Jeremy Demond Douglas v. State ( 2012 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-11-00625-CR
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JEREMY DEMOND DOUGLAS, Appellant
V.
THE STATE OF TEXAS, Appellee
____________________________________________________________________ __
On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause No. 10-10458
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MEMORANDUM OPINION
Jeremy Demond Douglas appeals the trial court’s decision to revoke its order
placing him on community supervision. Douglas argues that evidence is insufficient to
show that he burglarized a habitation, violating the conditions of the community
supervision order at issue. Based on his indigence, Douglas also argues the trial court
should not have ordered that he pay fees that he argues were associated with his defense,
nor should the trial court have ordered that he pay various costs. We conclude the
evidence is sufficient to support the trial court’s finding that Douglas violated the
conditions of his community supervision by committing burglary. We also conclude that
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the trial court did not err by ordering that Douglas pay the restitution award,
administrative fees,1 and court costs that are at issue.
In carrying out a plea bargain agreement, Douglas pled guilty to committing an
aggravated robbery. See Tex. Penal Code Ann. § 29.03 (West 2011). The trial court
found the evidence sufficient to find Douglas guilty of an aggravated robbery, which had
occurred in October 2010, deferred further proceedings, placed Douglas on community
supervision for ten years, and ordered that he pay $15,515.07 in restitution. Before
Douglas completed serving the term required by the community supervision order, the
State filed a motion to revoke, requesting that the trial court revoke the community
supervision order. The motion to revoke alleges that Douglas had violated the order in
August 2011 by burglarizing a habitation and that Douglas had failed to pay court
assessed fees.
At the revocation hearing, Douglas pled “[n]ot true” to the State’s allegation that
he had burglarized a habitation, and “[t]rue” to the allegation that he had failed to pay
court assessed fees. After hearing testimony from two witnesses and from Douglas, as
well as admitting other evidence regarding the August 2011 burglary, the trial court
found that Douglas had violated a condition of his community supervision by
burglarizing a habitation. At the conclusion of the hearing, the trial court revoked its
community supervision order, found Douglas guilty of having committed the October
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The administrative fees include supervision fees, a crime stopper fee and a PSI
fee.
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2010 aggravated robbery, assessed a sentence of eighty-five years in prison, ordered that
Douglas pay $15,515.07 in restitution, and ordered that he pay administrative fees of
$822 and court costs of $631.
In issue one, Douglas argues the evidence is insufficient to support the trial
court’s finding that he violated his community supervision order by committing a
burglary in August 2011. We review a trial court’s order revoking community
supervision under an abuse of discretion standard. See Rickels v. State, 202 S.W.3d 759,
763 (Tex. Crim. App. 2006).
In a community supervision revocation proceeding, the State must prove by a
preponderance of the evidence that the defendant has violated a condition of his
community supervision. See Rickels, 202 S.W.3d at 763-64. “When the State has failed to
meet its burden of proof, the trial judge abuses his discretion in issuing an order to
revoke[.]” Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). “Proof of a
single violation is sufficient to support a revocation.” Canseco v. State, 199 S.W.3d 437,
439 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). In reviewing the evidence that was
before the trial court, we note that the trial court had the responsibility to judge the
credibility of the witnesses and the weight to give the evidence admitted during the
hearing. Canseco, 199 S.W.3d at 439. Therefore, in reviewing the trial court’s decision to
revoke, the evidence presented during the hearing is reviewed on appeal in the light most
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favorable to the trial court’s ruling. See Garrett v. State, 619 S.W.2d 172, 174 (Tex.
Crim. App. 1981).
Burglary of a habitation can be committed in several ways. For example, a person
is guilty of burglarizing a habitation if, without the effective consent of the owner, the
person enters the habitation intending to commit a theft. See Tex. Penal Code Ann. §
30.02 (West 2011). To prove that Douglas burglarized a house, the State presented two
witnesses. The State’s first witness, T.L., testified that on August 31, 2011, Douglas and
two other men asked her if she wanted to buy a television; she told them yes. T.L.
overheard the two others say they were going to “hit [a neighbor’s] house.” According to
T.L., when Douglas and the others left, they went across the street to the neighbor’s
house they said they were going to burglarize. T.L. noticed that the men put towels over
their heads as they approached the neighbor’s house, but then they disappeared from
view. At that point, T.L. called the police; after the police arrived, the police approached
the back of the neighbor’s house. T.L. saw Douglas and the other men come out of the
front door of the neighbor’s house, and she saw Douglas walk away from the scene.
Later, the police took T.L. to Douglas’s mother’s house, and T.L. identified Douglas as
the person she had seen leaving the neighbor’s house. T.L. also identified Douglas at the
revocation hearing.
The State’s second witness owned the house where the August 2011 burglary
occurred. The homeowner testified that on August 31, 2011, when she returned to her
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house, she found that it had been broken into and ransacked. The homeowner found that
several items had been taken, including jewelry. The homeowner testified that she did not
give Douglas permission to enter her home or to take anything from it.
Douglas also testified during the revocation hearing. According to Douglas, he
was with the two other men in August 2011 when he told T.L. that he would check to see
if anyone had a television for sale. After talking to T.L., Douglas claimed he was walking
home by himself when the police stopped him, claiming that he had burglarized a house
in the neighborhood. Douglas admitted that he ran from the police after they told him he
was under arrest; but, according to Douglas, he ran and hid at his mother’s house because
he was scared. Subsequently, Douglas refused to turn himself in; the police arrested him
at his mother’s house. Douglas claimed that T.L. had falsely accused him of burglarizing
the house because before the date the offense occurred, they had argued.
The testimony during the revocation hearing allowed the trial court to infer that
Douglas entered the house without the homeowner’s permission intending to commit a
theft. The question of whether Douglas entered the house was established by T.L.’s
testimony. “It is well established that a conviction may be based on the testimony of a
single eyewitness.” Davis v. State, 177 S.W.3d 355, 359 (Tex. App.—Houston [1st Dist.]
2005, no pet.) (citing Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971)). The
trial court was free to credit the homeowner’s testimony that she did not give Douglas
permission to enter her home. As the exclusive judge of the credibility of the witnesses,
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the trial court was free to reject Douglas’s claim that T.L. had falsely accused him of
burglary. See Canseco, 199 S.W.3d at 439. The trial court also reasonably inferred that
Douglas entered the home intending to commit theft based on the homeowner’s
testimony that she found items missing from her home after finding it ransacked. The
judgment is also supported by testimony that Douglas was seen approaching and then
leaving the house, testimony that he did not have the homeowner’s permission to be
there, and testimony indicating that he fled to avoid arrest.
Viewing the evidence in a light most favorable to the trial court’s ruling, we
conclude the evidence is sufficient to prove, by a preponderance of the evidence, that
Douglas violated at least one condition of the trial court’s community supervision order.
See Rickels, 202 S.W.3d at 763-64; Garrett, 619 S.W.2d at 174. We further conclude the
trial court did not abuse its discretion in revoking the community supervision order. See
Rickels, 202 S.W.3d at 763-64; Canseco, 199 S.W.3d at 439. We overrule Douglas’s first
issue.
In issue two, Douglas contends the trial court erred by ordering that he pay
attorney’s fees related to his defense, and by ordering that he pay court costs. According
to Douglas, the trial court found that he was indigent, and nothing in the record shows a
material change occurred with respect to his financial circumstances. It is undisputed that
the trial court found Douglas indigent in connection with the revocation proceedings, and
that he was also found to be indigent for purposes of this appeal.
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In support of his claim the trial court erred in awarding the fees and costs at issue,
Douglas relies on articles 26.04(p) and 26.05(g) of the Texas Code of Criminal
Procedure. See Tex. Code Crim. Proc. Ann. arts. 26.04(p), 26.05(g) (West Supp. 2012).
Article 26.04(p) provides that a defendant, who is determined to be indigent, is presumed
to remain indigent for the remainder of the proceedings unless a change in the
defendant’s financial circumstances occurs. Id. art. 26.04(p). Article 26.05(g) authorizes
trial courts to require that a defendant contribute to the expense of a court-appointed
attorney in the following circumstance:
If the court determines that a defendant has financial resources that enable
him to offset in part or in whole the costs of the legal services provided,
including any expenses and costs, the court shall order the defendant to pay
during the pendency of the charges or, if convicted, as court costs the
amount that it finds the defendant is able to pay.
Id. art. 26.05(g). Douglas’s argument also relies on Mayer v. State, 309 S.W.3d 552 (Tex.
Crim. App. 2010). In Mayer, the Texas Court of Criminal Appeals concluded that the
evidence of the defendant’s financial resources and ability to pay was insufficient to
support court-ordered payment of court-appointed-attorney’s fees. See 309 S.W.3d at
555-56; see also Roberts v. State, 327 S.W.3d 880, 884 (Tex. App.—Beaumont 2010, no
pet.) (applying Mayer, we concluded that no evidence supported the trial court’s decision
that a defendant could pay attorney’s fees where no evidence was introduced that showed
the defendant’s finances had materially changed after having been found to be indigent).
In determining that the trial court erred in ordering the defendant to pay court-appointed-
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attorney’s fees, the Mayer Court relied upon the language of article 26.04(p), which
requires a showing that the indigent’s financial circumstances had changed. See Tex.
Code Crim. Proc. Ann. art. 26.04(p); Mayer, 309 S.W.3d at 556-57.
Although Douglas relies on articles 26.04(p) and 26.05(g) to support his
arguments, the record shows that Douglas was not ordered to reimburse or pay for having
received court-appointed counsel. The trial court’s records reflect that no attorney’s fees
were included in the $822 the trial court awarded as administrative fees. Instead, the trial
court awarded various administrative fees, taxed Douglas with court costs, and ordered
that he reimburse those who suffered financial losses which resulted from Douglas’s
2010 robbery.
Restitution awards are authorized by statute. See Tex. Code Crim. Proc. Ann. art.
42.037(a) (West Supp. 2012). The provision authorizing a trial court to order restitution
in addition to a fine does not require the trial court to consider the defendant’s ability to
pay the restitution award. See id. art. 42.037(c) (West Supp. 2012).2 Additionally,
Douglas’s indigency did not prevent the trial court from assessing the administrative fees
and court costs at issue. The provisions that govern the payment of administrative fees
and court costs in a criminal proceeding do not reference the defendant’s ability to pay;
2
The trial court revoked its community supervision order because Douglas
committed a burglary, not because he failed to make restitution as required by the order.
Nevertheless, had the trial court revoked its community supervision order in Douglas’s
case on the basis that he had failed to comply with the restitution that it ordered, the trial
court would have had to consider Douglas’s ability to pay. See Tex. Code. Crim. Proc.
Ann. art. 42.037(h) (West Supp. 2012).
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instead, the Code of Criminal Procedure requires a person convicted of an offense to pay
certain designated fees as costs. See Tex. Gov’t Code Ann. § 102.021 (West Supp. 2012).
Additionally, section 103.021 of the Government Code, which authorizes a trial court to
order a defendant to pay certain additional fees and costs, does not prevent a trial court
from taxing the costs at issue here when a defendant is unable to pay them. See id. §
103.021 (West Supp. 2012).
We conclude that the provisions of section 103.021, like those of section 102.021,
allow trial courts to award certain costs, including those that were assessed against
Douglas, without regard to whether he could actually pay them. Because the Legislature
authorized trial courts to award restitution and to tax the administrative fees and the court
costs at issue without regard to a defendant’s ability to pay them, the trial court did not
err by including these awards in its final judgment. We overrule issue two. Having
overruled both of Douglas’s issues, we affirm the trial court’s judgment.
AFFIRMED.
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HOLLIS HORTON
Justice
Submitted on June 27, 2012
Opinion Delivered December 19, 2012
Do Not Publish
Before Gaultney, Kreger, and Horton, JJ.
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