Eddie Ray Jackson v. State ( 2016 )

ACCEPTED
12-16-00102-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
7/6/2016 9:43:02 PM
Pam Estes
CLERK
ORAL ARGUMENT NOT REQUESTED
NO. 12-16-00102-CR FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
IN THE COURT OF APPEALS 7/6/2016 9:43:02 PM
12TH JUDICIAL DISTRICT PAM ESTES
Clerk
TYLER, TEXAS
EDDIE JACKSON,
APPELLANT
VS.
THE STATE OF TEXAS,
APPELLEE
ON APPEAL IN CAUSE NUMBER 007-0111-14
FROM THE 7th JUDICIAL DISTRICT COURT
OF SMITH COUNTY, TEXAS
HONORABLE KERRY RUSSELL, JUDGE PRESIDING
APPELLANT’S BRIEF
JAMES W. HUGGLER, JR.
100 E. FERGUSON, SUITE 805
TYLER, TEXAS 75702
903-593-2400
STATE BAR NUMBER 00795437
ATTORNEY FOR APPELLANT
IDENTITY OF PARTIES AND COUNSEL
APPELLANT:
Eddie Jackson
APPELLANT’S TRIAL COUNSEL
Kurt Noell (At trial)
231 S. College
Tyler, Texas 75702
903-597-9069
O.W. Loyd (At adjudication)
1507 Frost Street
Gilmer, Texas 75644
903-843-3469
John Jarvis (At revocation)
326 S. Fannin
Tyler, Texas 75702
903-592-6176
APPELLANT’S APPELLATE COUNSEL
James Huggler
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
903-593-3830 (fax)
APPELLEE
The State of Texas
APPELLEE’S TRIAL COUNSEL
Bryan Jiral
Brent Ratekin
Jeff Wood
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
ii
Tyler, Texas 75702
903-590-1720
903-590-1719 (fax)
APPELLEE’S APPELLATE COUNSEL
Michael West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
903-590-1720
903-590-1719 (fax)
iii
TABLE OF CONTENTS
PAGE
IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ISSUE ONE: The trial court erred in imposing attorney fees
following a finding that Mr. Jackson was indigent and was
appointed counsel.
ISSUE TWO, There is legally insufficient evidence to support the
restitution ordered.
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ISSUE ONE, RESTATED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
A. Law on Attorney Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
B. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
C. Application to These Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
D. Remedy and Relief Requested.. . . . . . . . . . . . . . . . . . . . . . . . . 11
ISSUE TWO, RESTATED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
B. Law Applicable to Restitution Orders. . . . . . . . . . . . . . . . . . . 12
iv
C. Application to These Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
D. Remedy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
CERTIFICATE OF SERVICE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
v
TABLE OF AUTHORITIES
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West 2013).. . . . . . . . . . . . . 5
TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West 2013). . . . . . . . . . . . . . 5
TEX. CODE CRIM. PROC. ANN. art. 42.037(k) (West 2014).. . . . . . . . . . . 12
TEX. CODE CRIM. PROC. ANN. art. 103.001 (West 2014). . . . . . . . . . . . . . 6
TEX. GOV’T CODE ANN. §§ 102.001-.142 (West 2013). . . . . . . . . . . . . . . . 6
TEX. GOV’T CODE ANN. § 102.021 (West 2013). . . . . . . . . . . . . . . . . . . . . 6
TEX. GOV’T CODE ANN. § 103.006 (West 2015). . . . . . . . . . . . . . . . . . . . . 7
TEX. PENAL CODE ANN. §32.21 (West 2013). . . . . . . . . . . . . . . . . . . . . 2, 3
CASES
Armstrong v. State, 340 S.W.3d 759 (Tex. Crim. App. 2011). . . . . . . 6, 7
Buehler v. State, 709 S.W.2d 49, 52 (Tex. App. – Houston [1st Dist.]
1986, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15
Cabla v. State, 6 S.W.3d 543, 546 (Tex. Crim. App. 1999). . . . . . . . . . 12
Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App. 1999). 11, 13, 14
Cantrell v. State, 75 S.W.3d 503, 512 (Tex. App. – Texarkana
2002, pet. ref’d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Carter v. State, No. 12-09-00105-CR, 2011 Tex. App. LEXIS 662
(Tex. App. – Tyler 2011, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Cartwright v. State, 605 S.W.2d 287 (Tex. Crim. App.
[Panel Op] 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 14
Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006). . . . . . 13
Drilling v. State, 134 S.W.3d 468 (Tex. App. – Waco 2004, no pet.).11, 13
Evans v. State, No. 12-10-00139-CR (Tex. App. – Tyler, Feb. 28, 2011).11
Homan v. Hughes, 708 S.W.2d 449, 454 (Tex. Crim. App. 1986). . . . . 15
vi
Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005).. . . . . . . . 8
Idowu v. State, 73 S.W.3d 918, 922 (Tex. Crim. App. 2002). . . . . . . . . 11
Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). . . . . 7, 8
Johnson v. State, 405 S.W.3d 350, 354 (Tex. App. – Tyler
2013, no pet). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8
Mart. v. State, 874 S.W.2d 674, 679-80 (Tex. Crim. App. 1994). . . . . 13
Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010). . . . . . . 5, 8
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991). . . . 8
Owen v. State, 352 S.W.3d 542, 5148 (Tex. App. – Amarillo
2011, no pet). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7
Riggs v. State, No. 05-05-001689-CR, 2007 Tex. App. LEXIS 2589
(Tex. App. – Dallas 2007, no pt.). . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Tyl. v. State, 137 S.W.3d 261, 267-68 (Tex. App. – Houston
[1st Dist.] 2004, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009). . . . . . . . . . 6
Will. v. State, 332 S.W.3d 694, 699 (Tex. App. – Amarillo
2011, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
RULES
TEX. R. APP. PROC. 9.4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
TEX. R. APP. PROC. 38. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Tex. R. App. Proc. 43.2(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
vii
NO. 12-16-00102-CR
EDDIE JACKSON § IN THE COURT OF APPEALS
APPELLANT §
§
VS. § 12TH JUDICIAL DISTRICT
§
THE STATE OF TEXAS, §
APPELLEE § TYLER, TEXAS
APPELLANT’S BRIEF
TO THE HONORABLE COURT OF APPEALS AND THE JUSTICES
THEREOF:
Comes now Eddie Jackson, (“Appellant”), by and through his
attorney of record, James Huggler, and pursuant to the provisions of TEX.
R. APP. PROC. 38, et seq., respectfully submits this brief on appeal.
1
STATEMENT OF THE CASE
Appellant was indicted in Cause Number 007-0111-14 and charged
with the state jail felony offense of forgery. I CR 1-21; see TEX. PENAL
CODE ANN. §32.21 (West 2013). Mr. Jackson entered a plea of guilty
pursuant to an agreement and received deferred adjudication probation.
I CR 35-36; II RR 32, 39; III RR 11-12.2
The State filed a motion to proceed to final adjudication, Mr. Jackson
entered not true pleas. I CR 47-50, 57; V RR 6-7. Following evidence and
argument of counsel, the court found each allegation to be true, and placed
Mr. Jackson on regular probation. I CR 60-61; V RR 73.
The State filed a motion to revoke, Mr. Jackson entered a plea to
several paragraphs and not true to two paragraphs. I CR 70-75, 86; VI RR
12-13. Following evidence and argument, the trial court found each
paragraph to be true, revoked the probation and sentenced Mr. Jackson
1
References to the Clerk’s Record are designated “CR” with a roman numeral preceding
“CR” specifying the correct volume and an arabic numeral following “CR” specifying the correct
page in the record.
2
References to the Reporter’s Record are designated “RR” with a roman numeral
preceding “RR” indicating the correct volume, and an arabic numeral following “RR” specifying
the correct page.
2
to eighteen months confinement, court costs and outstanding restitution.
I CR 97-98; VI RR 47, 48-49. Notice of appeal was timely filed on April 4,
2016. I CR 81. This Brief is timely filed on or before July 7, 2016.
ISSUE PRESENTED
ISSUE ONE: THE TRIAL COURT ERRED IN IMPOSING ATTORNEY
FEES FOLLOWING A FINDING THAT MR. JACKSON WAS
INDIGENT AND WAS APPOINTED COUNSEL.
ISSUE TWO: THERE IS LEGALLY INSUFFICIENT EVIDENCE TO
SUPPORT THE RESTITUTION ORDERED.
STATEMENT OF THE FACTS
Appellant was indicted in Cause Number 007-0111-14 and charged
with the state jail felony offense of forgery. I CR 1-2; see TEX. PENAL
CODE ANN. §32.21(b) and (d) (West 2013). Mr. Jackson entered a plea of
guilty pursuant to an agreement and received three years deferred
adjudication probation. I CR 22-28; II RR 32, 39; III RR 11. The State
filed an application to proceed to final adjudication. I CR 47-50.
Following evidence, the court found each allegation to be true, found him
3
guilty of the offense and placed Mr. Jackson on regular probation. I CR
60-61; V RR 73-74. The State then filed a motion to revoke probation. I
CR 70-75. Mr. Jackson entered true pleas to most of the allegations. I CR
86; VI RR 13. Following evidence, the court found each allegation to be
true and sentenced Mr. Jackson to eighteen months confinement, the
balance of restitution and court costs. I CR 97-98; VI RR 47-48. Further
discussion of relevant facts is included below.
SUMMARY OF ARGUMENT
The first error for this Court to consider involves the improper
assessment of court costs. The trial court improperly ordered
reimbursement of attorney fees after Mr. Jackson was found to be
indigent and was appointed counsel. The attorney fees were included in
the judgment placing him on deferred adjudication and regular probation.
The remaining issues relate to the improper assessment of restitution
which was not supported by the evidence.
4
ARGUMENT
ISSUE ONE, RESTATED: THE TRIAL COURT ERRED IN IMPOSING
ATTORNEY FEES FOLLOWING A FINDING THAT MR. JACKSON
WAS INDIGENT AND WAS APPOINTED COUNSEL.
A. Law on Attorney’s Fees
A trial court has the authority to assess attorney’s fees against a
criminal defendant who received court-appointed counsel. TEX. CODE
CRIM. PROC. ANN. art. 26.05(g)(West 2013). Once a defendant has been
determined to be indigent, he is presumed to remain indigent for the
remainder of the proceedings unless a material change in his financial
circumstances occurs. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West
2013). Before attorney’s fees may be imposed, the trial court must make
a determination supported by some factual basis in the record that the
defendant has financial resources to enable him to offset in whole or in
part the costs of the legal services provided. Johnson v. State, 405 S.W.3d
350, 354 (Tex. App. – Tyler 2013, no pet). If the record does not show any
material change in the defendant’s financial circumstances, the evidence
will be insufficient to support the imposition of attorney’s fees. TEX. CODE
CRIM. PROC. ANN. art. 26.04(p); Mayer v. State, 309 S.W.3d 552, 553, 557
5
(Tex. Crim. App. 2010).
Court costs are pre-determined, legislatively-mandated obligations
resulting from a conviction. See, e.g., TEX. GOV'T CODE ANN. §§
102.001-.142 (West 2014) (setting forth various court costs that a
convicted person "shall" pay). A sentencing court shall impose the
statutory court costs at the time a defendant is sentenced. Armstrong v.
State, 340 S.W.3d 759 (Tex. Crim. App. 2011); TEX. GOV’T CODE ANN.
§102.021 (West 2014). Court costs are not punitive in nature and do not
have to be included in an oral pronouncement of a sentence. Weir v.
State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009).
A cost is not payable by the person charged with the cost until a
written bill is produced or is ready to be produced, containing the items
of cost, signed by the officer who charged the cost or the officer who is
entitled to receive payment of the cost. TEX. CODE CRIM. PROC. ANN. art.
103.001 (West 2013). The clerk of the trial court is required to keep a fee
record, and a statement of an item therein is prima facie evidence of the
correctness of the statement. Owen v. State, 352 S.W.3d 542, 548 (Tex.
App.—Amarillo 2011, no pet.) (citing TEX.CODE CRIM. PROC. ANN. art.
103.009(a), (c)). Until a certified bill of costs has been made part of the
6
record, a defendant has no obligation to pay court costs. Owen, 352
S.W.3d at 547 (citing Armstrong, 340 S.W.3d at 765; Williams v. State,
332 S.W.3d 694, 699 (Tex. App. – Amarillo 2011, pet. denied). In this case,
no bill of costs has been included in the record prepared by the Smith
County District Clerk leading to the conclusion that a bill of costs has not
been prepared. I CR 89-90, line 21.
If a criminal action is appealed, "an officer of the court shall certify
and sign a bill of costs stating the costs that have accrued and send the
bill of costs to the court to which the action or proceeding is transferred or
appealed." TEX. CODE CRIM. PROC. ANN. art. 103.006 (West 2015).
B. Standard of Review
The imposition of court costs upon a criminal defendant is a
“nonpunitive recoupment of the costs of judicial resources expended in
connection with the trial of the case.” Johnson v. State, 423 S.W.3d 385,
390 (Tex. Crim. App. 2014). When the imposition of court costs is
challenged on appeal, the court reviews the assessment of costs to
determine if there is a basis for the cost, not to determine if there is
7
sufficient evidence offered at trial to prove each cost. Johnson, 423 S.W.3d
at 390.
The standard for reviewing a legal sufficiency challenge is whether
any rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. at
315-16, 99 S. Ct. at 2786-787; see also Mayer v. State, 309 S.W.3d 552,
557 (Tex. Crim. App. 2010)(sufficiency review of evidence to support order
of repayment of attorney fees as costs).
A challenge to a withdrawal of funds notification is reviewed for an
abuse of discretion. Williams, 332 S.W.3d at 698. A trial court abuses
its discretion when it acts “without reference to any guiding rules and
principles. Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005);
Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1991). The
reviewing court may modify a withdrawal order on direct appeal if the
evidence is insufficient to support the assessment of court costs. Johnson
v. State, 405 S.W.3d at 355.
8
C. Application to These Facts
Mr. Jackson has been represented at all times by appointed counsel.
The record contains two different orders appointing trial counsel. I CR 46,
77. Appellate counsel was appointed for this appeal. I CR 84. A motion
was filed with the trial court seeking a free reporter’s record on appeal.
I CR 94-96. This motion was granted by the trial court without opposition
from the State of Texas. I CR 103.
The May 1, 2014 judgment and order placing Mr. Jackson on
deferred adjudication included an assessment of $604.00 in court costs.
I CR 35-36. The judgment from December 19, 2014 placing Mr. Jackson
on probation contains an assessment of $519.00 in court costs. I CR 60-61.
The final judgment signed April 15, 2016 reflects a balance of $179.00 for
court costs. I CR 97-98.
Because there is no bill of costs contained in this record, Appellant’s
first position is that there is no evidence to support the imposition of any
court costs and the judgment should be modified and deleted. As this
Court is aware from dozens of other cases, some district courts have
routinely assessed a $300 fee for costs of an attorney appointed after a
9
finding that a defendant is indigent.
There is no evidence to contest the finding that Mr. Jackson was
found indigent. Assessment of attorney’s fees following a finding of
indigence is improper. While the final judgment probably does not include
the attorney’s fee, the prior orders do (I CR 30-32, line 21; I CR 54-56, line
21), and there were allegations that Mr. Jackson failed to make required
financial payments for court costs and attorney fees (I CR 47-50, ¶5; I CR
70-75, ¶6). Payments were made during the deferred adjudication
supervision and applied to court costs in the amount of $85.00. From the
record as submitted, an additional $340 in payments were made leaving
an outstanding balance of $179 from an initial balance of $604.00.
For the sake of argument, because there is no bill of costs submitted
as part of the record, a total of $425.00 was paid by Mr. Jackson for court
costs during his periods of supervision. That would exceed court costs
allowed by statute and include moneys paid for attorney fees following the
findings of indigence.
10
D. Remedy and Relief Requested
The fee seeking reimbursement for the appointed attorney was
improperly assessed by the court. The judgment should be modified to
eliminate this portion of the court costs.
ISSUE TWO, RESTATED: THERE IS LEGALLY INSUFFICIENT
EVIDENCE TO SUPPORT THE RESTITUTION ORDERED.
A. Standard of Review
An appellate court reviews challenges to restitution orders under an
abuse of discretion standard. Cartwright v. State, 605 S.W.2d 287, 289
(Tex. Crim. App. [Panel Op.] 1980); Drilling v. State, 134 S.W.3d 468, 469
(Tex. App. – Waco 2004, no pet.). An abuse of discretion by the trial court
in setting the amount of restitution will implicate due process
considerations. Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App.
1999).
A failure to object to the restitution order does not waive an
evidentiary sufficiency complaint on appeal. Idowu v. State, 73 S.W.3d
918, 922 (Tex. Crim. App. 2002); see also Riggs v. State, No, 05-05-01689-
11
CR, 2007 Tex. App. LEXIS 2589, at *14 (Tex. App. – Dallas April 3, 2007,
no pet.) (mem. op., not designated for publication); and Evans v. State, No,
12-10-00139-CR, (Tex. App. – Tyler, Feb. 28, 2011) (per curium order, not
designated for publication) (remanding an unobjected to order of
restitution to the trial court for an appropriate restitution hearing) and
Carter v. State, No. 12-09-00105-CR, 2011 Tex. App. LEXIS 662 (Tex.
App. – Tyler Jan. 31, 2011, no pet.) (mem. op., not designated for
publication) (Court of Appeals twice ordered remand for restitution
hearing on unobjected to restitution amount at trial court level).
B. Law Applicable to Restitution Orders
The focus of the restitution order is limited to individuals alleged
and proven to be the victims of the charged offense. Cabla v. State, 6
S.W.3d 543, 546 (Tex. Crim. App. 1999). The burden of demonstrating the
amount of loss sustained is on the prosecuting attorney. TEX. CODE CRIM.
PROC. ANN. art. 42.037(k) (Vernon 2013). Restitution has been deemed to
be an aspect of punishment. Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex.
Crim. App. 2006).
12
Due process places three separate limits on the restitution a trial
court may order: (1) the amount must be just and supported by a factual
basis in the record; (2) the restitution ordered must be only for the offense
for which the defendant is criminally responsible; and (3) the restitution
must be for the victim or victims of the offense for which the offender is
charged. Campbell 5 S.W.3d at 696-97; Drilling, 134 S.W.3d at 470;
Cantrell v. State, 75 S.W.3d 503, 512 (Tex. App. – Texarkana 2002, pet.
ref’d).
Additionally, there must be evidence in the record to support an
amount of restitution. Buehler v. State, 709 S.W.2d 49, 52 (Tex. App. –
Houston [1st Dist.] 1986, pet. ref’d). In fact, the amount of restitution
must be just, and it must have a factual basis within the loss of the victim.
Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980). A court
cannot order restitution to any but the victim or victims of the offense or
reimbursement for expenses incurred by the crime victim’s compensation
fund with which the offender is charged. Martin v. State, 874 S.W.2d 674,
679-80 (Tex. Crim. App. 1994).
13
C. Application to these Facts
In this case, the only evidence to support the amount of restitution
ordered is contained in the pre-sentence investigation report. The
probation officer submitted a request for 1,565.32 to be paid to Southside
State Bank. II CR 17. However, the trial court order placing Mr. Jackson
under supervision, does not reflect who should receive the restitution
ordered, instead ordering payment to Smith County Collections. I CR 35-
36. This was also the case in the judgment placing Mr. Jackson on regular
probation, but was corrected in the final judgment in the case. I CR 60-61,
97-98. However, the restitution ordered violates due process and is an
abuse of discretion. Cartwright 605 S.W.2d at 289.
While there was evidence in the record satisfying the first prong of
the Campbell test, that the amount must be just and supported by a
factual basis in the record; and arguably there may be sufficient evidence
to support the fact that the amount was related to the offense for which
the defendant is criminally responsible; there is insufficient evidence to
determine that the restitution was payable to the victim of the offense for
which the offender is charged. Campbell 5 S.W.3d at 696-97.
14
In this case, it appears from the record that a total of three checks
were involved, number 108 for $400, number 113 for $400, and number
115 for $600. II CR 12-13. However, at best this is almost a guess
because the affidavit provided by Southside State Bank just requests
restitution in the amount of $1,565.32 and does not provide any specific
detail as to how that amount was computed. II CR 19-23. The
presentence report does contain what appears to be a bank statement and
an entry labeled “closing entry” is starred. II CR 20-23. However, there
is nothing in the record to indicate whether that amount was made by a
probation officer, the court, or Southside Bank. This entry also was dated
January 6, when the indictment alleged conduct from September 16, 2013.
I CR 1-2; II CR 19-23.
D. Remedy
Reversal would require the trial court to do a useless act,
specifically, reform a judgment on an issue this court has decided. The
law does not require courts to perform useless tasks. Homan v. Hughes,
708 S.W.2d 449, 454 (Tex. Crim. App. 1986). A trial court judgment can
be affirmed and modified. TEX. R. APP. P. 43.2(b); Buehler, 709 S.W.2d at
53. Modification is the correct remedy where the trial court imposed an
15
unauthorized sentence. Tyler v. State, 137 S.W.3d 261, 267-68 (Tex. App.
– Houston [1st Dist.] 2004, no pet.). Here, because there is no evidence to
support any payment of restitution, the amount of restitution ordered was
an abuse of discretion and the judgment should be modified to eliminate
this figure.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Counsel respectfully
prays that this Court modify the judgment of the trial court.
Respectfully submitted,
/s/ James Huggler
James W. Huggler, Jr.
State Bar Number 00795437
100 E. Ferguson, Suite 805
Tyler, Texas 75702
903-593-2400
903-593-3830 fax
ATTORNEY FOR APPELLANT
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CERTIFICATE OF SERVICE
A true and correct copy of the foregoing Brief of the Appellant has been
forwarded to counsel for the State by electronic filing on this the 6th day
of July, 2016.
/s/ James Huggler
James W. Huggler, Jr.
Attorney for the State:
Mr. Michael West
Smith County Criminal District Attorney’s Office
100 N. Broadway, 4th Floor
Tyler, Texas 75702
CERTIFICATE OF COMPLIANCE
I certify that this Brief complies with Tex. R. App. P. 9.4, specifically
using 14 point Century font and contains 3,670 words as counted by
Corel WordPerfect version x5.
/s/ James Huggler
James Huggler
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