Douglas Andrew Moore v. the State of Texas ( 2022 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-20-00106-CR
NO. 09-20-00107-CR
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DOUGLAS ANDREW MOORE, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 88th District Court
Hardin County, Texas
Trial Cause Nos. 23669 & 24559
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MEMORANDUM OPINION
The State indicted Douglas Andrew Moore for two separate counts of
aggravated assault with a deadly weapon, a second-degree felony. See Tex. Penal
Code Ann. § 22.02(a)(2), (b). Moore pled no contest to both counts, initially
receiving deferred adjudication community supervision. Prior to the completion of
the period of community supervision, the State moved to revoke on both counts. In
a single proceeding, the trial court adjudicated Moore guilty and sentenced him to
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five years of confinement on each count to run concurrently. Each written judgment
adjudicating guilt also incorporated an “order of restitution” requiring Moore to pay
costs, fees, and a $300 fine from the original deferred adjudication proceeding listed
in a Bill of Costs to the District Clerk’s office, plus $65 in each case for new court
costs associated with the proceeding adjudicating his guilt.
Counsel filed a brief containing his professional evaluation that after a careful
review of the record, he could find no arguable grounds on which to appeal and filed
a motion to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967); High v.
State, 573 S.W.2d 807, 810 (Tex. Crim. App. 1978). After independently reviewing
the record, we agree there are no arguable grounds that would support an appeal. See
Anders, 386 U.S. at 744; High, 573 S.W.2d at 811. Therefore, it is unnecessary to
appoint new counsel to re-brief this appeal. Cf. Stafford v. State, 813 S.W.2d 503,
511 (Tex. Crim. App. 1991). However, we find it necessary to modify the trial
court’s judgments. See Bray v. State, 179 S.W.3d 725, 726 (Tex. App.—Fort Worth
2005, no pet.) (holding an appellate court has the authority to modify the judgment
in an Anders case and to affirm the judgment as modified).
I. Background
At the revocation hearing which consolidated the two separate counts of the
same offense in a single proceeding, Moore pled “not true” to the violations. Moore’s
probation officer testified regarding multiple violations of the terms of his probation.
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The trial court found allegations (k), (dd), (hh), and (oo) true, specifically that
Moore: (1) failed to abstain from drugs or alcohol; (2) failed to enter and complete
an anger management course; (3) failed to complete his community service; and (4)
failed to complete a State of Texas Contracted Intermediate Sanction Facility
program but found the remaining allegations in the motions to revoke “not true.”1
During the revocation hearing, the trial court orally pronounced, “Sentence him to
five years TDCJ on each case to run concurrent.” There was no oral pronouncement
of fines or restitution.
II. Judgments Adjudicating Guilt
The judgments adjudicating guilt each carried over the original fines and fees
from the orders of deferred adjudication and contained the following language in a
parenthetical notation under the “Restitution Payable to:” heading in the judgments,
“See special finding or order of restitution which is incorporated herein by this
reference.”
A. Trial Cause Number 23669
In trial cause 23669, the original order placing Moore on deferred adjudication
included a $300 fine and $349 in court costs. The judgment adjudicating guilt
contained the following language:
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This was an amended term of Moore’s probation to which he agreed after
failing to complete a traditional anger management course.
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DEFENDANT PLED TRUE TO ALL ALLEGATIONS IN THE
MOTION TO REVOKE PROBATION FILED ON 1/21/2020.
THE COURT FOUND ALL ALLEGATIONS TO BE TRUE. THE
COURT FOUND THE DEFENDANT GUILTY AND
SENTENCED THE DEFENDANT TO FIVE (5) YEARS IN THE
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION, WITH 170 DAYS CREDIT. $65
COURT COSTS ARE ASSESSED.
COURT COSTS, ATTORNEY FEES, AND FINES IN THE
AMOUNT OF $409.00 ARE DELINQUENT AND ARE OWED
FROM 7/5/2018 ADJUDICATION. COURT COSTS,
ATTORNEY FEES, AND FINES FROM TODAY'S
ADJUDICATION TOTAL $65.00. TOTAL FEES OWED $474.00
MUST BE PAID TO THE DISTRICT CLERK’S OFFICE.
The attached Bill of Costs in cause 23669 shows a total amount of $474, including
$409 from the original deferred proceeding plus $65 from the revocation proceeding.
However, the $409 balance from the original deferred proceeding included $300
labeled as “FINES” listed in the Bill of Costs.
B. Trial Cause Number 24599
In trial cause 24599, the order of deferred adjudication included a $300 fine,
$349 in costs and fees, and $650 for attorney’s fees. The judgment adjudicating guilt
contained the following language:
DEFENDANT PLED TRUE TO ALL ALLEGATIONS IN THE
MOTION TO REVOKE PROBATION FILED ON 1/21/2020.
THE COURT FOUND ALL ALLEGATIONS TO BE TRUE. THE
COURT FOUND THE DEFENDANT GUILTY AND
SENTENCED THE DEFENDANT TO FIVE (5) YEARS IN THE
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION. WITH 170 DAYS CREDIT. $65
COURT COSTS ARE ASSESSED.
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COURT COSTS, ATTORNEY FEES, AND FINES IN THE
AMOUNT OF $1,059.00 ARE DELINQUENT AND ARE OWED
FROM 7/5/2018 ADJUDICATION. COURT COSTS,
ATTORNEY FEES, AND FINES FROM TODAY’S
ADJUDICATION TOTAL $65.00. TOTAL FEES OWED
$1,124.00 MUST BE PAID TO THE DISTRICT CLERK’S
OFFICE.
The Bill of Costs in cause 24599 shows total amount of $1,124 including a balance
of $1059 from the original deferred proceeding plus $65 court costs from the
revocation proceeding identical to those in trial cause 23669. The $1059 balance
from the original deferred proceeding includes $300 labeled as “FINES[.]”
III. Law
Although the orders deferring adjudication and placing Moore on community
supervision included fines and court costs, the trial court’s subsequent adjudication
of guilt set aside the order deferring adjudication, including any fines. See Taylor v.
State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004). A trial court must orally
pronounce a defendant’s sentence in the defendant’s presence. See Tex. Code Crim.
Proc. Ann. art. 42.03 § 1(a); Taylor, 131 S.W.3d at 500. If there is a conflict between
the oral pronouncement of sentence and the written judgment, the oral
pronouncement controls. See Taylor, S.W.3d at 500. Fines are punishment and
generally must be orally pronounced in the defendant’s presence. See Armstrong v.
State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011). Thus, in a deferred adjudication
situation, the fine from the original order of deferred adjudication does not carry
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over if the defendant is adjudicated guilty, unless the trial court imposes a fine at the
proceeding adjudicating guilt when it orally pronounces the defendant’s sentence.
See Taylor, 131 S.W.3d at 502.
Court costs are compensatory in nature and not punitive, therefore they do not
have to be included in the oral pronouncement as a precondition to their inclusion in
the written judgment. Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009).
Although the trial court’s final judgment characterizes the amounts owed in the Bill
of Costs payable as restitution, except the fines, they are court costs and fees rather
than punishment. See generally Tex. Code of Crim. Proc. Ann. ch. 102 (outlining
certain costs and fees permissible in criminal proceedings). In such circumstances,
we will modify the judgment to properly characterize the amounts owed. See Revia
v. State, No. 09-07-068-CR, 2007 WL 2446099, at *2-3 (Tex. App.—Beaumont
Aug. 29, 2007, no pet.) (mem. op., not designated for publication) (modifying
judgment to properly characterize amounts owed as court costs and fees rather than
restitution).
The $65 court costs in trial cause 24599 associated with the proceeding
adjudicating guilt is likewise problematic. “In a single criminal action in which a
defendant is convicted of two or more offenses or of multiple counts of the same
offense, the court may assess each court cost or fee only once against the defendant.”
Tex. Code Crim. Proc. Ann. art. 102.073(a); see also Clark v. State, 592 S.W.3d
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919, 933 (Tex. App.—Texarkana 2019, pet ref’d) (explaining since defendant was
convicted of two or more offenses in a single criminal action, the court could only
order payment of court costs once); Cain v. State, 525 S.W.3d 728, 734 (Tex. App.—
Houston [14th Dist.] 2017, pet. ref’d) (modifying judgment to delete duplicative fees
and costs when a defendant was convicted of multiple counts of the same offense in
a single criminal action). Because Moore was convicted of multiple counts of the
same offense in a single criminal action, the trial court could only assess these costs
and fees once against Moore. See Tex. Code Crim. Proc. Ann. art. 102.073(a); Clark,
592 S.W.3d at 933.
IV. Conclusion
We modify the judgment in trial cause 23669 as follows: (1) we delete any
reference to the $300 fine or the word “fines” in the judgment and delete the $300
“FINE” from the attached Bill of Costs; (2) we add “See attached Bill of Costs”
under the subheadings “Court Costs:” and “Reimbursement Fees:” to reflect that the
remaining amounts are properly characterized as “court costs and fees” not as
“restitution” and delete the language under the “Restitution Payable to:” subheading;
(3) to reflect Moore pled “not true” rather than “true” to the allegations; and (4) we
delete the language that the trial court found all allegations “true” and add language
to indicate “the trial court specifically found allegations k, dd, hh, and oo ‘true’ and
the remaining allegations ‘not true.’”
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We likewise modify the judgment in trial cause 24599 as follows: (1) we
delete any reference to the $300 fine in the judgment or the word “fines” and delete
the $300 “FINE” from the attached Bill of Costs; (2) we delete the $65 in newly-
assessed court costs under the “Court Costs:” subheading and attached Bill of Costs;
(3) we add “See attached Bill of Costs” under the subheadings “Court Costs:” and
“Reimbursement Fees:” to reflect that the remaining amounts are properly
characterized as “court costs and fees” not as “restitution” and delete the language
under the “Restitution Payable to:” subheading; (4) to reflect Moore pled “not true”
rather than “true” to the allegations; and (5) we delete the language that the trial
court found all allegations “true” and add language to indicate “the trial court
specifically found allegations k, dd, hh, and oo ‘true’ and the remaining allegations
‘not true.’”
In all other respects, the judgments are affirmed.
AFFIRMED AS MODIFIED.
________________________________
CHARLES KREGER
Justice
Submitted on February 1, 2021
Opinion Delivered January 12, 2022
Do Not Publish
Before Golemon, C.J., Kreger and Horton, JJ.
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