James Edward Bass v. State ( 2018 )

NO. 12-17-00250-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JAMES EDWARD BASS, § APPEAL FROM THE 241ST
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
James Edward Bass appeals his conviction for making a false statement to obtain credit.
In three issues, he argues that the trial court’s restitution order is not supported by sufficient
evidence, the trial court’s withholding order is not supported by the bill of costs, and the trial
court’s judgment incorrectly reflects his plea. We modify the trial court’s judgment, and affirm
as modified.
BACKGROUND
Appellant was indicted for the felony offense of making a materially false statement to
obtain credit. On August 15, 2016, Appellant pleaded “guilty” pursuant to a plea agreement, and
the State recommended five years deferred adjudication community supervision with $10,000 in
restitution. The trial court’s written order of deferred adjudication reflected that Appellant owed
$229 in court costs and $10,000 in restitution to Peltier Auto.
Subsequently, the State filed a motion to adjudicate Appellant’s guilt, alleging that
Appellant violated the terms of his community supervision. After a hearing, the trial court found
the allegations in the state’s motion to adjudicate “true” and revoked his community supervision.
The trial court sentenced Appellant to five years of imprisonment. This appeal followed.
RESTITUTION AND COURT COSTS
In Appellant’s first and second issues, he argues that the trial court erred because the
judgment and withholding order reflect that Appellant owes $10,000 in restitution and $229 in
court costs, despite undisputed evidence in the record that Appellant made some payments
towards restitution and court costs. The State concedes error on these two points. We will
address issues one and two together.
Standard of Review and Applicable Law
Texas law authorizes a sentencing court to order payment of restitution to the victim for
losses sustained as a result of the convicted offense. TEX. CODE CRIM. PROC. ANN. art. 42.037(a)
(West Supp. 2017). Due process requires a factual basis in the record for the amount of
restitution ordered. Martin v. State, 874 S.W.2d 674, 676 (Tex. Crim. App. 1994); see also
Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. [Panel Op.] 1980). Further,
restitution must be “just,” that is, supported by sufficient factual evidence in the record that the
expense was incurred. Thompson v. State, 557 S.W.2d 521, 525-26 (Tex. Crim. App. 1977).
Challenges to the sufficiency of the evidence supporting a restitution order can be raised
for the first time on appeal. Idowu v. State, 73 S.W.3d 918, 921-22 (Tex. Crim. App. 2002). We
review a trial court’s restitution order for abuse of discretion. Cartwright, 605 S.W.2d at 289.
The trial court abuses its discretion when it acts in an arbitrary or unreasonable manner.
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). Thus, we review the record
to determine if there was sufficient factual evidence of an amount which the court could find
“just.” Cartwright, 605 S.W.2d at 289.
Court costs are pre-determined, legislatively-mandated obligations resulting from a
conviction. Houston v. State, 410 S.W.3d 475, 477–78 (Tex. App.—Fort Worth 2013, no pet.);
see Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014). “Generally, a bill of costs
must (1) contain the items of cost, (2) be signed by the officer who charged the cost or the officer
who is entitled to receive payment for the cost, and (3) be certified.” Petty v. State, 438 S.W.3d
784, 803 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d); see TEX. CODE CRIM. PROC. ANN.
arts. 103.001, 103.006 (West 2006 and West Supp. 2017). “Absent a challenge to a specific cost
or basis for the assessment of that cost, a bill of costs is sufficient.” Johnson, 423 S.W.3d at
396.
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A challenge to the sufficiency of the evidence supporting court costs is reviewable on
direct appeal in a criminal case. See Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App.
2011). We measure sufficiency by reviewing the record in the light most favorable to the award.
See Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Johnson v. State, 405 S.W.3d
350, 354 (Tex. App.—Tyler 2013, no pet.).
Analysis
During the hearing on the State’s motion to adjudicate guilt, a community supervision
officer from Smith County testified that Appellant made some payments towards restitution, and
the attorney representing the State told the court Appellant still owed $9,280 in restitution.
Nevertheless, the trial court’s judgment adjudicating guilt and withholding order both state that
Appellant owes $10,000 in restitution. Thus, the trial court’s judgment and withholding order
are not “just” because they are not supported by a factual basis in the record. See Martin, 874
S.W.2d at 676; see also Cartwright, 605 S.W.2d at 289; Thompson, 557 S.W.2d at 525-26.
Therefore, the trial court abused its discretion and we sustain Appellant’s first issue.
With respect to court costs, the clerk’s record contains a certified, itemized bill of costs
electronically signed by a representative of the district clerk’s office, who is entitled to receive
payment of the costs. See Petty, 438 S.W.3d at 803. The bill of costs reflects that Appellant paid
$100 towards court costs and owes an additional $129. The trial court’s judgment adjudicating
guilt indicates that Appellant owes $129 in court costs; however, the trial court’s withholding
order states that Appellant owes $229 in court costs. Because some costs have already been
paid, as evidenced by the bill of costs, the evidence is insufficient to support the trial court’s
withholding order reflecting $229 in court costs. See Lack v. State, 12-13-00052-CR, 2013 WL
3967698, at *1 (Tex. App.—Tyler July 31, 2013, no pet.) (mem. op., not designated for
publication). Accordingly, we sustain Appellant’s second issue.
APPELLANT’S PLEA
In Appellant’s third issue, he argues “although not substantive error, the written judgment
of the trial court reflects that Mr. Bass entered pleas of ‘true’ to the charged
allegations…however, the record is clear from the transcribed proceedings that Appellant, in
fact, contested all of the allegations made against him.” Appellant urges this court to reform the
judgment to reflect that he entered pleas of “not true” to the State’s allegations.
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The State argues “the trial court never elicited formal pleas from Bass regarding the
alleged community supervision violations, but they can be deduced from his testimony…because
his explanations are fairly described as admissions, it is more accurate to say that he pleaded
‘true’ than ‘not true.’” The State urges us to overrule Appellant’s third issue.
Analysis
The record reflects that the trial court did not ask Appellant to enter a formal plea of
“true” or “not true” to the allegations in the State’s motion to adjudicate. The record indicates
that the trial court admonished Appellant of the consequences if the court found the allegations
in the State’s motion “true,” then asked the parties “do you have the admonishments stipulation
of evidence, or is this going to be a full hearing?” The attorney representing the State responded,
“[I]t’s going to be a full hearing, is my understanding, Your Honor.” The trial court then asked
if the State was ready to proceed and the State responded that it was. The State offered
testimony from the community supervision officer regarding Appellant’s community supervision
violations. Appellant and his wife testified in his defense.
Article 42A of the code of criminal procedure states that upon violation of a condition of
deferred adjudication community supervision, the defendant is entitled to a hearing limited to a
determination by the court of whether the court will proceed with an adjudication of guilt on the
original charge. TEX. CODE CRIM. PROC. ANN. arts. 42A.108 (a), (b), 42A.751(d) (West Supp.
2017). At the hearing, the State must prove that the greater weight of the credible evidence
before the trial court creates a reasonable belief that a condition of probation has been violated as
alleged in the motion to revoke. See Arterberry v. State, 800 S.W.2d 580, 581 (Tex. App.—
Tyler 1990, no pet.). A plea of true, standing alone, is sufficient to support a trial court’s
revocation order. See Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. 1979).
Here, Appellant never entered a plea of true, nor did he sign a stipulation of evidence
admitting to the State’s allegations. See id. (holding that appellant’s plea of true and written
stipulation offered into evidence supported the court’s finding the violation true). The State
urges us to infer a plea of true based on Appellant’s testimony. We decline to do so. The trial
court’s statements regarding a “full hearing,” the State’s presentation of live testimony to support
the allegations, and the absence of written stipulations to the allegations make clear that
Appellant was not pleading “true” to the State’s allegations. Accordingly, we sustain
Appellant’s third issue.
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CONCLUSION
We have the authority to modify a judgment to make the record speak the truth when we
have the necessary data and information to do so. See TEX. R. APP. P. 43.21(B); Brewer v. State,
572 S.W.2d 719, 723 (Tex. Crim. App. 1978); Ingram v. State, 261 S.W.3d 749, 754 (Tex.
App.–Tyler 2008, no pet.); Davis v. State, 323 S.W.3d 190, 198 (Tex. App.–Dallas 2008, pet.
ref’d). Because we have the necessary data and evidence to reform the judgment in this case, we
conclude that the trial court’s judgment should be modified to reflect pleas of “not true” to the
State’s allegations. See TEX. R. APP. P. 43.2(b); see also Brewer, 572 S.W.2d at 723; Ingram,
261 S.W.3d at 754; Davis, 323 S.W.3d at 198. Furthermore, the trial court’s judgment and
withholding order should be modified to reflect the correct amount of restitution and court costs.
See TEX. R. APP. P. 43.2(b); see also Brewer, 572 S.W.2d at 723; Ingram, 261 S.W.3d at 754;
Davis, 323 S.W.3d at 198.
Accordingly, having sustained Appellant’s first, second, and third issues, we modify the
trial court’s judgment adjudicating guilt by deleting “$10,000” under “Restitution” and replacing
it with “$9,280.” We further modify the trial court’s judgment adjudicating guilt by deleting
“True” under “Plea to Motion to Adjudicate” and replacing it with “not true.” We modify the
trial court’s withholding order to delete “$10,229” and replace it with “$9,409.” We affirm the
judgment of the trial court as modified.
GREG NEELEY
Justice
Opinion delivered April 18, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
APRIL 18, 2018
NO. 12-17-00250-CR
JAMES EDWARD BASS,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 241st District Court
of Smith County, Texas (Tr.Ct.No. 241-1321-15)
THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below should be modified and, as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment below be modified by deleting “$10,000” under “Restitution” and replacing it
with “$9,280.” We further modify the trial court’s judgment adjudicating guilt by deleting
“True” under “Plea to Motion to Adjudicate” and replacing it with “not true.” We modify the
trial court’s withholding order to delete “$10,229” and replace it with “$9,409” and as modified,
the trial court’s judgment is affirmed; and that this decision be certified to the trial court below
for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.