Devon Ray Davis v. State ( 2015 )

ACCEPTED
06-15-00032-CR
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
6/25/2015 9:06:52 PM
DEBBIE AUTREY
06-15-00032-CR CLERK
No. 06-14-00032-CR
FILED IN
6th COURT OF APPEALS
TEXARKANA, TEXAS
IN THE COURT OF APPEALS 6/26/2015 9:22:00 AM
SIXTH DISTRICT OF TEXAS DEBBIE AUTREY
AT TEXARKANA Clerk
DEVON RAY DAVIS
APPELLANT
v.
THE STATE OF TEXAS,
APPELLEE
On Appeal from the 196th Judicial District Court
Of Hunt County, Texas
Trial Court Cause 22,886
Hon. Joe M. Leonard, Judge Presiding
APPELLANT’S BRIEF
Katherine A. Ferguson (SBN 06918050)
Renshaw, Davis & Ferguson, L.L.P.
2900 Lee Street, Suite 102
P.O. Box 21
Greenville, Texas 75403-0021
Telephone: (903) 454-6050
Facsimile: (903) 454-4898
Email: rdflawoffice@yahoo.com
ORAL ARGUMENT NOT REQUESTED
IDENTITIES OF PARTIES AND COUNSEL
Appellant: Devon Ray Davis
Defense Counsel at Trial: Jeffrey Jackson
1400 Preston Road, Suite 400
Plano, Texas 75093
Appellant’s Attorney on Appeal: Katherine A. Ferguson
Renshaw, Davis & Ferguson, L.L.P.
2900 Lee Street, Suite 102
P.O. Box 21
Greenville, Texas 75403-0021
Appellee’s Attorney at Trial: Calvin Grogan
Assistant District Attorney
Hunt Co. District Attorney
P.O. Box 441
Greenville, Texas 75403-0441
Appellee’s Attorney on Appeal: Calvin Grogan
Assistant District Attorney
Hunt Co. District Attorney
P.O. Box 441
Greenville, Texas 75403-0441
Trial Judge: Hon. Joe M. Leonard
196th Judicial District Court
P.O. Box 1097
Greenville, Texas 75403-1097
TABLE OF CONTENTS
Identities of Parties and Counsel ………………………….……..…….ii
Table of Contents………………………………………………………iii
Index of Authorities………………………………………....................iv
Statement of the Case………………………………………..................2
Issues Presented ………………………………………………………. 3
Statement of Facts ………………………………………………….…3
Summary of the Argument …………………………………………… 7
Argument and Authorities ….…………….…………….…...................8
ISSUE NUMBER ONE ……………………………………………….8
THE TRIAL COURT ERRED IN ENTERING
THE JUDGMENT BECAUSE IT VARIES FROM
THE ORAL PRONOUNCEMENT OF
SENTENCE.
ISSUE NUMBER TWO:
THE TRIAL COURT ERRED IN
ASSESSING ATTORNEY’S FEES AND
UA FEES BECAUSE THE RECORD
DOES NOT ESTABLISH APPELLANT
HAD THE ABILITY TO PAY
PRAYER……………………………………..........................................10
CERTIFICATE OF SERVICE…..……………………………………...11
CERTIFICATE OF COMPLIANCE …………………………………11
INDEX OF AUTHORITIES
Cases
Armstrong v. State, 340 S.W.3d 759 (Tex. Crim. App. 2011) …………..10
Cates v. State, 402 S.W.3d 250 (Tex. Crim. App. 2013) …………… …10
Coffey v. State, 979 S.W.2d 326 (Tex. Crim. App. 1998) ………… …….8
Ex Parte Madding, 70 S.W.3d 131 (Tex. Crim. App 2002) ……………...8
Martin v. State, 405 S.W.944 (Tex. App. – Texarkana 2013, no pet.) ...10
Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010) ……………..10
Statutes and Rules
TEX. CODE CRIM. PROC. art 26.05(g) ……………………………………9
No. 06-14-00032CR
IN THE COURT OF APPEALS
SIXTH DISTRICT OF TEXAS
AT TEXARKANA
DEVON RAY DAVIS
APPELLANT
v.
THE STATE OF TEXAS,
APPELLEE
On Appeal from the 196th Judicial District Court
Of Hunt County, Texas
Trial Court Cause 22,886
Hon. Joe M. Leonard, Judge Presiding
APPELLANT’S BRIEF
TO THE HONORABLE COURT OF APPEALS:
NOW COMES Appellant, DEVON RAY DAVIS, and respectfully
submits this brief in support of his appeal of the judgment of the 196th
Judicial District Court of Hunt County, Texas, the Honorable Joe M.
Leonard, presiding.
STATEMENT OF THE CASE
The Appellant, DEVON RAY DAVIS, was charged with the offense
of robbery. (CR 10). The indictment also included three enhancement
paragraphs, which increased the range of punishment for the offense to a
minimum of twenty-five (25) years up to ninety-nine (99) years or life in
prison. (CR 11-12). Appellant entered into a plea agreement wherein
Appellant was placed on ten (10) years deferred probation, a $500.00 fine,
with SAFP and violence terms, as well as court costs. (CR 18) Appellant
was placed on probation on October 10, 2005. (CR 23-32). On July 7, 2009
Appellant’s probation was amended. (CR 39) On May 5, 2010, a Motion to
Revoke Deferred Adjudication Community Supervision and Request for
Final Adjudication (“Motion to Revoke”) was filed. (CR 42) The Motion
to Revoke was again filed on August 12, 2013. (CR 64) Appellant’s
conditions of probation were further amended on November 6, 2013 and the
Motion to Revoke was dismissed without prejudice. (CR 81-82) The Hunt
County Probation Department requested a violation review hearing on
September 23, 2014 (CR 87). On October 30, 2014 the Second Motion to
Revoke Deferred Adjudication Community Supervision and Request for
Final Adjudication was filed (CR 94). Thereafter, an Amended Second
Motion to Revoke Deferred Adjudication Community Supervision and
Request for Final Adjudication (“Amended Second Motion to Revoke”) was
filed on November 20, 2014. (CR 120) A hearing was held on the
Amended Second Motion to Revoke on December 16, 2014. (RR Vol. 1)
After hearing testimony, the Trial Court then revoked DEVON RAY
DAVIS’ probation and sentenced him to sixty (60) years in the Texas
Department of Corrections, Institutional Division. The written judgement
imposed $1,970.00 in attorney’s fees, an additional $367.00 in attorney’s
fees, and $122 UA fee. (CR 122) Appellant filed a pro se notice of appeal
on January 14, 2015. (CR 132) This appeal is taken therefrom.
ISSUES PRESENTED
ISSUE NUMBER ONE: THE TRIAL COURT ERRED IN ENTERING
THE JUDGMENT BECAUSE IT VARIES FROM
THE ORAL PRONOUNCEMENT OF
SENTENCE.
ISSUE NUMBER TWO: THE TRIAL COURT ERRED IN ASSESSING
ATTORNEY’S FEES AND UA FEES BECAUSE
THE RECORD DOES NOT ESTABLISH
APPELLANT HAD THE ABILITY TO PAY
STATEMENT OF FACTS
Devon Ray Davis (hereinafter, “Appellant”) was indicted for the
offense of robbery. (CR 1)1 He plead guilty to that offense (CR 19) as well
as pleading true to the enhancement paragraphs in the indictment. (CR 23)
1
References to the Clerk’s Record are designated as “CR #”, references to the Reporter’s Record are
designated RR Vol. ___, page #: line #, and State and Defendant’s exhibits are designated SX and DX,
respectively)
Appellant was admonished about the range of punishment as well as the
consequences of his plea. (CR 19, 20) Appellant was placed on ten (10)
years deferred probation, subject to violence terms and the requirement to
attend and successfully complete the SAFP program. (CR 23) Appellant
was required to remain in the Hunt County Jail until such time as he could
be transferred to a SAFP facility (CR 29) Appellant was also currently on
parole for an offense at the time he was placed on probation and his parole
was revoked and he was sent to prison prior to being able to start his
probation. (RR Vol. 1, page 43, lines 13-22) Appellant’s probation was
amended twice, once in July of 2009 to permit Appellant to reside outside of
Hunt County (CR 39) and in November of 2013 (CR 82). The docket sheet
for the 196th Judicial District Court shows that Appellant was present and
represented by counsel at both hearings that resulted in amending the terms
of his probation (CR 7)
In September of 2014, the probation department requested a violation
review hearing (CR 87) and on October 30, 2014 filed a Motion to Revoke.
(CR 94) An Amended Second Motion to Revoke was filed on November
20, 2014, which alleged ten (10) paragraphs of violations (CR 120) On
December 16, 2014, the Trial Court conducted a hearing on the Amended
Second Motion to Revoke. The State called Derrick Bercher (“Bercher”) as
its first witness. Bercher is an employee with the Hunt County Community
Supervision and Corrections Department (“HCCSCD”) who was charged
with collecting urine samples from Appellant for the purposes of drug
screens. (RR Vol. 1, p. 8:16-19). Bercher collected a sample from
Appellant on August 14, 2014 (RR Vol. 1, p. 10:3-9) and on September 4,
2014 (RR Vol. 1, p. 8:18-19) Bercher testified that he sealed each package
for transmittal to the drug testing facility. (RR Vol 1, p. 13:7- p. 14:8) The
State next called Steve Harris, lab director and senior analyst at One Source
Technology (“Harris”). (RR Vol. 1, p. 16:7-13). Harris testified that he
received the urine samples of Appellant sent in by the HCCSCD and tested
them for the presence of illegal drugs. (RR Vol. 1, p. 16:21-23; 17:14-24;
21:10-18) Harris testified that he prepared reports with the results of his
testing that showed Appellant had tested positive for methamphetamines on
both tests (RR Vol. 1, p.20:1; 22:10-12) (SX 1 &2).
Candice Mead, an officer with HCCSCD, (“Mead”) testified. (RR
Vol. 1, p. 31:6-7). Mead was the supervising probation officer for
Appellant. RR (Vo1. 1, p. 31:10-13) Mead testified that a condition of
Appellant’s probation was that he not use any illegal drugs. (RR Vol. 1, p.
32:11-15) Mead also testified that the Appellant was delinquent on paying
the fees for probation (RR Vol. 1, p. 32:16-33:20), that Appellant had not
completed all of his community service hours as required (RR Vol. 1, p.
35:14-36:12; 40:13-16) and that Appellant failed to report as required (RR
Vol. 1, p. 36:12-37:20). Mead acknowledged that she did know Appellant
had held a job and had made some payments (RR Vol. 1, 49:7), but that
Appellant had indicated to her that at times he could not afford to pay the
probation fines and fees and the HCCSCD had not established a formal
budget to show Appellant’s income and expenses. (RR Vol. 1, p. 38:8-11;
42:15-43:7)
Detective Warren Mitchell, an investigator with the Greenville Police
Department, (“Mitchell”) testified. (RR Vol. 1, p. 55:1) Mitchell testified
that based on his training and experience, Alprazolam and Trazadone are
dangerous drugs. (RR Vol. 1, p. 55:22-56:12) Officer Greg Hughes
(“Hughes”) testified that he had encountered Appellant on October 21, 2014,
(RR Vol. 1, 60:3-21) Hughes testified that in the course of speaking with
Appellant, he observed a cellophane wrapper in Appellant’s pocket and that
in his training and experience, such wrappers usually contained narcotics.
(RR Vol. 1, p. 61:13-62:8) Hughes testified he removed the wrapper, looked
in it and it contained eight pills and a packet of synthetic marijuana. (RR
Vol. 1, p. 63:8-10) Hughes also testified that the location where he
encountered the Appellant was a drug free zone. (RR Vol. 1, p. 70:3-5)
After Hughes’ testimony, the State rested. (RR Vol. 1, p. 71:14-15).
The State abandoned paragraphs two and three in the Amended Second
Motion to Revoke. (RR Vol. 1, p. 71:14-15) The Appellant neither testified
nor called any witnesses. (RR Vol. 1, p. 71:18). The Trial Court found
paragraphs 1 and 9 of the Amended Second Motion to Revoke were not true
and found paragraphs 4, 5, 6, 7, 8 and 10 were true. (RR Vol. 1, p. 71:25-
72:2). The State recalled Mead to testify regarding the Appellant’s prior
criminal history. (RR Vol. 1, p. 72:10-25)
The State also called Amber Richardson, another officer with the
HCCSCD. (RR Vol. 1, p. 77:2-8). After calling Richardson, the State rested
and the Appellant rested without testifying or calling any witnesses. (RR
Vol. 1, p. 79:10-11) The Trial Court considered the circumstances of the
original offense, and assessed a punishment of sixty (60) years imprisonment
in the Texas Department of Corrections, Institutional Division. (RR Vol. 1,
p. 82:15-24) A written judgment was signed that imposed the sixty (60)
year sentence, but also imposed $1,970.00 plus $367.00 attorney’s fees and
$122.00 UA fees. (CR 122)
SUMMARY OF THE ARGUMENT
The Trial Court erred when it entered the written judgment because it
varied from the oral pronouncement of sentence in that it added attorney’s
fees and UA costs to the judgment. The Trial Court also erred in adding
attorney’s fees and UA costs because the record for the case is devoid of any
evidence of Appellant’s ability to pay. Therefore, this Court should reform
the judgment of the Trial Court to delete the attorney’s fees and UA costs.
ARGUMENT
ISSUE NUMBER ONE: THE TRIAL COURT ERRED IN ENTERING
THE JUDGMENT BECAUSE IT VARIES FROM
THE ORAL PRONOUNCEMENT OF
SENTENCE.
“A trial court’s pronouncement of sentence is oral, while the
judgment, including the sentence assessed, is merely the written declaration
and embodiment of that oral pronouncement.” Ex parte Madding, 70
S.W.3d 131, 135 (Tex. Crim. App. 2002). If the oral pronouncement of
sentence and the written judgments vary, the oral pronouncement controls.
Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). Here, the
Trial Court’s oral pronouncement of sentence was:
“Therefore I find that to be a violent crime which
deserves sixty years imprisonment. So the judgment will
be for sixty years to do.” (RR Vol. 1, p. 82:22-24)
It was clear when the Trial Court orally pronounced sentence that the
Trial Court was imposing only a term of imprisonment and not additional
attorney’s fees or costs. Therefore, the written judgment varies from the
Trial Court’s oral pronouncement. See Coffey, 979 S.W.2d at 328. (The
orally pronounced sentence is the appealable event and any deviation from
the orally pronounced sentence does not supersede what was imposed in
open court). This court should, upon reviewing the oral pronouncement of
sentence by the Trial Court, reform the written judgment to make it
consistent with the Trial Court’s oral pronouncement.
ISSUE NUMBER TWO: THE TRIAL COURT ERRED IN ASSESSING
ATTORNEY’S FEES AND UA FEES BECAUSE
THE RECORD DOES NOT ESTABLISH
APPELLANT HAD THE ABILITY TO PAY
Assuming arguendo that this Court finds that the addition of
attorney’s fees and costs to the written judgment when not pronounced
orally by the Trial Court isn’t an improper variance, the Trial Court still
erred in assessing attorney’s fees against Appellant. Pursuant to. Art.
26.05(g) of the Texas Code of Criminal Procedure, a trial court may order an
indigent defendant to pay court appointed attorney fees only when the “court
determines that [the] 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.” TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West
2015)
A defendant’s “financial resources and ability to pay are explicit
critical elements in the trial court’s determination of the propriety of
ordering reimbursement of costs” of attorney services. See Armstrong v.
State, 340 S.W.3d 759, 765-66 (Tex. Crim. App. 2011) quoting Mayer v.
State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)
Appellant was found to be indigent not only at the time of the original
plea in 2005 (CR 15), but again when the revocation procedures were
initiated (CR 56 & 118) There is nothing in the record to show any
determination by the Trial Court that Appellant’s indigent status had
changed and that he was able to pay his appointed attorney’s fees. Because
the record shows no support for or finding of Appellant’s ability to pay his
attorney’s fees and UA fees, the assessment was in error and should be
stricken from the written judgment. Cates v. State, 402 S.W.3d 250, 252
(Tex. Crim. App. 2013); see also Mayer, 309 S.W.3d at 556; Martin v. State,
405 S.W.3d 944, 946-47 (Tex. App. – Texarkana 2013, no pet). This Court
should reform the written judgment by deleting the assessment of attorney’s
fees and UA fees.
PRAYER
WHEREFORE, based upon the foregoing, Appellant prays the
judgment be reformed to match the sentence as orally pronounced and that
the assessment of attorney’s fees and UA fees be deleted.
Respectfully submitted,
RENSHAW, DAVIS & FERGUSON,
L.L.P.
By: /s/ Katherine A. Ferguson
Katherine A. Ferguson (SBN
06918050)
2900 Lee Street, Suite 102
P.O. Box 21
Greenville, Texas 75403-0021
Telephone: (903) 454-6050
Facsimile: (903) 454-4898
Email: rdflawoffice@yahoo.com
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the Appellant’s Brief was sent
by first class United States Mail, postage prepaid, to the Honorable Noble
Walker, Hunt County District Attorney, P.O. Box 441, Greenville, Texas
75403-0441 on this the 25th day of June 2015.
I further certify that a true and correct copy of Appellant’s Brief was
sent by first class United States mail, postage prepaid and certified mail,
return receipt requested, to DEVON RAY DAVIS #01975561 c/o James V.
Allred Unit, 2101 FM 369 North, Iowa Park, Texas 76367
/s/ Katherine A. Ferguson
Katherine A. Ferguson
CERTIFICATE OF COMPLIANCE WITH RULE 9.4
Pursuant to Texas Rule of Appellate Procedure 9.4, this certifies that
this document complies with the type volume limitations because it is
computer generated and does not exceed 15,000 words. Using the word
count feature of Microsoft Word, the undersigned certifies that this
document contains 1,601 words in the entire document, except in the
following sections: caption, identities of parties and counsel, statement
regarding oral argument, table of contents, index of authorities, statement of
the case, statement of issues presented, signature, certificate of service and
certificate of compliance. This document also complies with the typeface
requirements as it has been prepared in a proportionally spaced typeface
using Microsoft Word in 14-point Times New Roman.
/s/ Katherine A. Ferguson
Katherine A. Ferguson