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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
Do Not Publish
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
Do Not Publish
[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).