State v. Ty Kelly Gardner ( 2010 )

NO. 07-09-0377-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

AUGUST 5,  2010

THE STATE OF TEXAS, APPELLANT

v.

TY KELLY GARDNER, APPELLEE

 FROM THE COUNTY COURT AT LAW NO. 2 OF POTTER COUNTY;

NO. 124935; HONORABLE PAMELA COOK SIRMON, JUDGE

Before QUINN, C.J., CAMPBELL, J., AND BOYD, S.J.[1]

MEMORANDUM OPINION

            In this appeal, the State of Texas presents three issues which, it contends, demonstrate that the trial court reversibly erred in quashing the information.  In the first count of the two-count indictment, Ty Kelly Gardner (herein Gardner) was charged with intentionally, knowingly, or recklessly causing bodily injury to Charity Cravy (Cravy), at the time a member of Gardner’s household, by striking her with his hand or with a vehicle door.  In the second count, he was charged in identical language except for the allegation that Cravy was a member of his household.  The information was subsequently amended to change the date of the alleged offense but was without any other change.  For reasons we later state, we reverse the order of the trial court and remand the cause for further proceedings.

            In pursuing its appeal, the State presents three issues for our decision:  1) what is the proper standard of review of a trial court order quashing an information,  2) was the information with which this appeal is concerned specific enough to inform the defendant of the accusation against him, and 3) are the two acts alleged in the information separate offenses?  Because its decision is determinative of this appeal, we will proceed directly to consider the third issue.

            Initially, because it is a question of law, we review the sufficiency of a charging instrument de novo.  State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).  In doing so, we must first determine if the information here in question gave adequate notice of the alleged criminal conduct.  If we find that notice sufficient, our inquiry is ended. However, if we determine the notice was insufficient, we must then determine if, in the context of the case, the lack of notice had an impact on the defendant’s ability to prepare a defense, and finally, if it did, how great the impact was.   Adams v. State, 707 S.W.2d  900, 903 (Tex. Crim. App. 1986). 

              The gist of appellee’s motion to quash was that his fifth, sixth, and fourteenth amendment rights were denied by the “failure of the [i]nformation to allege an essential element of the offense, namely what specific object was used to strike Charity Cravy.” Section 22.01 of the Texas Penal Code provides that “[a] person commits an offense if the person . . . intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse.”  Tex. Penal Code Ann. §22.01(a)(1) (Vernon Supp. 2009).  In instances in which the charging instrument alleges, in a single count, two separate offenses arising under the same penal code provision, the jury must agree on which offense it finds the defendant committed. Jefferson v. State, 189 S.W.3d 305, 311 (Tex. Crim. App. 2006); Dolkart v. State, 197 S.W.3d 887, 892 (Tex. App.–Dallas 2006, pet. ref’d).  Thus, it is necessary to identify the essential elements or gravamen of an offense and the alternate modes of its commission, if any there be.  Pizzo v. State, 235 S.W.3d 711, 714 (Tex. Crim. App. 2007).  This can be best accomplished by diagramming the statutory text according to proper grammar rules.

            As the Pizzo court noted, “the essential elements of an offense are, at a minimum: 1) ‘the subject (the defendant)’; 2) ‘the main verb’; 3) ‘the direct object if the main verb requires a direct object (i.e., the offense is a result-oriented crime’; [4] ‘the specific occasion’; and [5] the requisite mental state.”  Id. at 714-15.  Furthermore, the court opined, “[t]he means of commission or nonessential unanimity elements are generally set out in ‘adverbial phrases’ that describe how the offense was committed” and, it further reasoned, “[s]uch phrases are commonly preceded by” the preposition “by.”  Id. Moreover, the transitive verb indicates the prohibited conduct about which the jury must be unanimous.   See White v. State, 208 S.W.3d 467, 468 (Tex. Crim. App. 2006) (citing Jefferson v. State, 189 S.W.3d at 314 (Cochran, J. concurring)).  The unanimity requirement is not violated when the jury has the option of choosing between alternative modes of commission of the offense. Pizzo v. State, 235 S.W.3d at 715.  Thus, different modes of commission of an offense may be stated in a jury instruction if the charging instrument alleges the different means of committing an offense in the conjunctive.  Id.  Moreover, when the acts and commission all involve the same injury to the same complainant during the same transaction with the same level of culpability, dispensing with jury unanimity does not violate due process.  Jefferson v. State, 189 S.W.3d at 313.

            In this case, the State alleged that appellant (the subject) committed an assault (the verb) by either striking the victim (the direct object) with his cast, his arm, or with the car door (the “adverbial phrase”).  That being so, the State did allege an offense and included alternate ways by which it could have been committed.  Thus, the trial court erred in granting the motion to quash the information.

            Accordingly, we must, and do hereby, reverse the trial court dismissal order and remand the cause for further proceedings.     

                                                                                    John T. Boyd

                                                                                    Senior Justice

Do not publish.

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[1]John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.  Tex. Gov=t Code Ann. '75.002(a)(1) (Vernon 2009).

margin-bottom:0in;margin-bottom:.0001pt; text-align:center;line-height:normal'>FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 27, 2010

KENNETH GLENN WEBB, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

 FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

NO. 11,994-B, 18-617-B, 18-618-B; HONORABLE JOHN B. BOARD, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

OPINION ON ABATEMENT

            On February 25, 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 Webb’s inmate trust account the following amounts: (1) $3,071.25 in cause number 11,994-B; (2) $1,101.50 in cause number 18,617-B; and (3) $1,096.50 in cause number 18,618-B.  Webb filed pro se notices of appeal on April 26, 2010, challenging the withdrawal notifications.  While each withdrawal notification contained the statement that "court costs, fines and fees have been incurred as represented in the certified Bill of Cost/Judgment attached hereto," none contained an attachment of any kind.  Furthermore, while the judgment entered in cause number 11,994-B does include an order that the State recover "all costs," the judgments in cause numbers 18,617-B and 18,618-B are silent as to the assessment of 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 are 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 Webb has been given all that due process requires.  Specifically, we are unable to determine whether Webb 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.  In that respect, we note that the "risk of an erroneous deprivation of [Webb's] interests through the procedures used" in this particular case is apparent on the face of the documents contained in the Clerk's Record.[4]  See id. at 320.

            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 Webb'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 Webb 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

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[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.

[4] In cause number 11,994-B the withdrawal order commands the Texas Department of Criminal Justice to withdraw $3,071.25, but the Bill of Costs shows the amount due as being $2,908.59.  The Bill of Costs also includes $350.00 for attorney's fees.  In cause number 18,617-B the withdrawal order was for the sum of $1,101.50, whereas the Bill of Costs reflected an amount due of $938.84, including $800.00 in attorney's fees. Finally, in cause number 18,618-B, the withdrawal order was for the sum of $1,096.50, whereas the Bill of Costs reflected an amount due of $1,072.63, including $800.00 in attorney's fees.