Kemone Duane Rodgers v. State ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00383-CR
___________________________
KEMONE DUANE RODGERS, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court No. 1488359D
Before Sudderth, C.J.; Gabriel and Womack, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
In two issues, Appellant Kemone Rodgers appeals the trial court’s revocation
of deferred-adjudication community supervision, determination of his guilt of
possession of a controlled substance, and imposition of a 132-day jail sentence. We
affirm the judgment as modified to delete the $191.68 fine that was assessed in the
written judgment but not orally pronounced by the trial court.
Background
Appellant pleaded guilty to drug possession in May 2017 and was placed on
two years’ deferred-adjudication community supervision. The community-supervision
terms required Appellant to report to the Community Supervision and Corrections
Department (CSCD) “no less than monthly . . . , or as scheduled by the court or
supervision officer,” and to complete 120 hours of community service “at the rate of
no fewer than 8 hours per month as directed by the court or supervision officer.”
In May 2018, the State moved to adjudicate Appellant’s guilt on the basis that
he had not completed community-service hours as required and refused to report
weekly and/or bi-weekly as instructed by his supervision officer, Adelia Gonzalez.
Gonzalez testified at the hearing that Appellant had only completed four hours of
community service between January and April 2018, twenty-eight fewer hours than
required. According to Gonzalez, Appellant told her that he did not have time to do
community service—even though he held a job only for one week during the relevant
time period—and that he did not agree to perform community service.
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When Gonzalez informed Appellant that she planned to increase his reporting
requirement to be weekly, Appellant responded, “I can’t do that.” When she
suggested biweekly reporting, Appellant claimed he could not make it biweekly either.
According to Gonzalez, Appellant “flat-out refused” to report weekly or biweekly as
instructed by her.
Gonzalez testified that Appellant never provided her with evidence that he was
unable to work due to a disability. Likewise, when he testified at the hearing,
Appellant refused to give the trial court any information about the medical condition
that he claimed prevented him from complying with the terms of community
supervision.
At the conclusion of the hearing, the trial court found Appellant’s guilty plea
had been entered freely and voluntarily, that he had been properly admonished, and
that he was aware of the terms and conditions of community supervision. The trial
court further found that the terms and conditions of community supervision were
administered by Gonzalez “under the authority of the Court and at its direction” and
that “there [was] no credible evidence” that Appellant was unable to perform any of
the terms and conditions of community service. The trial court found Appellant
guilty and sentenced him to time served (132 days) in the Tarrant County Jail.
Discussion
Appellant brings two issues on appeal. In his first issue, Appellant complains
that the trial court improperly delegated authority to Gonzalez as the supervision
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officer and that Gonzalez did not have the authority to modify Appellant’s reporting
schedule. In his second issue, Appellant argues that the trial court’s order that he
complete 120 hours of community service was too vague and indefinite to be
enforceable.
I. Delegation of authority to supervision officer
As a preliminary matter, we note that Appellant relies upon outdated caselaw to
support his challenge to the trial court’s authority to delegate his reporting schedule to
Gonzalez. See Pierce v. State, 67 S.W.3d 374, 376–77 (Tex. App.—Waco 2001, no pet.)
(discussing the evolution of statutes and caselaw regarding probation officers’ ability
to alter terms of probation). But even two decades ago, we observed that it is
unrealistic to expect the trial court to directly implement every detail of specified
community-supervision conditions. McArthur v. State, 1 S.W.3d 323, 334 (Tex. App.—
Fort Worth 1999, pet. ref’d). In McArthur, we held that once the trial court
prescribes—with sufficient clarity—the requirements with which a defendant must
comply, it may use other entities to implement the details pertaining to those
requisites. Id.; see also Salmons v. State, 571 S.W.2d 29, 29–30 (Tex. Crim. App. 1978)
(upholding probation condition requiring a probationer to attend clinic and
counseling programs as prescribed by the probation office). As we explained,
allowing a supervision officer to prescribe details regarding implementation of the
conditions set by the court is not the same as allowing the officer to impermissibly
designate an additional condition. McArthur, 1 S.W.3d at 334. Furthermore, the code
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of criminal procedure expressly allows a trial court to require a defendant to, as a
condition of community supervision, report to a supervision officer “as directed by
the judge or supervision officer.” Tex. Code Crim. Proc. Ann. art. 42A.301(b)(4)
(emphasis added).
The trial court ordered that Appellant report to the CSCD no less than
monthly or as scheduled by his supervision officer. In doing so, the trial court did not
improperly allow the supervision officer to modify an imposed term of community
supervision. Rather, the trial court utilized the CSCD to implement its requirement
that Appellant report to the CSCD regularly during the community-supervision term.
Id.; see also Ward v. State, No. 05-04-00493-CR, 2005 WL 1091374, at *3-4 (Tex.
App.—Dallas May 10, 2005, no pet.) (not designated for publication) (interpreting a
predecessor of article 42A.301 and holding that the trial court did not err by allowing
supervision officer to set or change the time of reporting). We therefore overrule
Appellant’s first issue.
II. 120-hour community service requirement
Appellant signed the trial court’s order that Appellant complete “120 hours of
community service restitution at the rate of no fewer than 8 hours per month as
directed by the court or supervision officer.” He now argues on appeal that the
community service requirement was too vague and indefinite to be enforced. In
support, Appellant relies upon various letters he mailed to the trial court (while
represented by appointed counsel) in which he offered to pay money in lieu of
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performing community service. We do not find these letters persuasive to support
Appellant’s argument.
Community supervision establishes a contractual relationship between the trial
court and the defendant. McArthur, 1 S.W.3d at 335. Because a violation of that
contract can potentially result in the loss of the defendant’s freedom, the community-
supervision conditions must be clear, explicit, and unambiguous so that the defendant
knows what is expected. Id. Generally speaking, we measure vagueness from the
standpoint of an objective reasonable person. See, e.g., Comm’n for Lawyer Discipline v.
Benton, 980 S.W.2d 425, 440 (Tex. 1998) (applying objective ordinary person test in
determining vagueness of statute); May v. State, 765 S.W.2d 438, 439 (Tex. Crim. App.
1989) (considering appellant’s argument that statute was unconstitutionally vague
because it did not establish objective standards to determine violations thereof).
Thus, we do not consider Appellant’s subjective misunderstanding of a community-
service requirement when determining whether the requirement was too vague or
indefinite to be enforced.
The trial court was statutorily permitted to impose a specified amount of time
of community service as a condition of community supervision. See Act of May 23,
2015, 84th Leg., R.S., ch. 106, § 2, 2015 Tex. Gen. Laws 1103, 1104–05 (permitting
trial court to impose community service “for a time specified by the judge”), repealed by
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Act of June 1, 2017, 85th Leg., ch. 324, § 23.013(d), 2015 Tex. Gen. Laws 841, 954.1
And, after taking judicial notice of Appellant’s signatures on his plea paperwork,
including on those pages listing his community-supervision conditions and the
community-service requirement, the trial court clearly ordered Appellant to perform
120 hours of community service at a rate of no less than eight hours a month. We do
not find the trial court’s requirement that Appellant complete 120 hours of
community service at a rate of no less than eight hours a month to be so vague or
indefinite as to render it unenforceable. We therefore overrule Appellant’s second
issue.
III. Improper assessment of fine
In our review of the record, we noted that the judgment adjudicating guilt
reflects a $191.68 fine that was not pronounced by the trial court when it sentenced
Appellant. This is a clerical error. See Tex. Code Crim. Proc. Ann. art. 42.03, § 1(a);
Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004) (holding that, in the
context of deferred adjudication, the order adjudicating guilt sets aside the order
deferring adjudication, including any previously imposed fine).
The current version of the law is located at article 42A.301(a)(10) of the code
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of criminal procedure. Tex. Code Crim. Proc. Ann. art. 42A.301(a)(10) (allowing trial
court to require defendant to participate in community service “for a period specified
by the judge”).
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Although Appellant has not raised this issue on appeal, we have the power to
correct and reform judgments “to make the record speak the truth” and whenever the
trial court could have corrected the error through a judgment nunc pro tunc. Asberry
v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d) (“The authority
of an appellate court to reform incorrect judgments is not dependent upon the
request of any party, nor does it turn on the question of whether a party has or has
not objected in the trial court.”).
Thus, we reform the judgment to delete the $191.68 fine because the trial court
did not orally pronounce the fine as part of Appellant’s sentence upon adjudication.
See Taylor, 131 S.W.3d at 502.
Conclusion
Having overruled Appellant’s two issues but recognizing the discrepancy
between the oral pronouncement and the written judgment, we affirm the trial court’s
judgment as modified to delete the $191.68 fine.2
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: August 26, 2019
While this appeal was pending and after the briefs were filed, Appellant filed a
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motion to remove his attorney from this appeal and file a pro se brief. We deny his
motion.
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