COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00258-CR
TYRELL A. JACKSON APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1 ON APPELLANT’S
PETITION FOR DISCRETIONARY REVIEW
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I. Introduction
Pursuant to Texas Rule of Appellate Procedure 50, we have reconsidered our
prior opinion on receiving Appellant Tyrell A. Jackson’s petition for discretionary
review. See Tex. R. App. P. 50. W e withdraw our opinion and judgment of August
31, 2010, and substitute the following in its place.
1
See Tex. R. App. P. 47.4.
In two points, Jackson appeals his sentence for aggravated assault with a
deadly weapon. W e affirm.
II. Factual and Procedural Background
On June 22, 2007, Jackson pleaded guilty to aggravated assault with a deadly
weapon in exchange for ten years’ deferred adjudication community supervision and
a $500 fine. Part of his community supervision terms and conditions included that
he pay a supervision fee of $60 per month, a $20 crime stoppers fee, the $500 fine,
attorney’s fees in the amount of $1,700, and court costs in the amount of $276.
At the July 17, 2009 hearing on the State’s first amended petition to proceed
to adjudication, Jackson pleaded true to the allegations contained within paragraphs
2, 4A, 4B, 5A, 5B, 6, 8A, and 8B. 2 Jackson’s community supervision officer testified
2
That is, that Jackson:
2. Failed to attend Fee Docket by leaving the District 371st Courtroom prior to being
released by the Court on or about April 7, 2009.
4A. Failed to attend Intensive Day Treatment Aftercare, on or about November 24,
2008; December 11, 2008; and December 17, 2008.
4B. W as unsuccessfully discharged from Intensive Day Treatment Aftercare on or
about December 18, 2008, because he violated condition 4A.
5A. Failed to submit a urine sample for testing on or about November 10, 2008.
5B. Submitted a diluted urine sample on or about December 29, 2008.
6. Failed to report as scheduled by his community supervision officer during January
and May 2008.
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that Jackson failed to attend fee docket but also that Jackson went to court on April
7, 2009, was told that he needed to make a payment, and paid some money that
day. Jackson testified that on April 7, 2009, he left court and made a $150 payment.
W hen he returned to court, no one called his name so he “took it upon [him]self to
leave” because he did not know what he was supposed to do. He attributed missing
the three days of his Intensive Day Treatment Aftercare and missing his urine test
to car trouble, his failure to report in January and May 2008 to homelessness, and
his failure to make his supervision and crime stoppers fee payments to
unemployment.
The trial court found the allegations in paragraphs 2, 4A, 4B, 5A, 5B, 6, 7, 3 8A,
and 8B to be true and adjudicated Jackson guilty of aggravated assault with a deadly
weapon. It found the deadly weapon allegation to be true and assessed punishment
at fourteen years’ confinement. The trial court added a special finding on
8A. Failed to pay his $60/month supervision fee in July, September, and December
2007; in all but two months (May, December) in 2008; and January, March, and May
2009.
8B. Failed to pay his $20 crime stoppers fee within thirty days from the date of
community supervision.
3
Paragraph 7 alleged that on or about April 8, 2009, Jackson failed to
remain in Tarrant County and moved to Irving, Texas, without authorization from the
court or his community supervision officer. Jackson’s community supervision officer
testified that he told her that he had moved to Irving, Texas. Jackson said that he
lied about moving to Irving because he needed to give his community supervision
officer an address and his mother would not let him use hers.
3
reparations, in the amount of $3,291.50, 4 to the written judgment entered on July 24,
2009. This appeal followed.
III. Punishment
In his first point, Jackson complains that his fourteen-year sentence “for
marginal technical violations of probation was an abuse of the trial court’s discretion,
disproportional[,] and in violation of the 8[th] Amendment . . . prohibition of cruel and
unusual punishment.”
To preserve a complaint for our review, a party must have presented to the
trial court a timely request, objection, or motion that states the specific grounds for
the desired ruling if they are not apparent from the context of the request, objection,
or motion. Tex. R. App. P. 33.1(a)(1); Mosley v. State, 983 S.W .2d 249, 265 (Tex.
Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999). Further, the
trial court must have ruled on the request, objection, or motion, either expressly or
implicitly, or the complaining party must have objected to the trial court’s refusal to
rule. Tex. R. App. P. 33.1(a)(2); Mendez v. State, 138 S.W .3d 334, 341 (Tex. Crim.
App. 2004). W hen an appellant fails to object that his sentence is disproportionate
either at the time it is imposed or in a motion for new trial, nothing is preserved for
our review. Kim v. State, 283 S.W .3d 473, 475 (Tex. App.—Fort W orth 2009, pet.
4
A report from the Tarrant County Community Supervision and Corrections
Department in the trial court’s file stated that, as of July 23, 2009, Jackson’s
probation fees, fines, court costs, and attorney’s fees amounted to $3,291.50.
4
ref’d); see also Mercado v. State, 718 S.W .2d 291, 296 (Tex. Crim. App. 1986)
(stating that, as a general rule, appellant may not assert error pertaining to his
sentence or punishment when he failed to object or otherwise raise such error in the
trial court); Noland v. State, 264 S.W .3d 144, 152 (Tex. App.—Houston [1st Dist.]
2007, pet. ref’d) (holding that when appellant failed to object to his sentence at the
punishment hearing or to complain about it in his motion for new trial, he failed to
preserve his Eighth Amendment complaint that the punishment assessed was
“grossly disproportionate and oppressive”); Wynn v. State, 219 S.W .3d 54, 61 (Tex.
App.—Houston [1st Dist.] 2006, no pet.) (holding that defendant’s failure to object
to his sentence of life imprisonment as cruel and unusual punishment waived error).
Jackson’s complaint about the alleged disproportionality of his sentence was
not raised at the time it was imposed or in his motion for new trial. 5 Therefore, he has
preserved nothing for our review. See Kim, 283 S.W .3d at 475; Noland, 264 S.W .3d
at 151–52. W e overrule Jackson’s first point. 6
5
Jackson filed a motion for new trial, complaining that the verdict was
contrary to the law and evidence and alleging the discovery of new evidence
favorable to him since trial. The motion does not appear to have been presented to
the trial court, it was not ruled upon, and it does not raise his Eighth Amendment
complaint.
6
Further, punishment imposed within statutory limits is generally not subject
to challenge for excessiveness. See Kim, 283 S.W .3d at 475. Jackson was warned
that he faced the full range of punishment for the original offense—two to twenty
years’ confinement and up to a $10,000 fine—if the trial court revoked his deferred
adjudication community supervision. See Tex. Penal Code Ann. §§ 12.33, 22.02(b)
(Vernon Supp. 2010).
5
IV. Reparations
In his second point, Jackson makes the following arguments: The order to
pay $3,291.50 is invalid and should not be included in the judgment because
Jackson was indigent and the applicable governing statute is article 26.05(g) of the
code of criminal procedure. He appears to argue both that the entire amount is
invalid and that the attorney’s fees portion, individually, is invalid. Further, he states,
The only information in the record that appears to relate to [the
reparations] entry is a document addressed to the presiding Judge from
the Community Supervision and Corrections Department identified as
a “revocation restitution/reparation balance sheet” citing Article 42.03
Sec. 2b Code of Criminal Procedure. This document appears to tally
figures including probation fees, court costs and attorney[’]s fees. It is
date[d] July 23, 2009[,] a full six days after the judgment adjudicating
Appellant’s guilt was orally announce[d] in open court. The logical
conclusion is that this information was received and added to the
written judgment signed on July 24, 2009[,] well after the conclusion of
any court proceedings.[ 7 ]
He also argues that article 42.03, section 2(b) says nothing about attorney’s fees or
amounts other than “restitution or reparation,” there was never any restitution
ordered either when Jackson was placed on community supervision or afterward,
and that reparation and restitution both refer to the same thing: an amount to be
7
This appears to us to be a complaint that the reparation finding was
ordered too late.
6
paid to the victim of a crime. 8 Finally, he compares his case to Mayer v. State, 309
S.W .3d 552 (Tex. Crim. App. 2010).
Section 2(b) of article 42.03 of the code of criminal procedure states that “[i]n
all revocations of a suspension of the imposition of a sentence the judge shall enter
the restitution or reparation due and owing on the date of the revocation.” Tex. Code
Crim. Proc. Ann. art. 42.03, § 2(b) (Vernon Supp. 2010). Section 11(a)(11) of article
42.12 states that conditions of community supervision may include, as here,
conditions that the defendant shall “reimburse the county in which the prosecution
was instituted for compensation paid to appointed counsel for defending the
defendant in the case, if counsel was appointed[.]” See Tex. Code Crim. Proc. Ann.
art. 42.12, § 11(a)(11) (Vernon Supp. 2010); see also id. § 5(a) (Vernon Supp. 2010)
(stating that for deferred adjudication community supervision, “[t]he judge may . . .
require any reasonable conditions of community supervision . . . that a judge could
impose on a defendant placed on community supervision for a conviction that was
probated and suspended, including confinement”). Other basic conditions of
community supervision may include, as here, paying a fine, court costs, and a crime
stoppers fee. See id. § 11(a)(8), (21). In assessing payments as a term or condition
8
Jackson has provided no briefing on this sub-argument. See Tex. R. App.
P. 38.1(i). Nonetheless, we note that while “restitution” has its own section in the
code of criminal procedure and is payable to any victim of the offense, “reparation”
is not defined in the code of criminal procedure, and this court has treated them as
separate terms. See Tex. Code Crim. Proc. Ann. art. 42.037(a) (Vernon Supp.
2010); Brown v. State, No. 02-08-00063-CR, 2009 W L 1905231, at *2 (Tex.
App.—Fort W orth July 2, 2009, no pet.) (mem. op., not designated for publication).
7
of community supervision, the trial court “shall consider the ability of the defendant
to make payments.” Id. § 11(b). There is no indication in the record that the trial
court failed to consider his ability to pay when it imposed these conditions in June
2007.9 See id. § 11(b).
The unadjudicated judgment on plea of guilty and suspending imposition of
sentence, signed on June 22, 2007, reflects that Jackson pleaded guilty and
received ten years’ deferred adjudication community supervision, as well as a $500
fine (not suspended), attorney’s fees in the amount of $1,700, and court costs in the
amount of $276, “payable to and through the District Clerk of Tarrant County,
9
Jackson waived the attendance and record of a court reporter for his plea
bargain in the written plea admonishments, but the record reflects that Jackson had
sufficient financial resources to retain counsel in October 2006, before he filed three
different election of counsel forms between November 20 and December 18, 2006.
On his November 20 election of counsel form, Jackson initialed the option
stating, “Yes, I believe that I am entitled to an appointed lawyer,” and attached an
affidavit of indigency that reflected two dependents, his employer’s address and
supervisor’s name, total gross monthly income of $3,000 and total monthly expenses
of $1,500, $600 per month in rent, two 2002 automobiles worth $14,000 total, and
$1,100 in his “checking-savings” account. On his December 4 election of counsel
form, Jackson initialed the option stating, “No, I am not entitled to an appointed
lawyer.”
On his December 18 election of counsel form, Jackson again initialed the
option showing that he believed he was entitled to an appointed lawyer. In the
attached affidavit of indigency, he shows three dependents, his employer’s address
and supervisor’s name, $4,000 in total gross monthly income and $2,200 in total
monthly expenses, the two 2002 vehicles, and $1,500 in his checking account, and
he totals the value of his assets as $15,500.
8
Texas.” Jackson’s conditions of community supervision, filed on the same day the
deferred adjudication order was signed, reflect in condition 12 that Jackson was to:
Pay the following to and through the Community Supervision and
Corrections Department of Tarrant County, Texas. The first payment on
the above to be made on the 15th of July, 2007, and like payments on
the 15th day of each month thereafter until full payments are made.
(unless otherwise specified)
a. RESTITUTION in the amount of $_____, at the rate of
$_____ per month.
b. SUPERVISION FEE in the amount of $60.00, each month
during the period of supervision.
c. CRIME STOPPERS FEE in the amount of $20.00 to be
paid within 30 days from the date shown above.
Pay the following to and through the District Clerk of Tarrant County,
Texas. Payment schedule to be determined by the District Clerk of
Tarrant County, Texas.
d. FINE in the amount of $500.00. ATTORNEY FEE in the
amount of $1,700. COURT COSTS in the amount of
$276. _______ in the amount of $____.
Because Jackson waived having a court reporter at his plea bargain hearing, there
is nothing in the record to show that Jackson objected to any of these conditions in
the trial court. And the record does not indicate that he ever filed a petition for writ
of habeas corpus to challenge any of these conditions. See Tex. Code Crim. Proc.
Ann. art. 11.072 (Vernon 2005).
9
Contrary to Jackson’s argument in his original brief and in his petition for
discretionary review, we believe article 42.03, section 2(b) controls here, rather than
Mayer and article 26.05(g). 10
In Mayer, on direct appeal after being found guilty and having punishment
assessed, the Amarillo Court of Appeals sustained Mayer’s “repayment of appointed
attorney’s fees” issue. 309 S.W .3d at 553. The trial court had included
court-appointed attorney’s fees in its oral pronouncement of sentence and the
amount, $2,850, in the written judgment. Id. The Amarillo court relied on article
26.05(g), the fact that the record did not include any determination or finding by the
trial court that Mayer had any financial resources or was able to pay the fees, and
Mayer’s indigence and qualification for appointed counsel to support its decision.
Id.
The court of criminal appeals stated that, based on article 26.05(g), “the
defendant’s financial resources and ability to pay are explicit critical elements in the
trial court’s determination of the propriety of ordering reimbursement of costs and
fees.” Mayer, 309 S.W .3d at 556. And the court further relied on article 26.04(p),
10
Article 26.05(g) states,
If the court determines that a defendant has financial resources that
enable him to offset in part or in whole the costs of the legal services
provided, including any expenses and costs, the court shall order the
defendant to pay during the pendency of the charges or, if convicted,
as court costs the amount that it finds the defendant is able to pay.
Tex. Code Crim. Proc. Ann. art. 26.05(g) (Vernon Supp. 2010).
10
which states that a defendant who has been determined by the court to be indigent
is presumed to remain indigent for the remainder of the proceedings in the case
unless a material change in the defendant’s financial circumstances occurs, to
sustain the Amarillo court’s judgment in the face of the State’s argument that remand
for a redetermination of financial status was more appropriate than rendition. Id. at
557.
In the court of criminal appeals, the State argued that Mayer failed to preserve
the issue because he did not object in the trial court or in a motion for new trial,
comparing Mayer’s failure to object to “a situation in which an appellant first
challenges on appeal probation conditions that may be unreasonable,
unconstitutional, or violative of statutory provisions.” Id. at 554 (referencing Speth
v. State, 6 S.W .3d 530, 534 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1088
(2000)).11 However, Mayer couched his issue as an evidentiary sufficiency challenge
that did not require preservation for direct appeal. Id. at 554–55. The court did not
address Speth or article 42.03, section 2(b), but it did not need to, as Mayer’s case
involved a direct appeal from a jury trial and not a revocation of deferred adjudication
community supervision.
11
The court of criminal appeals noted in Speth that section 11(b)’s provision
prohibiting the trial court from imposing payments without considering the
defendant’s ability to make the payments could be affirmatively waived by a
defendant entering into a probation contract containing such terms without objection.
Speth, 6 S.W .3d at 534 n.8.
11
The Amarillo court has recently addressed the inclusion of attorney’s fees in
a judgment of conviction after the revocation of a deferred adjudication community
supervision. Reyes v. State, No. 07-10-00124-CR, 2010 W L 4008534, at *1–2 (Tex.
App.—Amarillo Oct. 13, 2010, no pet. h.). Reyes was placed on deferred
adjudication after he pleaded guilty to aggravated assault with a deadly weapon and,
as a condition of his community supervision, he was ordered to pay attorney’s fees
of $750. Id. at *1. After the State moved to revoke his community supervision, the
trial court granted the motion, sentenced Reyes to ten years in prison, and ordered
him to pay attorney’s fees of $1,050, and other amounts not pertinent to our
discussion here. Id. Reyes appealed, complaining that the trial court erred by
ordering him to pay $1,050 in attorney’s fees because the record “contained
insufficient evidence to show that he ‘had any financial resources’ from which to pay
them.” Id. The Amarillo court agreed only in part, stating,
This court previously held, in Mayer v. State, 274 S.W .3d 898 (Tex.
App.—Amarillo 2008), aff’d, 309 S.W .3d 552 (Tex. Crim. App. 2010),
that a trial court generally erred by ordering a defendant to pay a fee for
a court-appointed attorney when the record contained no evidence
illustrating that he had sufficient financial resources to pay it. Id. at
901–02. Yet, we were not dealing with fees arising from a plea bargain
and levied as a condition of probation there. In the latter circumstance,
the result may not be the same. This is so because an award of
community supervision (or probation) is not a right, but a contractual
privilege. Speth v. State, 6 S.W .3d 530, 534 (Tex. Crim. App. 1999).
Additionally, the conditions appended to the grant of community
supervision are terms of the contract entered into between the trial
court and the defendant. Id. More importantly, those to which no one
objects are considered to be affirmatively accepted as part of the
contract, which means, in turn, that the accused normally waives any
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complaint with regard to them. Id. In other words, one benefitting from
the contractual privilege of probation must complain at trial about any
conditions he deems objectionable, and unless he does that, belated
objections are waived. Id.
Given Speth, we agree with the State that appellant should have
complained to the trial court about the condition of his probation
obligating him to pay $750 in attorney’s fees at the time the condition
was imposed. Because he did not, he not only affirmatively accepted
it but also waived any objection to it. The same is not true of the
additional $300 assessed once appellant was adjudicated guilty; the
imposition of that sum is controlled by the holding in Mayer. And,
because the record does not reflect that appellant had the financial
means to pay it, the trial court erred by imposing it. Accordingly, we
modify the trial court’s judgment by reducing the amount of attorney’s
fees payable by appellant from $1,050 to $750.
Id. at *1–2.
Here, the record reflects that the amount of reparation included in the second
judgment is the same as the amount included in the deferred adjudication
community supervision terms and conditions, to which Jackson made no objection
in 2007. See id. As in Reyes, because Jackson did not object, he not only
affirmatively accepted the amount but also waived any objection to it now. See id.
Additionally, because article 42.03, section 2(b) states that the trial court in a
revocation “shall enter the restitution or reparation due and owing on the date of the
revocation,” upon revoking Jackson’s community supervision, the trial court had no
choice but to enter the amount of reparation due and owing when it signed the
written judgment. See Tex. Code Crim. Proc. Ann. art. 42.03, § 2(b) (emphasis
added); see also Armstrong v. State, 320 S.W .3d 479, 481 (Tex. App.—Amarillo
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2010, pet. granted) (stating that costs in clerk’s bill of costs did not have be
incorporated by reference into the judgment to be valid, citing Weir v. State, 278
S.W .3d 364, 366–67 (Tex. Crim. App. 2009)); Brown, 2009 W L 1905231, at *2
(holding that because reparations are not punishment and part of the sentence, they
do not have to be included in the trial court’s oral pronouncement of sentence to be
properly included in the written judgment). W e overrule Jackson’s second point.
V. Conclusion
Having overruled both of Jackson’s points, we affirm the trial court’s judgment.
PER CURIAM
PANEL: MCCOY, GARDNER, and W ALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 23, 2010
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