Mercer, Melissa Ann

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1711-13
MELISSA ANN MERCER, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRTEENTH COURT OF APPEALS
BEE COUNTY
H ERVEY, J., delivered the opinion of the Court in which K ELLER, P.J.,
J OHNSON, K EASLER, A LCALA, R ICHARDSON, Y EARY, N EWELL, JJ., joined. J OHNSON,
J., filed a concurring opinion. A LCALA, J., filed a concurring opinion. M EYERS, J.,
did not participate.
OPINION
Here we are asked to consider whether a defendant on community supervision for
a state-jail felony may be required to reimburse a county for the cost of her incarceration
in county jail as a condition of her community supervision. However, because we
conclude the court of appeals incorrectly analyzed the relevant issue in this case, we
vacate the judgment of the court of appeals and remand this cause for reconsideration in
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light of this opinion.
B ACKGROUND
Appellant, Melissa Ann Mercer, pled guilty to debit-card abuse and was placed on
community supervision for five years. On numerous occasions, the trial court amended
Appellant’s conditions of community supervision sua sponte and without a hearing.
However, Appellant signed each order amending the conditions of her community
supervision.
Later, the trial court held a hearing with Appellant, defense counsel, and the
prosecutor present, revoked Appellant’s community supervision, and sentenced her to two
years’ confinement. The judge also ordered her to pay the costs she had failed to pay as
conditions of her community supervision, including payment of her outstanding fine,
court costs, and reimbursement1 for costs of her confinement in county jail while she was
on community supervision. At the revocation hearing, Appellant stipulated to evidence
proffered by the State and pled true to all alleged violations of her conditions of
community supervision, including failing to pay her fine, court costs, and reimbursement
as ordered as conditions of her community supervision.2 Appellant did not object at the
1
The trial court used the term “restitution.” We shall use the term “reimbursement,” as the
court of appeals did through all but the conclusion of its opinion, because the Texas Code of
Criminal Procedure article dealing with confinement expenses is styled, “Reimbursement for
Confinement Expenses.” TEX . CODE CRIM . PROC. art. 42.038.
2
On February 12, 2013, Appellant signed a stipulation of evidence in which she judicially
confessed to all 24 of the allegations contained in an attached affidavit sworn to by Grace Garcia,
although the State later abandoned allegations 5 and 10 through 13. Among the numerous other
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hearing.3
Appellant appealed, challenging the assessment of $160 for the costs of her
confinement in the county jail. The court of appeals granted Appellant relief, holding that
the trial court did not have the express authority, under Article 42.12 of the Texas Code of
Criminal Procedure, to order Appellant to reimburse the costs of her confinement as a
condition of community supervision. The court’s remedy was to strike the reimbursement
amount ordered to be paid (as part of Appellant’s sentence) after the judge revoked
Appellant’s community supervision. See Mercer v. State, No. 13-13-00150-CR, 2013 WL
6055271, at *2 (Tex. App.—Corpus Christi Nov. 14, 2013) (mem. op.) (not designated
for publication). We granted the State Prosecuting Attorney’s petition for review on the
following grounds:
1. Is a challenge to a community supervision condition, imposed in a
modification order entered without a hearing, forfeited on appeal from
revocation when the probationer was served with the modification order and
could have timely objected in the trial court but failed to do so?
2. On appeal from revocation, did Appellant forfeit her challenge to the
imposition of incarceration reimbursement costs as a supervision condition
by failing to object when the judge included the outstanding costs in the
allegations of violations of her conditions of community supervision, Appellant admitted that she
had failed to pay the assessed costs and fines.
3
When the judge revoked Appellant’s community supervision and sentenced her, he
stated in part,
Her community supervision will be revoked, the original sentence imposed, two
years in a state jail with the balance of the unpaid fine, fees, costs and restitution,
if it can be collected, on a state jail case, which I don’t think it really can be.
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revocation judgment?
3. Is the community supervision condition for misdemeanor offenses that
authorizes reimbursement costs for confinement as a supervision condition
properly imposed in a state jail felony case when, by statute, a judge can
impose any condition authorized for a non-state jail felony offense?
D ISCUSSION
The issue has been presented as one of whether ordering reimbursement for costs
of confinement is a valid condition of community supervision in non-misdemeanor cases.
After reviewing the record, we conclude that the issue is not whether the court had the
authority to impose reimbursement as a condition of Appellant’s community supervision,
but rather whether the judge had the authority to order Appellant after revocation, as part
of her sentence, to pay the balance of her fine, costs, and reimbursement.4
Because the court of appeals granted Appellant relief on an erroneous basis, we
vacate the judgment of the court of appeals and remand this cause to the court of appeals
for further proceedings. Furthermore, we note that the State argued at the court of
4
This fact was essentially acknowledged by Appellant’s court-of-appeals counsel when he
stated,
The restitution payments ordered in this case are not made ‘as a condition of’
[community supervision] because the trial court [] removed Appellant from
[community supervision] and ordered Appellant’s sentence executed. Therefore,
article 42.12 cannot serve as a basis to order restitution in this executed sentence
even if the general language of 42.12 could authorize those payments as a
condition of [community supervision].
Appellant’s Brief at 8, Mercer v. State, 2013 WL 6055271 (Tex. App.—Corpus Christi Nov. 14,
2013) (No. 13–13–00150–CR) (record citation omitted).
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appeals, and in its brief to this Court, that Appellant failed to preserve any complaint for
appellate review because she did not object at the revocation hearing despite having an
opportunity to do so. Also, for the first time, Appellant argues that there was an
insufficient basis to order repayment of costs in this case because Appellant is indigent,
and that her argument may be raised for the first time on appeal. On remand, the court of
appeals should address preservation of error and any other properly presented issues that
necessarily must be addressed to resolve Appellant’s appeal.
Hervey, J.
Delivered: January 14, 2015
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