Micky Don Valverde v. the State of Texas

Opinion filed August 17, 2023
In The
Eleventh Court of Appeals
__________
Nos. 11-22-00351-CR & 11-22-00352-CR
__________
MICKY DON VALVERDE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 132nd District Court
Borden County, Texas
Trial Court Cause Nos. 243 & 248
MEMORANDUM OPINION
Appellant, Micky Don Valverde, pleaded guilty to the state jail felony offense
of burglary of a building (trial court cause no. 243) and the third-degree felony
offense of bail jumping and failure to appear (trial court cause no. 248). See TEX.
PENAL CODE ANN. § 30.02(c)(1) (West 2019), § 38.10(a), (f) (West 2016). Pursuant
to negotiated plea bargain agreements, the trial court accepted Appellant’s pleas of
guilty, found Appellant guilty of both offenses, and assessed Appellant’s punishment
for each offense at ten years’ imprisonment in the Institutional Division of the Texas
Department of Criminal Justice (TDCJ).1 However, the trial court suspended the
imposition of Appellant’s sentences and, for each offense, placed Appellant on
community supervision for a period of ten years.
The State filed a motion to revoke Appellant’s community supervision, and
subsequently filed an amended motion, in each cause. The parties proceeded to a
hearing on the motions before the trial court. Upon the conclusion of the hearing, in
each cause the trial court (1) found all allegations in the State’s amended motions to
be “true,” (2) revoked Appellant’s community supervision, and (3) sentenced
Appellant to ten years’ imprisonment in the Institutional Division of TDCJ. In
addition to the sentences it imposed, the trial court also ordered Appellant to pay the
attorney’s fees awarded to his court-appointed attorney for legal representation
associated with the revocation proceedings and restitution to the Borden County
Community Supervision and Corrections Department in the following amounts:
(1) $600 and $3,185, respectively, in trial court cause number 243; and (2) $600 and
$950, respectively, in trial court cause number 248.
Appellant presents two issues on appeal. In his first issue, Appellant asserts
that the trial court abused its discretion when it ordered Appellant to pay restitution
to the Borden County Community Supervision and Corrections Department in each
cause. In his second issue, Appellant asserts that the trial court erred when it
assessed and required him to pay the attorney’s fees awarded to his court-appointed
attorney. The State has filed a brief in each cause in which it concedes that Appellant
is correct on both contentions. We modify and affirm.
1
We note that Appellant’s sentence for the burglary-of-a-building offense was enhanced to a third-
degree punishment range because of two prior state jail felony convictions for which Appellant pleaded
“true” to each enhancement allegation. See PENAL § 12.425(a).
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I. Analysis
A. Restitution
Appellant asserts in his first issue that the trial court abused its discretion when
it ordered Appellant to pay the restitution amounts referenced above because the
Borden County Community Supervision and Corrections Department is not a
“victim” of either offense for which Appellant was convicted, and the assessed
amounts were not a direct result of either offense.
We review a challenge to a restitution order for an abuse of discretion.
Cartwright v. State, 605 S.W.2d 287, 288–89 (Tex. Crim. App. [Panel Op.] 1980).
Due process considerations are implicated if the trial court improperly orders
restitution. Burt v. State, 445 S.W.3d 752, 758 (Tex. Crim. App. 2014).
We first note that community supervision fees are not subject to a restitution
order. Hanna v. State, 426 S.W.3d 87, 91 (Tex. Crim. App. 2014). “[Restitution]
may be ordered only to a victim of an offense for which the defendant is charged.”
Id. (emphasis added); Goodman v. State, No. 11-21-00109-CR, 2021 WL 5830719,
at *2 (Tex. App.—Eastland Dec. 9, 2021, no pet.) (per curiam) (mem. op., not
designated for publication); Sheridan v. State, No. 11-19-00303-CR, 2020 WL
1887710, at *2 (Tex. App.—Eastland Apr. 16, 2020, no pet.) (per curiam) (mem.
op., not designated for publication); Sexton v. State, No. 11-18-00278-CR, 2019 WL
4316791, at *1 (Tex. App.—Eastland Sept. 12, 2019, pet. ref’d) (per curiam) (mem.
op., not designated for publication). Therefore, only a recognized “victim” may
receive restitution from a convicted defendant. In that regard, a trial court may order
a defendant who is convicted of an offense to pay restitution to either a victim of
that offense or to a crime victim’s assistance fund; however, a defendant may not be
ordered to pay restitution to an agency of the State of Texas such as a community
supervision department. Goodman, 2021 WL 5830719, at *2; see TEX. CODE CRIM.
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PROC. ANN. art. 42.037(a), (i) (West Supp. 2022); Hanna, 426 S.W.3d at 91, 94;
Sexton, 2019 WL 4316791, at *1.
Moreover, although a trial court may impose monthly community supervision
reimbursement fees against a defendant during the defendant’s period of community
supervision pursuant to Article 42A.652 of the Texas Code of Criminal Procedure,
a trial court may not order a defendant to pay delinquent community supervision fees
to a community supervision department after the defendant’s community
supervision has been revoked. Goodman, 2021 WL 5830719, at *2; Sheridan, 2020
WL 1887710, at *2.
Here, the “restitution” ordered by the trial court and assessed against
Appellant in each cause consisted of Appellant’s delinquent (1) community
supervision fees, (2) fine, (3) court costs, and (4) reimbursement fees. Because the
trial court, after it revoked Appellant’s community supervision, had no authority to
order Appellant to pay restitution for delinquent community supervision fees to the
Borden County Community Supervision Department in either cause, it abused its
discretion when it did so. See Goodman, 2021 WL 5830719, at *2; Sheridan, 2020
WL 1887710, at *2–3; Sexton, 2019 WL 4316791, at *1–2. Therefore, we must
modify the trial court’s judgments to delete the improper restitution assessments.2
Burt, 445 S.W.3d at 757–58. Accordingly, we sustain Appellant’s first issue in part.
B. Court-Appointed Attorney’s Fees
Appellant asserts in his second issue that the trial court erred when it ordered
Appellant to pay the attorney’s fees awarded to his court-appointed attorney for legal
representation associated with the revocation proceedings in the amount of $600 in
2
We note that the remaining “restitution” amounts described above—the fine, court costs, and
reimbursement fees—were assessed against Appellant when the trial court originally accepted Appellant’s
pleas of guilty and sentenced him in both causes, which Appellant did not appeal. As a result, Appellant
has waived any complaint concerning the assessment of these other costs that the trial court characterized
as “restitution” in its revocation judgments. See Riles v. State, 452 S.W.3d 333, 337 (Tex. Crim. App.
2015); Wiley v. State, 410 S.W.3d 313, 320–21 (Tex. Crim. App. 2013).
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each cause. Appellant contends that it was error for the trial court to order and assess
these court-appointed attorney’s fees against him because he was found to be
indigent at the outset and the record contains no evidence of any material change in
Appellant’s financial circumstances. Thus, it is presumed that Appellant remained
indigent until the trial court determined otherwise. We agree.
An indigent defendant cannot be taxed the cost of services rendered by his
court-appointed attorney unless the trial court finds that the defendant has the
financial resources to repay those costs in whole or in part. Smith v. State, 631
S.W.3d 484, 501 (Tex. App.—Eastland 2021, no pet.) (citing Mayer v. State, 309
S.W.3d 552, 556 (Tex. Crim. App. 2010)); see CRIM. PROC. art. 26.05(g); see also
CRIM. PROC. art. 42A.301(b)(10) (repayment of attorney’s fees as a condition of
community supervision). The Court of Criminal Appeals has held that the trial court
must find that the defendant had the ability to repay court-appointed attorney’s fees
prior to assessing such fees against an indigent defendant. Cates v. State, 402
S.W.3d 250, 251–52 (Tex. Crim. App. 2013); see also Mayer, 309 S.W.3d at 556(“[T]he 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 and fees.”). Further, a “defendant who is determined by the
[trial] court to be indigent is presumed to remain indigent for the remainder
of the proceedings in the case unless a material change in the defendant’s
financial circumstances occurs.” Cates, 402 S.W.3d at 251 (quoting CRIM. PROC.
art. 26.04(p)).
On May 5, 2022, Appellant signed a sworn Affidavit of Indigence and Request
for Appointment of Attorney in both causes certifying that he did not have the
necessary funds to hire an attorney to defend against the allegations in the State’s
motions to revoke. The trial court determined that Appellant was indigent and
appointed trial counsel to represent Appellant’s interests in the revocation
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proceedings. Subsequent to this appointment, the trial court did not receive
evidence, nor did it issue a finding, that Appellant had the ability to pay any portion
of the attorney’s fees that were awarded to his court-appointed attorney. Moreover,
nothing in the record indicates that (1) Appellant is no longer indigent or (2) the trial
court made a subsequent determination that Appellant’s financial circumstances had
materially changed or that he had the financial resources or ability to pay the court-
appointed attorney’s fees of $1,200 that were assessed against him for the revocation
proceedings. Because the trial court improperly assessed and ordered that Appellant
is financially responsible for the payment of the attorney’s fees awarded to his court-
appointed attorney for legal representation associated with the revocation
proceedings, we must modify the trial court’s judgments and the district clerk’s bills
of costs in both causes to remove the improperly assessed fees. See Cates, 402
S.W.3d at 252; Smith, 631 S.W.3d at 501. Accordingly, we sustain Appellant’s
second issue.
C. Errors in the Judgments
Although not expressly raised, Appellant alludes, and we note, that the trial
court’s judgments contain nonreversible errors. We have the authority to modify
and reform the trial court’s judgments to make the judgments speak the truth when
we have the necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v.
State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); French v. State, 830 S.W.2d
607, 609 (Tex. Crim. App. 1992).
In both judgments, the first allegation raised by the State in its amended
motions to revoke, to which the trial court found to be “true,” is omitted. The
judgment in trial court cause number 243 incorrectly recites the monthly installment
amount that Appellant was ordered to pay to the Borden County Community
Supervision and Corrections Department during his period of community
supervision. Further, the judgments in both causes recite the incorrect date that
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Appellant committed the violation that is referred to in the seventh allegation of the
State’s amended motion to revoke in trial court cause number 243 and the sixth
allegation of the State’s amended motion to revoke in trial court cause number 248.
Therefore, we must modify the trial court’s judgments to correct these errors.
II. This Court’s Ruling
We modify the trial court’s judgment and the district clerk’s bill of costs in
trial court cause number 243 to delete (1) the restitution of $720 for reimbursement
of community supervision service fees that were ordered payable to the Borden
County Community Supervision and Corrections Department and (2) the court-
appointed attorney’s fees of $600 that were ordered and assessed against Appellant
for legal representation associated with the revocation proceeding in that cause. We
further modify the judgment and bill of costs to properly characterize the remaining
“restitution” designated by the trial court in its revocation judgment as the
outstanding $1,500 fine, $675 in reimbursement fees, and $290 in court costs that
the trial court assessed against Appellant during Appellant’s original guilty plea
proceeding.
We modify the trial court’s judgment and the district clerk’s bill of costs in
trial court cause number 248 to delete (1) the assertion that restitution is payable to
the Borden County Community Supervision and Corrections Department and (2) the
court-appointed attorney’s fees of $600 that were ordered and assessed against
Appellant for legal representation associated with the revocation proceeding in that
cause. We further modify the judgment and bill of costs to properly characterize the
remaining “restitution” designated by the trial court in its revocation judgment as the
outstanding $660 in reimbursement fees and $290 in court costs that the trial court
assessed against Appellant during Appellant’s original guilty plea proceeding.
We modify the trial court’s judgments in both causes (1) to include the first
allegation raised in the State’s amended motions to revoke which states that “on or
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about January 9, 2022, in Callahan County, Texas, [Micky Don Valverde] did then
and there intentionally or knowingly possess a controlled substance, namely,
methamphetamine, in the amount of one gram or more but less than four grams” and
(2) to recite the correct date—February 17, 2022—that Appellant committed the
violation that is referred to in the seventh allegation of the State’s amended motion
to revoke in trial court cause number 243 and the sixth allegation of the State’s
amended motion to revoke in trial court cause number 248.
Finally, we modify the trial court’s judgment in trial court cause number 243
to recite the correct monthly installment amount—$40 per month—that Appellant
was ordered to pay to the Borden County Community Supervision and Corrections
Department during his period of community supervision.
As modified, we affirm the judgments of the trial court. See TEX. R. APP. P.
43.2(b).
W. STACY TROTTER
JUSTICE
August 17, 2023
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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