State v. Abrie Gooden ( 2017 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-17-00238-CR
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THE STATE OF TEXAS, Appellant
V.
ABRIE GOODEN, Appellee
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On Appeal from the County Court
San Jacinto County, Texas
Trial Cause No. 2017-148
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MEMORANDUM OPINION
The State of Texas appeals from a final judgment rendered after Abrie Gooden
pleaded guilty to a charge of driving while intoxicated. The judgment reflects that
the court suspended Gooden’s six month jail sentence and then placed Gooden on
community supervision for a period of six months. In two issues, the State argues
that the trial court “improperly altered the judgment after all parties had signed” it,
and that the trial court “improperly waived fees owed to the Probation Department.”
See generally Tex. Code Crim. Proc. Ann. art. 44.01(a)(2) (West Supp. 2016)
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(allowing the State to appeal an order in a criminal case if the order arrests or
modifies a judgment); id. art. 44.01(b) (West Supp. 2016) (allowing the State to
appeal a sentence in a criminal case based on the ground that the sentence is illegal).
In response to the State’s brief, Gooden filed a brief that argues the trial court was
authorized to modify any of the conditions it placed on him when it placed him on
community supervision. See generally id. art. 42A.051(b) (West Supp. 2016)
(authorizing a judge that has jurisdiction over the case to modify the conditions of
community supervision at any time during the period of community supervision).
The change in the judgment that forms the basis of the State’s complaint on
appeal concerns whether the trial court could unilaterally reduce a $50 monthly
probation fee to zero after allegedly having agreed to a judgment that included the
$50 fee. Generally, the conditions imposed by a court on a defendant in a community
supervision order are not considered to be part of the defendant’s sentence. See Speth
v. State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999). The State argues that under the
plea bargain agreement the trial court approved, Gooden agreed to pay the $50 fee.
In response, Gooden argues that his plea agreement does not expressly state that he
agreed to pay the $50 fee.
The record that is before us does not contain a copy of the written plea
agreement that Gooden made with the State, and no reporter’s record was made of
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the hearing on Gooden’s plea. The certification the trial court signed, which concerns
Gooden’s right to appeal, states that the case “is a plea bargain case, and the
Defendant has NO right of appeal[.]” Consequently, from the face of the record
before us in the appeal, we cannot determine whether the judgment the trial court
signed is consistent or inconsistent with the terms of the plea agreement that the State
has relied upon in its brief.
In the absence of a reporter’s record, we are generally required to presume
that the judgment the trial court rendered is consistent with the evidence that resulted
in the judgment from which the party appeals. See Breazeale v. State, 683 S.W.2d
446, 450-51 (Tex. Crim. App. 1985) (op. on reh’g). While in the briefing the State
filed with its appeal, the State submitted affidavits from two people who were
present in court when the judgment was signed, the affidavits are not part of the
record that we may consider in deciding the State’s appeal.
Under the Rules of Appellate Procedure, matters not shown in the record may
be supported by affidavit in support of a motion. See Tex. R. App. P. 10.2. However,
to complain about a matter in an appeal when the matter does not otherwise appear
in the record, a party is required to file a formal bill of exception. See Tex. R. App.
P. 33.2. And, “the appealing party carries the burden to ensure that the record on
appeal is sufficient to resolve the issues presented.” London v. State, 490 S.W.3d
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503, 508 (Tex. Crim. App. 2016). “The failure to provide a sufficient appellate
record precludes appellate review of a claim.” Id.
In Gooden’s case, the record does not show that the State presented the
affidavits describing what it claims occurred in the trial court through a motion filed
in the trial court. See Tex. R. App. P. 33.2(c). The State also made no offer of proof
when the case was before the trial court. See generally Tex. R. Evid. 103(a)(2). The
affidavits are not properly part of the record that we may consider in deciding the
State’s appeal. See Yarbrough v. State, 57 S.W.3d 611, 615-16 (Tex. App.—
Texarkana 2001, pet. ref’d). Because we must presume the judgment that is in the
record is consistent with the evidence and the agreements made by the parties, we
overrule issue one.
Additionally, because no reporter’s record was filed in the appeal, the State
has not met its burden to show that the trial court did not have the statutory authority
to waive the $50 probation fee. Article 42A of the Texas Code of Criminal Procedure
requires that a judge who grants community supervision set a monthly probation fee
“of not less than $25 and not more than $60[.]” See Tex. Code Crim. Proc. Ann. art.
42A.652(a) (West Supp. 2016). However, the fee may be waived if the judge
determines that paying the fee would cause the defendant a significant financial
hardship. Id. art. 42A.652(b) (West Supp. 2016).
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While the State argues that the trial court did not find Gooden to be indigent,
and that the court may not waive the fee unless paying it would cause the defendant
a significant financial hardship, article 42A.652(b) does not expressly require the
trial court to make written findings to waive the fee. See id. In the absence of a
reporter’s record, we presume the evidence presented in the hearing on Gooden’s
plea supports the trial court’s judgment. Mackintosh v. State, 845 S.W.2d 361, 364
(Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). We overrule issue two.
Having overruled the State’s issues, we affirm the trial court’s judgment.
AFFIRMED.
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HOLLIS HORTON
Justice
Submitted on November 22, 2017
Opinion Delivered December 6, 2017
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
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