22, 2010, no pet. h.).
Accordingly, this Court sua sponte abates this appeal for 180 days from the date of this order to allow Hodo time to take such action as is necessary to (1) obtain the necessary documentation of the underlying court order; (2) compare the underlying court order to the withdrawal notification; (3) file an appropriate motion to modify, correct, or rescind the withdrawal notification; (4) present that motion to the trial court; (5) schedule any necessary hearing; and (6) obtain from the trial court a final appealable order addressing that motion. See Tex. R. App. P. 27.2; see also Iacono v. Lyons, 6 S.W.3d 715 (Tex.App.--Houston [1st Dist.] 1999, no pet.) (finding appeal prematurely filed and abating and remanding to permit the jurisdictional defect to be cured). All appellate timetables will begin to run from the date a final, appealable order is signed.
It is so ordered.
Per Curiam
[1]This document is not an "order" in the traditional sense of a court order, judgment, or decree issued after notice and hearing in either a civil or criminal proceeding. The controlling statute, Tex. Gov't Code Ann. § 501.014(e) (Vernon Supp. 2009), describes the process as a "notification by a court" directing prison officials to withdraw sums from an inmate's trust account, in accordance with a schedule of priorities set by the statute, for the payment of "any amount the inmate is ordered to pay by order of the court." See id. at § 501.014(e)(1)-(6); see also Harrell v. State, 286 S.W.3d 315, 316 n.1 (Tex. 2009). This document is more akin to a judgment nisi. A judgment nisi, commonly used in bond forfeiture proceedings, is a provisional judgment entered when an accused fails to appear for trial. A judgment nisi triggers the issuance of a capias and it serves as notice of the institution of a bond forfeiture proceeding. It is not final or absolute, but may become final. See Safety Nat'l Cas. Corp. v. State, 273 S.W.3d 157, 163 (Tex.Crim.App. 2008). Nisi means "unless," so a judgment nisi is valid unless a party takes action causing it to be withdrawn. Id. Similarly, a withdrawal notification issued pursuant to section 501.014(e), triggers a trust fund withdrawal, serves as notice of the collection proceeding, and continues to operate unless the inmate takes action causing the notification to be withdrawn. Therefore, rather than refer to that document as an order, we prefer to use the term "withdrawal notification" to avoid confusion with an underlying court order or judgment ordering the payment of a sum falling within at least one of the six priority categories listed in the statute.
[2]In assessing the risk of erroneous deprivation of property, the Supreme Court, in Harrell, considered the risk to be "modest" because notice under the statute is "based on an amount identified in a prior court document." Harrell, 286 S.W.3d at 320 (emphasis added). The Court went on to comment that the risk would be minimized if the trial court included a copy of the underlying order or judgment that assessed costs when it issues a withdrawal notification. We wholeheartedly adopt the Supreme Court's recommendation in this regard.
We further note that the mere assessment of attorney fees does not make them collectable through this process. Under article 26.05(g) of the Texas Code of Criminal Procedure, the trial court has authority to order reimbursement of appointed attorney fees only if the court makes a fact-specific determination that a defendant has financial resources that enable him to offset, in part or in whole, the costs of the legal services provided. See Tex. Code Crim. Proc. Ann. art. 26.05(g) (Vernon Supp. 2009); see also Mayer v. State, No. PD-0069-09, 2010 Tex.Crim.App. LEXIS 100, at *11 (Tex.Crim.App. March 24, 2010).
[3]While the court of appeals's opinion is silent on whether a hearing was held on Harrell's motion to rescind, Harrell, 2007 Tex.App. LEXIS 6416, at *3, the trial court did enter a specific order denying his motion to rescind the withdrawal notification. We read the Supreme Court's opinion as assuming that, by this process, Harrell was given "an opportunity to be heard." Harrell, 286 S.W.3d at 321.