Tavia Anissa Hancock v. State of Texas ( 2002 )

NO. 07-01-0207-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B FEBRUARY 20, 2002

______________________________



TAVIA ANISSA HANCOCK, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE COUNTY COURT AT LAW NO. 2 OF POTTER COUNTY;

NO. 93,587; HONORABLE PAMELA C. SIRMON, JUDGE

_______________________________

Before BOYD, C.J., and QUINN and JOHNSON, JJ.

Appellant Tavia Anissa Hancock appeals from her conviction for theft. By four issues she urges that the evidence was legally and factually insufficient to support her conviction because the date on which the State proved the theft occurred was before the date alleged in the information, and the date alleged in the information was after the date the information was filed. We affirm.

On January 23, 2001, appellant was shopping at a J.C. Penney store. She took several articles of clothing which she had not purchased into a dressing booth. After she left the booth without carrying any of the articles of clothing, store employees checked the booth. No clothing was found.

On February 14, 2001, an information was filed charging appellant with theft. The information alleged that the theft took place on or about February 23, 2001. Appellant did not challenge either the date alleged in the information or any other aspect of the information by pretrial motion.

The case was tried to a jury. The State presented its case to the jury as involving the date of January 23, 2001. The proof was that the date of the theft was January 23, 2001. After the evidence was closed, appellant moved for a directed verdict based on the discrepancy between the date alleged in the information and the State's proof. The motion was denied. The jury charge included the date of January 23, 2001, as the date of the theft charged. The jury found appellant guilty.

Appellant's first and third issues, respectively, challenge the legal and factual sufficiency of the evidence to sustain her conviction because the State did not prove the alleged theft occurred on or about February 23, 2001. Her second and fourth issues challenge the legal sufficiency of the evidence to sustain a conviction where the date alleged in the information was a date subsequent to the date the information was filed.

Appellant does not challenge the form or substance of the information itself. Nor did she do so prior to trial. See Tex. Crim. Proc. Code Ann. art. 1.14.(b) (Vernon 2002). ⁽¹⁾ She does not challenge the evidentiary basis of her conviction, except for the discrepancy between the date alleged in the information and the proof at trial.

Appellant briefs and argues her four issues together because they address the same basic complaint. We, accordingly, will address the four issues together.

The rules with respect to allegations in an indictment and the certainty required in the indictment also apply to an information. CCP art. 21.23. And, the State is not bound by the date alleged in an indictment, so long as the date proved as the actual date of the crime is anterior to the date the indictment is filed and is not so remote that the crime is barred by limitations. See Sledge v. State, 953 S.W.2d 253, 256 (Tex.Crim.App. 1997); Glenn v. State, 436 S.W.2d 344, 346 (Tex.Crim.App. 1969). "On or about" language in an indictment allows the State to prove a date for the crime other than the date alleged in the indictment. See Sledge, 953 S.W.2d at 256.

In the matter before us, the affidavit underlying the information set out the date of the offense as January 23, 2001. The information alleged that "On or about the 23^rd day of February, 2001, . . . ." The State's proof was that the theft occurred on January 23, 2001. The jury was charged as to the date of January 23, 2001. The jury found appellant guilty based on such date.

The State was not required to prove the date of February 23, 2001, as the date on which the theft occurred, even though that was the date alleged in the information. See id. Thus, the issue of sufficiency of the evidence as to such date is immaterial to appellant's conviction. The State's proof supported appellant's conviction for theft on January 23, 2001, which was anterior to the date the information was filed. That is all that is required.

Regardless of whether the date alleged in the information was after the filing of the information or before the filing, the discrepancy between the date alleged in the information and the State's proof at trial did not affect appellant's substantial rights. See Tex. R. App. P. 44.2(b); Sledge, 953 S.W.2d at 256; Glenn, 436 S.W.2d at 346. Appellant's four issues are overruled. The judgment of the trial court is affirmed.

Phil Johnson

Justice

Do not publish.

1. Further references to the Code of Criminal Procedure will be as "CCP."

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NO. 07-10-00177-CV; 07-10-00178-CV; 07-10-00179-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

MAY 27, 2010

KENNETH GLENN WEBB, APPELLANT

v.

THE STATE OF TEXAS, APPELLEE

 FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

NO. 11,994-B, 18-617-B, 18-618-B; HONORABLE JOHN B. BOARD, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

OPINION ON ABATEMENT

            On February 25, 2010, in each referenced cause, pursuant to section 501.014(e) of the Texas Government Code, the trial court signed and entered an Order to Withdraw Inmate Funds.[1]  By the withdrawal notifications entered in each cause, the trial court directed the Texas Department of Criminal Justice, Institutional Division, to withhold from Webb’s inmate trust account the following amounts: (1) $3,071.25 in cause number 11,994-B; (2) $1,101.50 in cause number 18,617-B; and (3) $1,096.50 in cause number 18,618-B.  Webb filed pro se notices of appeal on April 26, 2010, challenging the withdrawal notifications.  While each withdrawal notification contained the statement that "court costs, fines and fees have been incurred as represented in the certified Bill of Cost/Judgment attached hereto," none contained an attachment of any kind.  Furthermore, while the judgment entered in cause number 11,994-B does include an order that the State recover "all costs," the judgments in cause numbers 18,617-B and 18,618-B are silent as to the assessment of costs. 

In Harrell v. State, 286 S.W.3d 315 (Tex. 2008), the Texas Supreme Court held that a withdrawal notification directing prison officials to withdraw money from an inmate trust account pursuant to section 501.014(e) is a civil matter akin to a garnishment action or an action to obtain a turnover order.  Id. at 317-19; see also Johnson v. Tenth Judicial District Court of Appeals at Waco, 280 S.W.3d 866, 869 (Tex.Crim.App. 2008) (holding that orders directing withdrawal of funds from inmate trust accounts are not a criminal matter).  In determining whether Harrell was accorded constitutional due process in that proceeding, the Court balanced three factors discussed in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L. Ed. 2d 18 (1976), and noted that Harrell had "already received some measure of due process." Harrell, 286 S.W.3d at 320.

            The three Eldridge factors considered in Harrell are: (1) the private interest affected by the official action, (2) the risk of an erroneous deprivation of such interests through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, and (3) the government's interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail.  Id. at 319-20 (citing Mathews, 424 U.S. at 335).  The Court found the private interest to be affected to be easily ascertainable by reference to the amount identified in a prior court document, which could be “stated with exactness” as "the costs assessed when the convicting court sentenced him."  Id. at 320.  Regarding the risk of erroneous deprivation, the Court identified the risk as modest where withdrawal notifications under the statute are based on an amount identified in a previous court document.  See Tex. Gov't Code Ann. § 501.014(e)(1)-(6) (Vernon Supp. 2009).  The Court noted that "Harrell was . . . notified of the costs assessed when the convicting court sentenced him" and he was free to contest them at the time they were assessed.  Harrell, 286 S.W.3d at 320.  However, the Court went on to recognize there could be a greater risk of erroneous deprivation in instances in which the amount in the withdrawal notification varied from the amount in the underlying judgment or those instances where there were clerical or other errors.  Id.  In assessing the final factor, the government's interest, the Court addressed the fiscal and administrative burdens of added or alternative procedures and concluded that the Texas Department of Criminal Justice would face expending more money than it would collect if it were required to conform to "full-blown" statutory garnishment requirements.  Id.  In the Court's opinion, such a drawn-out procedure might subvert the Legislature's goal of efficient cost-collection.  Id.

Harrell had been convicted of drug charges in 1997 and 2003.  In 2006, the convicting trial court signed an order authorizing the Texas Department of Criminal Justice, Institutional Division, to withdraw funds from his inmate trust account to pay for court costs and fees for appointed counsel. Harrell was provided with copies of the withdrawal notifications.  He then moved to rescind the withdrawal notifications alleging denial of due process. His motion was denied, and his direct appeal to this Court was dismissed for want of jurisdiction on the ground that no statutory mechanism was available for appealing a withdrawal notification.  See Harrell v. State, Nos. 07-06-0469-CR, 07-06-0470-CR, 2007 Tex.App. LEXIS 6416, at *3 (Tex.App.--Amarillo Aug. 13, 2007), rev'd, 286 S.W.3d 315 (Tex. 2008).

            In reversing this Court and rendering judgment affirming the trial court's Order Denying Harrell's Motion to Rescind, the Supreme Court held that due process entitles an inmate to receive notice^[2] and an opportunity to be heard, even though those requirements might be accorded the inmate after funds are withdrawn. Harrell, 286 S.W.3d at 321.  It concluded that because Harrell had received notice (a copy of the withdrawal notification) and an opportunity to be heard^[3] (the motion to rescind), he had received all that due process required.  Id.  The Court added, "[t]he Constitution does not require pre-withdrawal notice or a comprehensive civil garnishment proceeding."  Id.

             On the limited record before this Court, we are unable to determine if Webb has been given all that due process requires.  Specifically, we are unable to determine whether Webb has been (1) provided the necessary underlying documentation, and (2) afforded an adequate opportunity "to compare the amounts assessed by the trial court [in the underlying criminal proceedings] to the amount[s] withdrawn and alert the court of any alleged errors."  See id.  In that respect, we note that the "risk of an erroneous deprivation of [Webb's] interests through the procedures used" in this particular case is apparent on the face of the documents contained in the Clerk's Record.[4]  See id. at 320.

            If an appellate court is uncertain about the intent of an order to finally dispose of all claims, it can abate the appeal to permit clarification by the trial court.  See Tex. R. App. P. 27.2.  Because the trial court has not entered an appealable order either granting or denying a motion to confirm, modify, correct, or rescind the prior withdrawal notification, we find Webb's notices of appeal to be premature.  See Williams v. State, Nos. 07-10-0091-CV, 07-10-0100-CV, 07-10-0101, 2010 Tex.App. LEXIS, 2998, at *8-9, (Tex.App.--Amarillo April 22, 2010, no pet. h.). 

            Accordingly, this Court sua sponte abates this appeal for 180 days from the date of this order to allow Webb time to take such action as is necessary to (1) obtain the necessary documentation of the underlying court order; (2) compare the underlying court order to the withdrawal notification; (3) file an appropriate motion to modify, correct, or rescind the withdrawal notification; (4) present that motion to the trial court; (5) schedule any necessary hearing; and (6) obtain from the trial court a final appealable order addressing that motion.  See Tex. R. App. P. 27.2; see also Iacono v. Lyons, 6 S.W.3d 715 (Tex.App.--Houston [1st Dist.] 1999, no pet.) (finding appeal prematurely filed and abating and remanding to permit the jurisdictional defect to be cured).  All appellate timetables will begin to run from the date a final, appealable order is signed.

            It is so ordered.

                                                                                    Per Curiam

---

[1]This document is not an "order" in the traditional sense of a court order, judgment, or decree issued after notice and hearing in either a civil or criminal proceeding.  The controlling statute, Tex. Gov't Code Ann. § 501.014(e) (Vernon Supp. 2009), describes the process as a "notification by a court" directing prison officials to withdraw sums from an inmate's trust account, in accordance with a schedule of priorities set by the statute, for the payment of "any amount the inmate is ordered to pay by order of the court."  See id. at § 501.014(e)(1)-(6); see also Harrell v. State, 286 S.W.3d 315, 316, n.1 (Tex. 2009). This document is more akin to a judgment nisi.  A judgment nisi, commonly used in bond forfeiture proceedings, is a provisional judgment entered when an accused fails to appear for trial.  A judgment nisi triggers the issuance of a capias and it serves as notice of the institution of a bond forfeiture proceeding.  It is not final or absolute, but may become final.  See Safety Nat'l Cas. Corp. v. State, 273 S.W.3d 157, 163 (Tex.Crim.App. 2008).  Nisi means "unless," so a judgment nisi is valid unless a party takes action causing it to be withdrawn.  Id.  Similarly, a withdrawal notification issued pursuant to section 501.014(e), triggers a trust fund withdrawal, serves as notice of the collection proceeding, and continues to operate unless the inmate takes action causing the notification to be withdrawn.  Therefore, rather than refer to that document as an order, we prefer to use the term "withdrawal notification" to avoid confusion with an underlying court order or judgment ordering the payment of a sum falling within at least one of the six priority categories listed in the statute.

[2] In assessing the risk of erroneous deprivation of property, the Supreme Court, in Harrell, considered the risk to be "modest" because notice under the statute is "based on an amount identified in a prior court document."  Harrell, 286 S.W.3d at 320 (emphasis added).  The Court went on to comment that the risk would be minimized if the trial court included a copy of the underlying order or judgment that assessed costs when it issues a withdrawal notification.  We wholeheartedly adopt the Supreme Court's recommendation in this regard. 

We further note that the mere assessment of attorney fees does not make them collectable through this process.  Under article 26.05(g) of the Texas Code of Criminal Procedure, the trial court has authority to order reimbursement of appointed attorney fees only if the court makes a fact-specific determination that a defendant has financial resources that enable him to offset, in part or in whole, the costs of the legal services provided.  See Tex. Code Crim. Proc. Ann. art. 26.05(g) (Vernon Supp. 2009); see also Mayer v. State, No. PD-0069-09, 2010 Tex.Crim.App. LEXIS 100, at *11  (Tex.Crim.App. March 24, 2010).

[3] While the court of appeals's opinion is silent on whether a hearing was held on Harrell's motion to rescind, Harrell, 2007 Tex.App. LEXIS 6416, at *3, the trial court did enter a specific order denying his motion to rescind the withdrawal notification.  We read the Supreme Court's opinion as assuming that, by this process, Harrell was given "an opportunity to be heard."  Harrell, 286 S.W.3d at 321.

[4] In cause number 11,994-B the withdrawal order commands the Texas Department of Criminal Justice to withdraw $3,071.25, but the Bill of Costs shows the amount due as being $2,908.59.  The Bill of Costs also includes $350.00 for attorney's fees.  In cause number 18,617-B the withdrawal order was for the sum of $1,101.50, whereas the Bill of Costs reflected an amount due of $938.84, including $800.00 in attorney's fees. Finally, in cause number 18,618-B, the withdrawal order was for the sum of $1,096.50, whereas the Bill of Costs reflected an amount due of $1,072.63, including $800.00 in attorney's fees.