Vincent Ray Jackson, Jr. v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-18-00140-CR
________________________
VINCENT RAY JACKSON, JR., APPELLANT
V.
STATE OF TEXAS, APPELLEE
On Appeal from the 32nd District Court
Nolan County, Texas
Trial Court No. 12,317; Honorable Glen Harrison, Presiding
October 16, 2018
OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Pursuant to a plea of guilty before the trial court, without a recommendation as to
punishment, Appellant, Vincent Ray Jackson, Jr., was convicted of possession of a
controlled substance, to-wit: methamphetamine, in an amount of one gram or more but
less than four grams1 and sentenced to eight years confinement in the Institutional
1 TEX. HEALTH & SAFETY CODE ANN. § 481.115(c) (West 2017).
Division of the Texas Department of Criminal Justice. In addition, Appellant was
assessed a fine of $1,000, court costs of $423, attorney’s fees of $1,800, restitution to the
Texas Department of Public Safety Crime Laboratory of $180, and a Crime Stoppers fee
of $50. By two issues, Appellant contends the trial court (1) erred by admitting evidence
of an extraneous offense and (2) abused its discretion in the assessment of sentence.
We agree, in part, that the trial court abused its discretion in the assessment of sentence,
modify the judgment to delete the imposition of certain financial penalties, and affirm the
judgment as modified.2
BACKGROUND
On November 9, 2016, Agent Shawn Lewis of the Criminal Investigations Division
of the Texas Department of Public Safety conducted an undercover controlled buy of 3.34
grams of methamphetamine from Appellant. The buy occurred at Appellant’s residence
in Sweetwater, Nolan County, Texas. Because the buy was made in connection with an
on-going investigation, no arrest was made at that time.
In July 2017, Brian Davis, a licensed peace officer with the Sweetwater Police
Department, received a report that a male and female in a black vehicle with a broken
windshield had attempted to pass two counterfeit $20 bills at a local drive-in restaurant.
A short time later, Officer Davis located a vehicle matching the description given and he
approached the vehicle. As he approached, two males were attempting to leave the
vehicle. Appellant was seated in the front passenger seat. Two counterfeit $20 bills were
2 This case was transferred to this court from the Eleventh Court of Appeals—Eastland, pursuant
to a docket equalization order entered by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001
(West 2013). We have applied precedent from that court where applicable. See TEX. R. APP. P. 41.3.
2
obtained by Officer Davis from the center console of the vehicle and Appellant handed an
additional eight counterfeit $20 bills to another officer at the scene.
A subsequent search of the vehicle revealed two fix-blade knives (one of which
was shown to have been stolen), two coin collections, and additional counterfeit money.3
The search of the vehicle also revealed, in the vicinity of the front passenger’s seat, two
syringes containing a clear, liquid substance. Subsequent laboratory results revealed
that the syringes contained 0.65 grams of methamphetamine.
Appellant was charged with the offense of possession of a controlled substance in
conjunction with the November 9, 2016 transaction with Agent Lewis and two counts of
forgery. On March 5, 2018, in exchange for an “open plea” of guilty (a plea without a
recommendation as to punishment), the State agreed to dismiss the two forgery cases
and it further agreed not to proceed to indictment on another charge of possession of a
controlled substance in conjunction with the two syringes. In addition to his plea of
“guilty,” a judicial confession of guilt was admitted into evidence. The trial court accepted
Appellant’s plea, adjudicated him guilty, and scheduled a punishment hearing for March
27th.
At the punishment hearing, the State offered evidence concerning the
circumstances surrounding Appellant’s arrest, including seizure of the knives, coin
collections, and counterfeit money. The trial court admitted each of those items into
3 The additional counterfeit money consisted of three counterfeit $20 bills, nine $100 bills with the
words “for motion picture use only” written on them, and thirty-three $100 bills with the words “for cinema
use only” written on them.
3
evidence over Appellant’s relevance objection. The trial court also admitted the two
syringes and the lab analysis over Appellant’s relevance objection.
In addition, the trial court heard evidence regarding a forged check in the amount
of $450 made payable to Appellant. A police investigation revealed that the account
holder of the check did not know Appellant, had not issued a check payable to him, and
did not sign the check in question. The police were able to determine that the check was
cashed by Appellant and also secured a photo of him cashing the check, along with a
copy of his driver’s license.
The trial court also heard evidence, without objection, concerning two prior felony
offenses for which Appellant had received deferred adjudication—a 2003 order for the
third degree felony offense of possession of a controlled substance and a 2013 order for
the state jail felony offense of theft. Appellant also testified at his punishment hearing.
During his testimony, he admitted selling Agent Lewis methamphetamine in November
2016; however, he denied that he had anything to do with any attempt to pass the
counterfeit money. He did admit he was a passenger in the suspect vehicle; however, he
denied any knowledge concerning the two syringes and claimed he was unaware of their
presence in the vehicle. He further admitted while some of the counterfeit money was in
his possession, it had been given to him as payment from a third party for mowing lawns
and trimming trees. He further denied having any involvement with the burglary where
one of the knives was allegedly stolen. As to the $450 forged check, Appellant claimed
that it was payment for a television set he had posted for sale on the Internet.
4
Appellant filed an application for probation and requested that the trial court
release him on conditions of community supervision. The State, on the other hand,
requested that the court sentence him to the maximum sentence of ten years in prison.
EXTRANEOUS OFFENSES—ISSUE ONE
By his first issue, Appellant contends he was harmed when the trial court admitted
and considered, during the punishment phase of his trial, evidence of extraneous offenses
not rationally attributable to him. Specifically, he complains about the admission of the
two knives, coin collections, and counterfeit money. As to the knives, he contends the
evidence is insufficient to “link” him to the knife that was reported stolen. He also
contends the coin collections should not have been admitted because there was no
evidence they had ever been reported stolen, and as to the counterfeit money, he
contends the “affirmative links” are insufficient because the contraband was not on his
person or subject to his exclusive possession at the time of its seizure.
An argument that evidence is not “rationally attributable” to a defendant, or that
evidence is not “linked” to an accused is distinguishable from an objection that evidence
is not relevant. Evidence is “relevant” if it has any tendency to make a fact more or less
probable than it would have been without that evidence, so long as the fact in question is
of consequence in determining the action. TEX. R. EVID. 401. The strength or weakness
of the evidence is not a matter of relevance if it meets that criteria. The fact that relevant
evidence may have weak or limited probative value is more appropriately the subject of
a Rule 403 objection. See TEX. R. EVID. 403 (providing that relevant evidence may be
excluded if its probative value is substantially outweighed by a danger of unfair prejudice,
5
issue confusion, potential for deception (misleading), undue delay, or needless
presentation of cumulative evidence).
At trial, Appellant objected to the relevance of the questioned evidence; however,
on appeal, he argues its weight and probative value. Because his arguments on appeal
do not comport with the objection he made at trial, he has failed to preserved error for
appellate review. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).
However, even if we were to construe Appellant’s objection at trial as
encompassing the arguments he makes on appeal, we would still not find a sufficient
basis for reversal because a trial court has “wide discretion to determine the admissibility
of evidence at the punishment phase.” Munguia v. State, No. 11-16-00048-CR, 2018
Tex. App. LEXIS 1084, at *3 (Tex. App.—Eastland Feb. 8, 2018, no pet.) (mem. op., not
designated for publication). This is because section 3(a)(1) of article 37.07 of the Texas
Code of Criminal Procedure provides as follows:
[r]egardless of the plea and whether the punishment be assessed by the
judge of the jury, evidence may be offered by the state and the defendant
as to any matter the court deems relevant to sentencing, including but not
limited to the prior criminal record of the defendant, his general reputation,
his character, an opinion regarding his character, the circumstances of the
offense for which he is being tried, and, notwithstanding Rules 404 and 405,
Texas Rules of Evidence, any other evidence of an extraneous crime or bad
act that is shown beyond a reasonable doubt by evidence to have been
committed by the defendant or for which he could be held criminally
responsible, regardless of whether he has previously been charged with or
finally convicted of the crime or act.
TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp. 2018).
Furthermore, as an appellate court, we review a trial court’s decision to admit or
exclude evidence under an abuse of discretion standard. Montgomery v. State, 810
6
S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). “Under an abuse of discretion
standard, an appellate court should not disturb the trial court’s decision if the ruling was
within the zone of reasonable disagreement.” Bigon v. State, 252 S.W.3d 360, 367 (Tex.
Crim. App. 2008). Under this broad standard, we cannot say the trial court abused its
discretion in admitting any evidence pertaining to the circumstances of Appellant’s arrest
(encompassing the knives, coin collections, and counterfeit money) or the extraneous
offense pertaining to the $450 forged check. Issue one is overruled.
PUNISHMENT ASSESSED—ISSUE TWO
By his second issue, Appellant contends the trial court abused its discretion by
sentencing him to penitentiary time rather than community supervision and rehabilitation.
In making this argument, Appellant does not claim any fundamental error exists with
respect to the sentence imposed. Instead, he merely contends that he has a drug
problem that would be better addressed by rehabilitation-centered community
supervision.
A trial court’s sentencing order is subject to review by an appellate court under an
abuse of discretion standard. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim.
App. 1984); Moore v. State, No. 11- 13-00050-CR, 2014 Tex. App. LEXIS 13318, at *5
(Tex. App.—Eastland Dec. 11, 2014, no pet.) (mem. op., not designated for publication).
As a general rule, a trial court’s sentence will not be disturbed if that sentence is within
the statutory range of punishment for the offense in question because such a sentence
complies with the objectives of the penal code. Jackson, 680 S.W.2d at 814.
7
Although Appellant accepted responsibility for the offense for which he entered a
plea of guilty, the evidence showed a high probability that he was associated with, if not
actively engaged in, other criminal activity. He also testified to his inability to theretofore
overcome his drug addiction, even though he had been subject to deferred adjudication
community supervision during the time he was suffering from that addiction. In addition,
the offense prosecuted was for the third degree felony offense of possession of a
controlled substance, whereas the evidence established that he had engaged in the
second degree felony offense of delivery of a controlled substance. Furthermore, as a
part of his open plea, the State agreed to dismiss two pending forgery cases and not
proceed to indictment on another charge of possession of a controlled substance in
conjunction with the two syringes found in the immediate vicinity of Appellant’s location in
the vehicle when it was searched. Under these circumstances, it cannot be said that the
trial court abused its discretion in assessing a period of confinement within the statutory
range of punishment in lieu of granting Appellant’s request for community supervision.
That being said, the trial court did abuse its discretion in accessing certain financial
obligations not properly a part of Appellant’s sentence. Immediately following the
punishment phase of trial and the arguments of counsel, the trial court orally pronounced
that Appellant be sentenced to “eight years confinement in the Texas Department of
Criminal Justice, a fine of $1,000 plus court costs, and attorney’s fees of [Appellant’s
court-appointed defense counsel] to be reimbursed to the County.” The final judgment,
however, ordered eight years confinement, a $1,000 fine, $423 in court costs, $1,800 in
attorney’s fees, $180 “restitution,” and $50 for a Crime Stoppers fee.
8
While the record reflects that at both the trial and appellate stages of this
proceeding the trial court found “[Appellant] does not meet the indigency standards of this
Court,” in both instances the trial court also found that it was in “the interest of justice” to
appoint counsel to represent Appellant. The judgment of the trial court attempts to assess
those fees against Appellant. In order to assess attorney's fees against a defendant
following conviction, a trial court must determine that the defendant has sufficient financial
resources that enable him to offset in whole or in part the costs of legal services provided.
TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2018). The trial court’s findings in
this case fall short of that requirement because a finding that one “does not meet the
indigency standards of this Court” is not the same as a finding that one has the present
ability to pay, in whole or in part, the sum assessed.4 Furthermore, because there is no
evidence of record demonstrating that Appellant’s present financial resources were
sufficient to meet that standard, the trial court erred in ordering the repayment of those
fees.5 See Mayer v. State, 309 S.W.3d 552, 556-57 (Tex. Crim. App. 2010) (trial court
judgment modified to delete unauthorized attorney’s fees and affirmed as modified).
4 In his Concurring and Dissenting Opinion, Chief Justice Quinn takes issue with this statement
based on what he determines to be an implicit finding that Appellant had some financial means or resources
with which to employ an attorney because, after committing Appellant to eight years of incarceration, the
trial court checked a paragraph on a printed form that ordered him to “report to the Office of Court
Collections and make payments . . . not to exceed $500.” Chief Justice Quinn then speculates that evidence
“most likely exists” and that “it was more likely than not that the trial court had evidence before it when
deciding whether appellant was indigent.” Irrespective of what we might speculate the evidence was, the
fact remains the trial court did not make a determination that Appellant had financial resources that enabled
him to offset in part or in whole the costs of the legal services provided.
5 The only evidence of record indicating Appellant’s ability to pay is his Application for Court
Appointed Attorney, where he declares “under penalty of perjury” that he receives no income and no public
assistance, is unemployed, is disabled, supports himself through the assistance of his mother, father, and
a friend, and owns only $300 in assets.
9
Accordingly, the judgment of the trial court is modified to delete any obligation to pay
attorney's fees.
The judgment also attempts to assess a $50 fee for Crime Stoppers. Section
133.102 of the local government code requires a person convicted of a felony to pay a
consolidated court cost of $133. TEX. LOC. GOV’T CODE ANN. § 133.102(a)(1) (West Supp.
2018). That statutory provision uses percentages to allocate the $133 cost to several
accounts and funds. § 133.102(e). Those accounts include funds for “crime stoppers
assistance” and “compensation to victims of crime.” § 133.102(e)(1), (e)(8). Because
section 133.102 assesses a percentage of the consolidated court costs to the
compensation of victims of crime, it is inappropriate to assess a separately-charged fee
to Crime Stoppers. See § 133.102(a)(1), (e)(1), (e)(8). See also Smith v. State, No. 02-
16-00412-CR, No. 02-16-00413-CR, 2017 Tex. App. LEXIS 4810, at *4-5 (Tex. App.—
Fort Worth May 25, 2017, pet. ref’d) (mem. op., not designated for publication); Aviles-
Barroso v. State, 477 S.W.3d 363, 398-99 (Tex. App.—Houston [14th Dist.] 2015, pet.
ref’d); Owen v. State, 252 S.W.3d 542, 548 n.10 (Tex. App.—Amarillo 2011, no pet.).
Accordingly, the judgment of the trial court is modified to delete any obligation to pay the
$50 Crime Stoppers fee.
Finally, the judgment attempts to assess a $180 fee for “restitution” to the Texas
Department of Public Safety Crime Laboratory, presumably for the cost of testing the
controlled substance the subject of the State’s prosecution. A trial court has no authority
to order a defendant to reimburse the Texas Department of Public Safety for lab fees as
a part of his sentence, and such fees are not properly the subject of a restitution order
under article 42.037(a) of the Texas Code of Criminal Procedure. See Aguilar v. State,
10
279 S.W.3d 350, 353 (Tex. App.—Austin 2007, no pet.). See also TEX. CODE CRIM. PROC.
ANN. art. 42.037(a) (West 2018). As such, the judgment of the trial court is further
modified to delete any obligation to pay $180 restitution.
In sum, issue two is sustained, in part, and the judgment of the trial court is
reformed to delete any obligation to pay attorney’s fees of $1,800, a Crime Stoppers fee
of $50, and restitution to the Texas Department of Public Safety Crime Laboratory of
$180. The trial court is ordered to prepare and file a Judgment Nunc Pro Tunc reflecting
these reformations and the trial court clerk is ordered to provide a copy of that judgment
to the Institutional Division of the Texas Department of Criminal Justice.
CONCLUSION
As reformed, the judgment of the trial court is affirmed.
Patrick A. Pirtle
Justice
Publish.
11