Michael Kenneth Lawrence v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00021-CR
MICHAEL KENNETH LAWRENCE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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OPINION
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Michael Kenneth Lawrence appeals from the revocation of his deferred
adjudication community supervision. Appellant asserts in five issues that (1) the
trial court abused its discretion by granting the State’s petition to proceed to
adjudication, (2) the trial court abused its discretion by assessing a maximum
term of confinement for a minor violation of community supervision, (3) there is
no evidence to support the trial court’s inclusion of appointed attorney’s fees in
the judgment, (4) this court should reform the judgment to delete a duplicate
appointed attorney’s fees award included as “reparations,” and (5) this court
should reform the judgment to delete the court costs also included in the amount
listed as “reparations.” We modify the judgment to delete the requirement that
appellant repay his court-appointed attorney’s fees, standing alone and as part of
reparations, and we affirm the remainder of the judgment as modified.
Procedural Background
Appellant pled guilty, pursuant to a plea bargain, to the offense of injury to
a child and was placed on ten years’ deferred adjudication community
supervision. The State subsequently filed a petition to proceed to adjudication,
claiming that appellant had violated the terms of his community supervision by,
among other things, failing to complete the total number of hours of community
service as ordered by the trial court. Although appellant pled not true to this
allegation, the trial court found it to be true.
Propriety of Adjudication and Sentence
In his first two issues, appellant contends that the trial court abused its
discretion by granting the State’s petition to proceed to adjudication and by
assessing a maximum term of confinement for a minor violation of community
supervision.
2
Trial Court Did Not Abuse Its Discretion By Adjudicating Guilt
Standard of Review
The decision to proceed to an adjudication of guilt and revoke deferred
adjudication community supervision is reviewable in the same manner as a
revocation of ordinary community supervision. Tex. Code Crim. Proc. Ann. art.
42.12, § 5(b) (West Supp. 2013); Cantu v. State, 339 S.W.3d 688, 691 (Tex.
App.—Fort Worth 2011, no pet.). We review an order revoking community
supervision under an abuse of discretion standard. Rickels v. State, 202 S.W.3d
759, 763 (Tex. Crim. App. 2006); Cardona v. State, 665 S.W.2d 492, 493 (Tex.
Crim. App. 1984). In a revocation proceeding, the State must prove by a
preponderance of the evidence that the defendant violated at least one of the
terms and conditions of community supervision. Cobb v. State, 851 S.W.2d 871,
873–74 (Tex. Crim. App. 1993). The trial court is the sole judge of the credibility
of the witnesses and the weight to be given their testimony, and we review the
evidence in the light most favorable to the trial court’s ruling. Cardona, 665
S.W.2d at 493; Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel
Op.] 1981). If the State fails to meet its burden of proof, the trial court abuses its
discretion in revoking the community supervision. Cardona, 665 S.W.2d at 493–
94.
Evidence Sufficient to Prove Community Service Not Completed
Appellant contends that the trial court abused its discretion by finding that
he failed to perform all of the required hours of community service because he
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did complete some and there was no evidence regarding the number of hours he
had actually completed. Although appellant concedes that it is undisputed that
he failed to complete at least ten hours of service per month, he argues that the
State alleged only that he “failed to complete the total number of hours as
ordered” by the trial court. Appellant also contends there was no evidence that
his supervision officer or the trial court ever directed him to perform the
community service.
The trial court signed conditions of community supervision on August 20,
2010, which included the following: “Complete 160 hours of community service
restitution at the rate of no fewer than 10 hours per month as directed by the
court or supervision officer.” The State alleged in its petition to adjudicate that
“[i]n violation of this condition, [appellant] failed to complete the total number of
hours as ordered by the [c]ourt.” This allegation can be fairly read as alleging
that appellant failed to complete 160 hours and that he also failed to complete at
least ten hours per month “as ordered by” the trial court. See Garner v. State,
545 S.W.2d 178, 179 (Tex. Crim. App. 1977) (holding that allegations in motion
to revoke must fully and clearly set forth the alleged violations of the community
supervision “so that the defendant and his counsel might be informed as to that
upon which he will be called to defend”).
Nothing in the condition itself indicates that the modifying phrase “as
directed by the court or supervision officer” was intended to limit the immediately
preceding phrase, “no fewer than 10 hours per month”; instead, a logical reading
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of the condition in its entirety indicates that appellant was expected to perform no
less than ten hours each month and that those ten hours would also need to be
completed at the direction of the court or supervision officer. In other words,
appellant did not have complete discretion to complete the ten hours in any
manner he wished. The phrase does not indicate, as appellant argues, that he
was required to complete ten hours of community service per month only if the
court or supervision officer gave him further directions to do so. See Greathouse
v. State, 33 S.W.3d 455, 459 (Tex. App.––Houston [1st Dist.] 2000, pet. ref’d)
(“[C]onditions of probation must be ‘clear, explicit, and unambiguous so that the
probationer understands what is expected of him.’”).
At the hearing on the petition to adjudicate in January 2013, appellant’s
supervision officer testified that he had not completed the total hours ordered and
that he had not completed at least ten hours per month. She also testified that
appellant had completed some community service hours, but she did not know
the exact amount. The trial judge was entitled to believe this testimony to mean
that appellant violated this condition of his community supervision in both of the
ways alleged by the State.
Counsel for appellant argued that “there’s no testimony as to how much he
did or he did not do in community service.” But if appellant had completed at
least ten hours of community service monthly beginning in September 2010––the
first full month of his community supervision, he would have completed his total
hours no later than December 2011. We conclude and hold that the trial court
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did not abuse its discretion by finding that appellant violated at least one term of
his community supervision and adjudicating him guilty. We overrule his first
issue.
Sentence Is Not Excessive
The State contends that appellant failed to preserve his complaint about
his sentence. Appellant filed a pro se motion for new trial, in which he contended
that his sentence was excessive in comparison to the alleged violations.
Although the State contends that nothing in the record indicates that the motion
was ever presented to the trial judge, the motion itself has the following
handwritten notation at the top, “Copy to S & D,” with the trial judge’s initials and
the date following. The docket sheet contains a stamped entry stating that the
motion for new trial was filed and sent to the State and court of appeals. We
conclude and hold that the motion was presented to the trial judge, who could
have decided to let it be overruled by operation of law. See Tex. R. App. P.
21.8(a); Gardner v. State, 306 S.W.3d 274, 305 (Tex. Crim. App. 2009) (“The
Rules of Appellate Procedure . . . require some documentary evidence or
notation that the trial judge personally received a copy of the motion and could
therefore decide whether to set a hearing or otherwise rule upon it.”), cert.
denied, 131 S. Ct. 103 (2010); cf. Stokes v. State, 277 S.W.3d 20, 24–25 (Tex.
Crim. App. 2009) (holding that unsigned notation on docket sheet that motion for
new trial was presented to judge, who did not rule on it, was sufficient to show
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presentment under rule 21.6). 1 Accordingly, we will address the merits of
appellant’s complaint.
Generally, punishment assessed within the permitted statutory range is not
subject to a challenge for excessiveness. Kim v. State, 283 S.W.3d 473, 475–76
(Tex. App.––Fort Worth 2009, pet. ref’d); see also Ewing v. California, 538 U.S.
11, 20–21, 123 S. Ct. 1179, 1185 (2003) (recognizing that Eighth Amendment’s
“narrow proportionality principle” applies to noncapital sentences in “exceedingly
rare” cases). A sentence may, however, violate the Eighth Amendment if it is
grossly disproportionate to the offense committed. Solem v. Helm, 463 U.S. 277,
288, 290, 103 S. Ct. 3001, 3008–09 (1983). Our first inquiry, then, is to compare
the gravity of the offense committed with the severity of the sentence. Id. at 290–
91, 103 S. Ct. at 3010.
Appellant urges us to compare his sentence to the gravity of the alleged
violation of his community supervision. But when deferred adjudication
community supervision is revoked, the trial court may generally impose any
punishment within the range authorized by statute. Von Schounmacher v. State,
5 S.W.3d 221, 223 (Tex. Crim. App. 1999). Thus, when reviewing excessiveness
in a case in which the trial court has adjudicated guilt based upon the violation of
deferred adjudication community supervision, we do not weigh the sentence
1
Moreover, after the trial court had adjudicated appellant guilty but before it
had assessed his sentence, appellant’s counsel argued that “it seems unfair to
give him a maximum sentence for a violation of community service . . . . So I
would ask the Court to sentence him at the low end of the term.”
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against the gravity of the violations of the community supervision, but rather the
gravity of the initial offense to which the appellant pled guilty. See Atchison v.
State, 124 S.W.3d 755, 759–60 (Tex. App.––Austin 2003, pet. ref’d).
The record shows that appellant admitted to his counselor that he
committed the offense to which he pled guilty––injuring a child under the age of
fourteen by sexually assaulting that child four times over a two-month period.
The sentence does not outweigh the gravity of the offense to which he originally
pled guilty. We overrule appellant’s second issue.
Fees and Costs Awarded in Judgment
Appellant complains in his third through fifth issues about the judgment’s
imposition against him of (1) $14,475 in attorney’s fees, (2) “reparations” of
$17,897, which also includes the same $14,475 in attorney’s fees, and (3) court
costs of $295. The State contends that appellant has forfeited his right to
complain about the attorney’s fees and $270 of the court costs by waiving his
right to appeal the original order placing him on deferred adjudication community
supervision.
Complaint About $270 in Court Costs, But Not Attorney’s Fees, Forfeited
Appellant contends that the evidence is insufficient to support the
appointed attorney’s fees and court costs imposed against him in the judgment
revoking his deferred adjudication community supervision. The court of criminal
appeals has held that a sufficiency challenge to attorney’s fees need not be
preserved at trial. Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010).
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However, it has also held that a defendant who plea bargained for deferred
adjudication community supervision, knowingly and voluntarily waived his right to
appeal, and signed a judgment that included a special finding requiring him to
pay attorney’s fees of $400 could not challenge, in a subsequent revocation
proceeding, the sufficiency of the $400 attorney’s fees included in the original,
plea-bargained judgment. Wiley v. State, 410 S.W.3d 313, 319–21 (Tex. Crim.
App. 2013) (holding that challenge to sufficiency of attorney’s fees awarded in
plea-bargained judgment placing defendant on straight probation was precluded
in appeal of subsequent judgment revoking probation); see also Manuel v. State,
994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999) (holding that “a defendant
placed on deferred adjudication community supervision may raise issues relating
to the original plea proceeding, such as evidentiary sufficiency, only in appeals
taken when deferred adjudication community supervision is first imposed”).
Here, the original judgment placing appellant on deferred adjudication
community supervision included court costs of $270 and “APPOINTED
ATTORNEY FEES TO BE DETERMINED.” As part of the plea bargain,
appellant waived the right to appeal that judgment. Accordingly, he is precluded
from now challenging the $270 in court costs awarded in that judgment. See,
e.g., Wiley, 410 S.W.3d at 319–21; Manuel, 994 S.W.2d at 661–62; Lewis v.
State, Nos. 02-12-00088-CR, 02-12-00089-CR, 2013 WL 6115134, at *7 (Tex.
App.––Fort Worth Nov. 21, 2013, no pet. h.) (“Because the record shows that
Appellant knew at the time he was placed on community supervision that he
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would be required to repay the $725.00 in attorney fees that had accrued and
nonetheless expressly waived his right to appeal, we are constrained by Wiley to
hold that Appellant has forfeited this part of his claim for review.”).
But nowhere in that same judgment is an amount of appointed attorney’s
fees listed. In addition, the written plea admonishments do not mention
attorney’s fees. The conditions of community supervision, which were signed
four days before the judgment and which were incorporated into it by reference,
required appellant to pay to the District Clerk of Tarrant County “ATTORNEY
FEES in the amount of $ (to be determined).” A certificate of proceedings––
signed by the presiding trial judge 2 and dated September 8, 2010, fifteen days
after that same judge signed the order deferring adjudication––notes, “9-8-10
court update – defn to pay $13,425.00 for appt atty fees, payable to dclk.”
However, nothing in the record indicates that appellant agreed to this amount,
was able to pay this amount, or was even aware that he was required to pay this
amount. 3 There are no supplemental conditions of community supervision
requiring him to pay this amount.
With respect to appointed attorney’s fees, then, this case is factually
distinguishable from Wiley and this court’s recent opinion in Lewis. Nothing
2
A visiting trial judge presided over the plea proceeding.
3
According to documents in the record, appellant paid only $213 of a fine
imposed in the original judgment and an $8 transaction fee between the time he
was placed on community supervision and the time the trial court revoked it and
adjudicated him guilty.
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indicates that part of appellant’s agreement with the State was that he would
repay appointed attorney’s fees to the county. The order imposing fees “to be
determined” was not signed by the trial judge until several days after appellant
pled guilty and signed conditions of supervision. At the time the trial court signed
the order deferring adjudication, there was nothing for appellant to challenge with
respect to attorney’s fees and, therefore, nothing for him to knowingly and
intelligently waive. See Ex parte Delaney, 207 S.W.3d 794, 797 (Tex. Crim. App.
2006); cf. Houston v. State, 410 S.W.3d 475, 479 (Tex. App.––Fort Worth 2013,
no pet.) (noting that article 103.001 of the code of criminal procedure provides
that court costs are “not payable . . . until a written bill of costs is produced or
ready to be produced”). But cf. Riles v. State, No. 07-12-00386-CR, 2013 WL
5568716, at *1–3 (Tex. App.––Amarillo Oct. 7, 2013, no pet. h.) (following Wiley
when the appellant had agreed to repay attorney’s fees as part of plea bargain
and those fees were incorporated into judgment deferring adjudication by
reference to attached bill of costs); Jackson v. State, No. 02-09-00258-CR, 2010
WL 5186811, at *2–5 (Tex. App.––Fort Worth Dec. 23, 2010, no pet.) (op. on
PDR) (mem. op., not designated for publication) (holding same pre-Wiley).
Here, the bill of costs was not produced by the district clerk until
August 30, 2013. 4 Nothing in the record indicates that appellant could have
4
The court of criminal appeals has held that a judgment that assessed
court costs––and included a category of “APPOINTED ATTORNEY” but did not
list an amount of attorney’s fees to be paid––was subject to challenge in a
postconviction writ proceeding that the court construed as a mandamus when,
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knowingly and intelligently waived his right to appeal the amount of attorney’s
fees until then. See Tex. Code Crim. Proc. Ann. art. 103.001 (West 2006);
Armstrong v. State, 340 S.W.3d 759, 765–67 (Tex. Crim. App. 2011) (comparing
attorney’s fees to court costs); cf. Ex parte Reedy, 282 S.W.3d 492, 498 (Tex.
Crim. App. 2009) (holding that defendant did not knowingly and intelligently
waive his right to postconviction habeas relief on a claim of ineffective assistance
and summarizing its prior waiver holdings as follows: “Thus, . . . a defendant
may waive his right to appeal, but . . . his waiver will be knowingly and
intelligently made only under circumstances in which, and to the extent that, he is
aware of what has occurred in the trial proceedings. Only then is he in a position
to know the nature of the claims he could have brought on appeal but for his
waiver.” (emphasis added)).
Accordingly, we conclude and hold that appellant did not forfeit this issue
for appellate review by entering into the plea bargain and waiving his right to
appeal the order deferring adjudication. Therefore, he may now challenge the
sufficiency of those fees on appeal. See Mayer, 309 S.W.3d at 556. Because
the State has conceded that the evidence is not sufficient to support the inclusion
of appointed attorney’s fees in the judgment, we sustain appellant’s third issue.
nine years later, the clerk issued a bill of costs that included $7,945 in appointed
attorney’s fees. In re Daniel, 396 S.W.3d 545, 549 & n.19 (Tex. Crim. App.
2013); see also Ex parte Knight, 401 S.W.3d 60, 66 (Tex. Crim. App. 2013)
(providing that when plea-bargained, and therefore unappealable, judgment
ordered applicant to pay items in bill of costs, which was not issued until day after
judgment signed, applicant could seek mandamus relief from court of appeals as
to propriety and sufficiency of amount of attorney’s fees included in bill of costs).
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See Tex. Code Crim. Proc. Ann. art. 26.05(f)–(g) (West Supp. 2013) (requiring
trial judge to order convicted defendant to pay appointed attorney’s fees “as court
costs” in whatever amount the trial judge determines the defendant has financial
resources to pay); Mayer v. State, 274 S.W.3d 898, 901–02 (Tex. App.––Amarillo
2008) (holding record must affirmatively show that appellant had sufficient
financial resources to offset appointed attorney’s fees for those fees to be
included as costs in judgment), aff’d, 309 S.W.3d at 558. In addition, because
the State also concedes that the attorney’s fees amount was also duplicatively
included in the reparations award, we sustain appellant’s fourth issue.
Evidence Sufficient to Support Additional $25 in Court Costs
We are thus left with appellant’s preserved complaint about the additional
$25 in court costs imposed in the post-adjudication judgment of conviction.
Appellant contends that the bill of costs contained in a supplemental clerk’s
record is defective because it has only a typed name in its certification and not a
handwritten signature, it fails to meaningfully explain what the costs are for, the
line-item costs themselves are not dated and nothing shows that the trial judge
ever saw them, and the bill fails to identify to whom the costs are owed.
Article 103.001 of the code of criminal procedure provides, “A cost is not
payable by the person charged with the cost until a written bill is produced or is
ready to be produced, containing the items of cost, signed by the officer who
charged the cost or the officer who is entitled to receive payment for the cost.”
Tex. Code Crim. Proc. Ann. art. 103.001. Here, the bill of costs included in a
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supplemental clerk’s record contains the district clerk’s certification stamp, which
is sufficient. Ramirez v. State, 410 S.W.3d 359, 364 (Tex. App.––Houston [1st
Dist.] 2013, no pet.); see also Paulus v. State, 633 S.W.2d 827, 849–50 (Tex.
Crim. App. [Panel Op.] 1981) (noting that the court had previously upheld “[t]he
use of a stamp producing a facsimile of an original signature in signing legal
documents).
Additionally, although appellant contends that the itemized list of costs is
“meaningful only to those fluent in district court speak,” a review of the applicable
statutes requiring the clerk to impose the fees renders their purposes easily
ascertainable. See Tex. Code Crim. Proc. Ann. art. 102.0045 (West Supp. 2013)
(requiring clerk to collect $4 jury service fee from convicted person), art. 102.005
(West 2006) (requiring convicted defendant to pay $40 for a clerk’s fee, plus
$22.50 to county records management and preservation fund and $2.50 to
clerk’s records management and preservation fund), art. 102.011 (West Supp.
2013) (requiring convicted defendant to pay $50 for the execution or processing
of a warrant or capias and $5 for a peace officer’s either issuing a written notice
to appear in court, summoning a witness, effecting commitment or release, or
summoning a jury), art. 102.017 (West Supp. 2013) (requiring convicted
defendant to pay a $5 security fee); Tex. Loc. Gov’t Code Ann. § 133.102(a)(1)
(West Supp. 2013) (requiring defendant to pay $133 for a felony conviction),
§ 133.105 (West 2008) (requiring person convicted of offense to pay $6 for
support of the judiciary), § 133.107 (West Supp. 2013) (requiring convicted
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person to pay $2 for indigent defense fund). These fees correspond to the
descriptions, however brief and abbreviated, in the bill of costs and total $270. It
can be deduced as well that the additional $25 entry for “Time Payment” was
included in accordance with section 133.103(a) of the local government code,
which provides that a person convicted of a felony, who does not pay court costs
imposed within thirty days of the date the judgment is entered, should be charged
a fee of $25. See Tex. Loc. Gov’t Code Ann. § 133.103(a) (West Supp. 2013).
The record amply supports the conclusion that appellant failed to pay any of the
$270 in court costs imposed in the original judgment.
Moreover, appellant’s argument that there is no evidence the trial judge
saw the bill of costs before it was issued is not well-taken as it relies on an
opinion in which a signed bill of costs had not been issued. See Houston, 410
S.W.3d at 479 & n.3 (noting that the document produced in Johnson v. State,
389 S.W.3d 513, 515 (Tex. App.––Houston [14th Dist.] 2012, pet. granted), was
not a bill of costs complying with section 103.001, but rather an unsigned
computer screen printout).
Accordingly, we overrule appellant’s fifth issue challenging the court costs
imposed in the judgment revoking his deferred adjudication community
supervision.
Conclusion
Having sustained appellant’s third and fourth issues, we modify the
judgment to delete the following language on the second page in its entirety:
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“APPOINTED ATTORNEY FEES IN THE AMOUNT OF $14,475.00 PAYABLE
TO AND THROUGH THE DISTRICT CLERK’S OFFICE OF TARRANT
COUNTY, TX ORDERED AS A CONDITION OF PAROLE UNDER ARTICLE
26.05(g) T.C.C.P.” We also modify the judgment to reduce the amount of
reparations to “$3,422.00.” 5 We affirm the remainder of the judgment as
modified.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.
PUBLISH
DELIVERED: January 2, 2014
5
Appellant has not challenged the remaining amounts included in the trial
court’s judgment as “reparations”: $1,569 in “probation fees,” $1,066 “due to
CSCD,” and $787 remaining unpaid of the $1,000 fine imposed in the judgment
deferring adjudication.
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