Tawana Christina Barnes v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00134-CR
No. 02-22-00135-CR
No. 02-22-00136-CR
No. 02-22-00137-CR
___________________________
TAWANA CHRISTINA BARNES, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 371st District Court
Tarrant County, Texas
Trial Court Nos. 1679747D, 1679749D, 1708347D, 1712149D
Before Kerr, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
I. Introduction
Appellant Tawana Christina Barnes appeals the inclusion of restitution in two
of her four judgments of conviction and argues that one of the remaining judgments
does not support the $355 in its attached order to withdraw funds because the
judgment “specifically states that those costs and fees are to be credited for time
served.” We delete the order to withdraw funds but otherwise affirm the trial court’s
judgments because restitution is a community-supervision condition to which Barnes
did not object.
II. Background
Barnes stole $143,339.02 from her dental-office employer between 2017 and
2021. She also used her employer’s Drug Enforcement Agency number to write
prescriptions for herself and her family members. After she was fired, Barnes found a
job at another dental office and stole $10,782.55 from that employer between May
and September 2021.1
In the subsequent consolidated trial on drug possession via fraudulent
prescriptions2 and theft offenses,3 Barnes pleaded guilty and asked the jury to assess
1
Barnes’s dental-office crime spree began in 2016 when she stole $30,000 from
another dentist but returned the money and was not prosecuted.
2
The prescription-related cases were cause number 1679747D (02-22-00134-
CR) (Phentermine) and cause number 1679749D (02-22-00135-CR) (Carisoprodol).
See Tex. Health & Safety Code Ann. § 481.129.
2
her punishment. During the punishment trial, Barnes testified that she had offered to
work to pay back the money if she were given probation, and she asked for probation
so that she could find a job and pay restitution. Barnes stated, “I know that given the
opportunity for probation, I will pay them back. I will work hard. I will make sure I
make restitution.”
During closing arguments, the prosecutor asked the jury to give Barnes a ten-
year sentence for each drug conviction, to give her the maximum sentences and
probation for each theft conviction, and to order her to “make restitution . . . for all
that money that she stole” after she served her jail time. Defense counsel asked for
probation on all of the charges “because the only way that she can make restitution to
these dentists is by being out of jail and working.” Defense counsel also pointed out
that restitution payments would be made through the court so that the trial court
could revoke Barnes’s probation if she failed to make her payments.
The jury deliberated for two hours before assessing seven years’ confinement in
each drug case, two years’ confinement in the state-jail-felony-theft case, and ten
years’ confinement in the third-degree-felony-theft case; it recommended community
supervision in the theft cases.
3
The theft cases were cause number 1708347D (02-22-00136-CR), a third-
degree felony in the aggregate value of $30,000 or more but less than $150,000, and
cause number 1712149D (02-22-00137-CR), a state-jail felony in the aggregate value
of $2,500 or more but less than $30,000. See Tex. Penal Code Ann. § 31.03.
3
The trial court sentenced Barnes accordingly and set the sentences to run
concurrently. It suspended Barnes’s theft sentences and placed her on community
supervision for five years for the state-jail-felony theft and for ten years for the third-
degree-felony theft. At that time, the trial court warned Barnes that she would be
subject to “the terms and conditions of the community supervision that an officer
[would] go over with [her].” The community-supervision conditions, which were
signed by Barnes that day, state, “RESTITUTION TO BE DETERMINED.”
Less than ten days later, the trial court held a hearing on the State’s restitution
motions. Barnes was present for the hearing. At the hearing’s conclusion, the trial
court orally announced that Barnes owed $138,839.55 in restitution for the third-
degree-felony theft, which would be partially garnished from her inmate account while
in custody, and $10,228.55 in restitution for the state-jail-felony theft, which would
not be garnished while Barnes was in custody. The trial court supplemented the
community-supervision conditions to reflect the amount of restitution ordered in
each theft case.
The judgment of conviction for the third-degree-felony theft lists restitution in
the amount of $138,839.55 “(see Cond. C.S.)” and notes that the amount is to be
partially garnished from Barnes’s inmate account with the remainder to be paid upon
release “monthly and calculated by dividing total remaining amount of restitution by
number of months remaining on ordered probation.” The judgment of conviction for
the state-jail-felony theft lists restitution in the amount of $10,228.55 “(see Cond.
4
C.S.)” and notes that the amount is to be paid after Barnes’s release from
incarceration with the “amount payable per month being $10,228.55 divided amo[ng]
[the] remaining months ordered for [the] probation sentence.”
III. Discussion
In her first two points, Barnes complains that restitution was not pronounced
orally at the punishment trial’s conclusion and must be deleted from the theft
judgments, referring us to Burt v. State, 445 S.W.3d 752 (Tex. Crim. App. 2014), to
support her argument. But Burt did not involve restitution as a community-
supervision condition. Cf. id. at 754–56. Rather, at the sentencing hearing, the trial
court notified the defendant, who had been convicted of misapplication of fiduciary
property in excess of $200,000 and had been sentenced to fourteen years’
confinement, that restitution would be assessed, but the trial court did not specify the
amount at that time. Id. at 754, 759. The next day, in the parties’ absence and without
a hearing or any agreement by the parties, the trial court entered $591,000 restitution
in the written judgment. Id. at 755–56.
The Court of Criminal Appeals noted that when a defendant is not put on
notice that restitution might be ordered until it appears in the written judgment—such
as when neither the parties nor the trial court mentions restitution during the
sentencing hearing or during the sentence’s oral pronouncement—this violates the
defendant’s legitimate expectation that the sentence actually received is the same as
that orally pronounced in open court. Id. at 759–60. In such a case, a defendant is
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entitled to have the restitution order deleted because the written judgment does not
match the sentence’s oral pronouncement. Id. at 760.
In contrast, if restitution constitutes part of the trial court’s oral
pronouncement, if the evidence at trial shows that a significant amount of restitution
is a certainty, and if there is no dispute about the defendant’s criminal liability for the
loss, then when the dispute is about the restitution’s specific amount, the order should
be vacated and remanded for a hearing to determine an accurate restitution amount
and to provide the defendant with due process. Id. The court concluded in Burt that
the appropriate result was to remand for a hearing on the amount of restitution. See id.Here, community supervision involving restitution was discussed during the
sentencing hearing. See id. at 761; see also Burg v. State, 592 S.W.3d 444, 451 (Tex. Crim.
App. 2020) (identifying items that do not make a sentence illegal and listing
community-supervision terms that “includ[e] restitution when it is a condition of
probation”). The trial court informed Barnes during its oral pronouncement that she
would be subject to the conditions of community supervision, and the community-
supervision conditions signed by Barnes that day state, “RESTITUTION TO BE
DETERMINED.” The trial court then held a hearing—at which Barnes was
present—on the amount of restitution to be included in the community-supervision
conditions. See Gutierrez-Rodriguez v. State, 444 S.W.3d 21, 24 (Tex. Crim. App. 2014)
(holding that when restitution and its basis were discussed at trial and the appellant
did not object to the restitution requirement in her probation conditions, she could
6
not raise the issue on appeal because “she [had] bound herself to the terms of the
probation contract by accepting the benefits of the contract without objection”).
The record shows that Barnes did not object to the restitution community-
supervision condition for her theft cases when she had the opportunity to do so and
that she otherwise received due process regarding the amount of restitution and its
inclusion in the conditions. See id.; cf. Alexander v. State, 301 S.W.3d 361, 364 (Tex.
App.—Fort Worth 2009, no pet.).4 We overrule her first two points.
In her third point, Barnes argues that her Phentermine-possession judgment
does not support the $355 in the trial court’s order to withdraw because the judgment
“specifically states that those costs and fees are to be credited for time served,” and
she asks that the judgment be modified to delete the withdrawal order. The State
agrees. See Tex. Code Crim. Proc. Ann. art. 43.09(b). We sustain Barnes’s third point.
4
In Alexander, we deleted a restitution order for lack of oral pronouncement at
sentencing upon revocation of a defendant’s deferred-adjudication community
supervision. 301 S.W.3d at 364. The defendant had pleaded guilty and had received
five years’ deferred-adjudication community supervision, which included the payment
of $10,871.25 as a condition. Id. at 362. Upon revocation, the trial court adjudicated
the defendant guilty and orally sentenced him to ten years’ confinement but did not
orally pronounce the remaining $10,311.25 in restitution that it had included in the
written judgment. Id. Because Barnes’s complaint pertains to an unobjected-to
community-supervision condition and not a revocation and subsequent failure to
pronounce, Alexander is inapposite.
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IV. Conclusion
Having sustained Barnes’s third point, we delete the order to withdraw in cause
number 1679747D (02-22-00134-CR) and affirm that judgment as modified. Having
overruled Barnes’s first and second points, we affirm the remaining judgments.5
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: April 27, 2023
5
This includes the judgment in the Carisoprodol case as Barnes does not raise
any point challenging that conviction.
8