Cedric Dewayne Blanton v. State ( 2010 )

NO. 12-09-00448-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CEDRIC DEWAYNE BLANTON, § APPEAL FROM THE 241ST
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Cedric Dewayne Blanton appeals his conviction for possession of a controlled substance.
In two issues, Appellant contends that the trial court lacked authority to order him to pay one
hundred forty dollars in restitution to the Texas Department of Public Safety and that the
judgment lists the wrong person as his trial counsel. We modify the judgment, and as modified,
affirm.
BACKGROUND
Appellant was charged by indictment with possession of a controlled substance. Pursuant
to a plea agreement, Appellant pleaded guilty as charged in 2007. The trial court deferred
adjudication of his guilt and placed him on community supervision. Appellant signed the
conditions of his community supervision, which included payment of one hundred forty dollars
in restitution. In 2009, the State filed an application to adjudicate Appellant’s guilt alleging that
he both used and possessed marijuana and cocaine. Appellant pleaded true to the allegations.
The trial court found Appellant guilty, revoked his suspended sentence, and assessed punishment
at sixteen months of confinement in the state jail. The judgment also included an order of
restitution of one hundred forty dollars to the Texas Department of Public Safety. This appeal
followed.
RESTITUTION
In his first issue, Appellant contends that the trial court lacked authority to order
restitution payable to the Texas Department of Public Safety.
Applicable Law
In addition to any fine authorized by law, a sentencing court may order the defendant to
make restitution to any victim of the offense. See TEX. CODE CRIM. PROC. ANN. art. 42.037(a)
(Vernon Supp. 2010). If the offense results in personal injury to the victim, the court may order
the defendant to make restitution to the victim for any expenses incurred by the victim as a result
of the offense or to the compensation fund for payments made to or on behalf of the victim. See
id. art. 42.037(b)(2). The standard of proof for determining restitution is a preponderance of the
evidence. See id. art. 42.037(k). The burden of proving the amount of loss sustained by the
victim is on the state. Id. Due process considerations limit the restitution a trial court can order
in three ways: (1) the amount must be just and supported by a factual basis within the record; (2)
the restitution ordered must be 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 defendant is
charged. See Drilling v. State, 134 S.W.3d 468, 469 (Tex. Crim. App. 2004); Campbell, 5
S.W.3d at 696–97; Martin v. State, 874 S.W.2d 674, 677-78 (Tex. Crim. App. 1994).
Analysis
Appellant argues that the Department of Public Safety is not a victim in this case and may
not be the recipient of restitution. Therefore, he asserts that there is not a statutory basis for the
trial court’s restitution order in this case.1 Appellant does not argue that the evidence does not
support the amount of the order.
As the State points out, this court has held that the complaint that the trial court lacks the
1
A trial court may order reimbursement to law enforcement agencies for analysis of controlled substances
when a defendant is placed on community supervision. TEX. CODE CRIM. PROC. ANN. art. 42.12 § 11(a)(19) (Vernon
Supp. 2010). And there is a provision for the imposition of restitution or reparations upon the revocation of
community supervision, but at least one court has held that reimbursement for the analysis of controlled substances
is not restitution or reparations. See id. § 23(a); Aguilar v. State, 279 S.W.3d 350, 353–54 n.1 (Tex. App.–Austin
2007, no pet.); but see Horton v. State, No. 10-09-00258-CR, 2010 Tex. App. LEXIS 3828, *8-10 (Tex. App.–
Waco May 19, 2010, pet. ref’d) (mem. op., not designated for publication) (payment to Department of Public Safety
is reparations).
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legal authority to assess restitution to the Department of Public Safety is one that must be
preserved by contemporaneous objection. See Kassube v. State, Nos. 12-08-00364-CR, 12-08-
00365-CR, 2010 Tex. App. LEXIS 1442, at *10-11 (Tex. App.–Tyler Feb. 26, 2010, no pet.)
(mem. op., not designated for publication) (citing TEX. R. APP. P. 33.1; Idowu v. State, 73
S.W.3d 918, 921 (Tex. Crim. App. 2002) (“If a defendant wishes to complain about the
appropriateness of (as opposed to the factual basis for) a trial court’s restitution order, he must do
so in the trial court, and he must do so explicitly.”); Lemos v. State, 27 S.W.3d 42, 46-47 (Tex.
App.–San Antonio 2000, pet. ref’d)). Appellant did not object to the ordered restitution when
sentence was pronounced and did not raise this issue in a motion for new trial.
Because Appellant did not object in the trial court, he failed to preserve a complaint about
the trial court’s ability to make the restitution order in this case. Accordingly, we overrule
Appellant’s first issue.
JUDGMENT
In his second issue, Appellant argues that the judgment lists the wrong person as his trial
counsel. The judgment in a criminal case must list the name of the defendant’s counsel. See
TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1(2) (Vernon Supp. 2010). The statute does not
specifically state whether trial counsel or appellate counsel, when they are different, should be
listed. In context, however, it appears that it is trial counsel who should be listed because the
other required entries relate to the trial or the final hearing in the case. Id.
The judgment in this case was signed on December 10, 2009. Appellate counsel was
appointed on December 11, the same day Appellant filed his notice of appeal. The judgment
lists appellate counsel as Appellant’s counsel and does not list the attorney who represented him
at the hearing on the State’s motion to adjudicate guilt.
Appellant requests that we amend the judgment to delete the name of his appellate
counsel and replace it with the name of his trial counsel. The State notes that the case law
supports Appellant’s request and joins it. See Watson v. State, Nos. 05-08-00541-CR, 05-08-
00542-CR, 2010 Tex. App. LEXIS 4650, *3-4 (Tex. App.–Dallas June 18, 2010, no pet.) (mem.
op., not designated for publication). As the court stated in Watson, we have the authority to
modify or reform an incorrect judgment when we have the necessary information before us to do
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so. Id; see also TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App.
1993); Blas v. State, Nos. 12-06-00305-CR, 12-06-00306-CR, 2007 Tex. App. LEXIS 2565, at
*5 (Tex. App.–Tyler Mar. 30, 2007, no pet.) (mem. op., not designated for publication).
We have the necessary information before us. The State stipulates that Donald S.
Davidson represented Appellant prior to his conviction. Davidson filed a motion to withdraw as
counsel following the final hearing in this case. According to the reporter’s record, Davidson
represented Appellant at that hearing, which immediately preceded the entry of the signed
judgment. Therefore, we sustain Appellant’s second issue.
DISPOSITION
We modify the judgment to reflect that Appellant was represented by Donald S.
Davidson. Having overruled Appellant’s first issue, we affirm the judgment of the trial court as
modified.
BRIAN HOYLE
Justice
Opinion delivered October 29, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
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