Donald Ray Davis v. State ( 2020 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-19-00055-CR
DONALD RAY DAVIS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 108th District Court
Potter County, Texas
Trial Court No. 72363-E, Honorable Douglas R. Woodburn, Presiding
April 17, 2020
MEMORANDUM OPINION
Before PIRTLE and PARKER and DOSS, JJ.
Appellant, Donald Ray Davis, appeals the trial court’s decision to adjudicate him
guilty of the offense of aggravated assault with a deadly weapon, and impose a sentence
of ten years’ incarceration. We affirm the trial court’s judgment.
Factual and Procedural Background
Appellant was indicted for the offense of aggravated assault with a deadly weapon
on January 11, 2017. Pursuant to a plea bargain agreement, appellant pled guilty to the
offense on April 20, 2017. The trial court accepted the plea-bargained terms and deferred
adjudication of appellant’s guilt conditioned upon appellant’s adherence to specified terms
of community supervision for a period of eight years. On August 1, 2017, the State filed
a motion to proceed to an adjudication of guilt, which alleged that appellant had violated
three terms of his community supervision. The violations alleged by the State were that
appellant committed the crime of arson while he was in Topeka, Kansas; failed to pay a
$60 supervision fee for May of 2017; and failed to pay a $100 transfer fee by May 18,
2017.
A hearing was held on the motion on January 30, 2019. Appellant pled “not true”
to the State’s allegations. Following a brief hearing, the trial court adjudicated appellant
guilty of the aggravated assault with a deadly weapon charge and assessed his
punishment at ten years’ incarceration. From this judgment, appellant timely appeals.
Appellant presents four issues by his appeal. Appellant’s first issue contends that
the trial court abused its discretion by admitting a document purporting to be a prior
conviction of appellant into evidence over appellant’s hearsay objection. By his second
issue, appellant contends that the trial court violated appellant’s right to confrontation.
Appellant’s third issue contends that the trial court abused its discretion in adjudicating
appellant’s guilt because the evidence was insufficient to prove that appellant violated the
terms of his community supervision. Finally, by his fourth issue, appellant contends that
the judgment should be reformed to waive costs or modified to reflect only statutorily
authorized costs.
2
Issues One, Two, and Three
By his first two issues, appellant challenges the trial court’s admission of a
document purporting to be a judgment reflecting appellant’s conviction for arson in
Kansas. Appellant’s first issue is presented in terms of the evidence being hearsay, while
his second issue challenges the evidence as a violation of appellant’s confrontation rights.
Appellant contends that the judgment was not sufficiently connected to him such that it
could be used to establish that he violated the terms of his community supervision. By
his third issue, appellant contends that the evidence was insufficient to prove that he
violated any terms of his deferred adjudication community supervision.
An appellate court reviews whether a trial court has properly revoked community
supervision under an abuse of discretion standard. Leonard v. State, 385 S.W.3d 570,
576 (Tex. Crim. App. 2012) (op. on reh’g). An abuse of discretion occurs if the trial court’s
ruling lies outside the zone of reasonable disagreement, Henley v. State, 493 S.W.3d 77,
83 (Tex. Crim. App. 2016), or if its decision is arbitrary, unreasonable, or made without
reference to any guiding rules or principles. Rhomer v. State, 569 S.W.3d 664, 669 (Tex.
Crim. App. 2019).
To revoke community supervision, whether it be regular probation or deferred
adjudication, the State must prove at least one violation of probation by a preponderance
of the evidence. Hacker v. State, 389 S.W.3d 860, 864-65 (Tex. Crim. App. 2013). A
preponderance of the evidence means that greater weight of the credible evidence which
would create a reasonable belief that the defendant has violated a condition of his
probation. Id. at 865.
3
We need not address each of the specific challenges raised by appellant relating
to the admission of the Kansas judgment because the State met its burden to prove that
appellant violated the terms of his community supervision. The State was required to
prove that appellant violated the terms of his community supervision in one of the
manners identified in the State’s motion to proceed to adjudication. See id. at 864-65. It
did so when appellant testified that he committed arson and was convicted of the offense
in Topeka, Kansas.1 We note that appellant testified that he committed the arson offense
after his trial counsel specifically advised him on the record that his testimony could be
used by the trial judge to find the State’s allegation to be true. The State was only required
to prove that appellant committed a violation of the terms of his community supervision,
not that he had been convicted of an offense. See Hancock v. State, 491 S.W.2d 139,
141 (Tex. Crim. App. 1973). Likewise, proof by a preponderance of the evidence
establishing that appellant violated one ground for revocation is sufficient to support the
trial court’s decision to proceed to an adjudication of appellant’s guilt. Smith v. State, 286
S.W.3d 333, 342 (Tex. Crim. App. 2009). Because the evidence established that
appellant violated a term of his community supervision that was alleged by the State, any
error in the admission of the Kansas judgment was rendered harmless. See Moreno v.
State, Nos. 01-15-00997-CR, 01-15-00998-CR, 2017 Tex. App. LEXIS 726, at *6-7 (Tex.
1 Appellant contends that he was “essentially forced to testify” after the Kansas judgment was
admitted into evidence. The record does not reflect appellant’s motivation for testifying. Certainly, the
record does not establish that appellant felt compelled to testify to rebut the Kansas judgment when his
testimony established that he had committed the offense reflected in the Kansas judgment. Likewise,
appellant fails to cite any authority that would support the position that a decision to testify is rendered
involuntary when it is induced by a trial court’s evidentiary error. See Vercher v. State, No. 03-13-00799-
CR, 2015 Tex. App. LEXIS 10337, at *9-10 (Tex. App.—Austin Oct. 7, 2015, no pet.) (mem. op., not
designated for publication) (“Vercher has not cited any authority in support of his argument that a
defendant’s decision to testify is not voluntary when made in response to alleged errors committed by the
trial court.”).
4
App.—Houston [1st Dist.] Jan. 26, 2017, no pet.) (mem. op., not designated for
publication) (“Any error in admitting Cruz's out-of-court statements was harmless, as the
rest of the evidence established other grounds sufficient to adjudicate Moreno’s guilt.”).
Because appellant’s testimony is sufficient to establish that the State properly
proved a ground for adjudication, we overrule each of appellant’s first three issues.
Issue Four
By his fourth issue, appellant contends that the trial court’s judgment adjudicating
appellant guilty should be reformed to waive costs assessed against appellant or to reflect
only those costs for which there is a statutory basis.
“[C]ourt costs are not part of the guilt or sentence of a criminal defendant, nor must
they be proven at trial; rather, they are ‘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) (quoting Armstrong v. State, 340 S.W.3d 759,
767 (Tex. Crim. App. 2011)). In reviewing the assessment of court costs on appeal, we
determine if there is a basis for the cost, not if there was sufficient evidence offered at
trial to prove each cost. Id. “Requiring a convicted defendant to pay court costs does not
alter the range of punishment, is authorized by statute, and is generally not conditioned
on a defendant’s ability to pay.” Young v. State, No. 12-19-00263-CR, 2019 Tex. App.
LEXIS 11269, at *2 (Tex. App.—Tyler Dec. 31, 2019, no pet.) (citing TEX. CODE CRIM.
PROC. ANN. art. 42.16 (West 2018); Armstrong, 340 S.W.3d at 767; and Johnson v. State,
405 S.W.3d 350, 353 (Tex. App.—Tyler 2013, no pet.)).
5
While the trial court did not determine whether appellant had a present ability to
pay costs, the assessment of costs is authorized even if appellant has no present ability
to pay. Id. The trial court determined that appellant did not have a present ability to pay
costs but that he will in the future. We do not find anything erroneous in this
determination.
Appellant also contends that the “Sheriff Fees” and “Sheriff Service Fee” that were
assessed against him in the Bill of Costs do not have statutory mandates. Article 102.011
of the Texas Code of Criminal Procedure authorizes the imposition of fees for services
provided by peace officers. See TEX. CODE CRIM. PROC. ANN. art. 102.011 (West Supp.
2019). In the original Bill of Costs that was attached to the trial court’s January 30, 2019
judgment, the Sheriff’s Fees assessed against appellant were itemized as follows: $10.00
for bonds, $5.58 for subpoena service, $60.00 for warrants, and $445.00 for
transportation expenses. Each of these fees are mandated by article 102.011. When a
subsequent Bill of Costs was issued, it listed a $10.00 Sheriff Fee and a $510.58 Sheriff
Service Fee. It appears that the $510.58 Sheriff Service Fee combines the $5.58
subpoena service, $60.00 warrants, and $445.00 transportation expenses. The Sheriff
Fees in the subsequent Bill of Costs appear to reflect the $10.00 bond fee. Appellant
does not challenge the itemized fees assessed in the original Bill of Costs and it appears
that each of these fees are specifically authorized by article 102.011.
We overrule appellant’s fourth issue.
6
Conclusion
Having overruled each of appellant’s issues, we affirm the judgment of the trial
court.
Judy C. Parker
Justice
Do not publish.
7