Matthew Lee Lacey v. State ( 2016 )

Opinion filed April 29, 2016
In The
Eleventh Court of Appeals
__________
No. 11-14-00144-CV
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MATTHEW LEE LACEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 104th District Court
Taylor County, Texas
Trial Court Cause No. 15182-B
MEMORANDUM OPINION
On May 27, 2005, the jury found Matthew Lee Lacey guilty of the offense of
burglary of a habitation with intent to commit theft. Appellant elected to have the
trial court assess punishment, and on July 5, 2005, the trial court assessed
punishment at confinement for a term of eight years and a fine of $500. The trial
court suspended the imposition of the confinement portion of the sentence and
placed Appellant on community supervision for a term of eight years.
On August 17, 2011, after the State had filed numerous motions to revoke
Appellant’s community supervision, the trial court ultimately entered a judgment by
which it revoked Appellant’s community supervision and sentenced him to
confinement for six years.1 On August 19, 2011, the trial court issued an “Order to
Withdraw Funds” from Appellant’s inmate trust account with the Texas Department
of Criminal Justice. This type of order has been referred to in the statutes and case
law as a withdrawal “notification.” See TEX. GOV’T CODE ANN. § 501.014(e) (West
Supp. 2015); Harrell v. State, 286 S.W.3d 315, 316 n.1 (Tex. 2009). The order
contains a notation that a copy of the order was sent to Appellant. On April 8, 2014,
Appellant filed his pro se “MOTION TO CORRECT AND/OR TO RESCIND
ORDER TO WITHDRAW FUNDS.” The trial court denied Appellant’s motion on
April 30, 2014. We affirm.
In Harrell, the Texas Supreme Court held that a withdrawal notification in
which the trial court directs prison officials to withdraw money from an inmate
account pursuant to Section 501.014(e) is a civil matter. Harrell, 286 S.W.3d at
317–18. It is much like a garnishment action or an action to obtain a turnover order.
Id. at 318–19. The inmate’s due process rights are satisfied if he receives notice of
the withdrawal notification and an opportunity to contest the dollar amount and the
statutory basis of the withdrawal in the form of a motion to rescind or modify the
withdrawal notification. Id. at 320–21. The trial court’s disposition of such a motion
creates an appealable order. See Ramirez v. State, 318 S.W.3d 906, 908 (Tex.
App.—Waco 2010, no pet.). We review a trial court’s ruling on the motion under
an abuse of discretion standard. Bretz v. State, No. 11-13-00313-CV, 2015 WL
6511508, at *1 (Tex. App.—Eastland Oct. 22, 2015, no pet.) (mem. op.); Williams v.
State, 332 S.W.3d 694, 698 (Tex. App.—Amarillo 2011, pet. denied).
In his first issue on appeal, Appellant argues that the trial court abused its
discretion when it denied his motion to correct or rescind the order to withdraw to
the extent that it relates to the $500 fine. He takes the position that the $500 fine
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The trial court actually signed the written judgment on August 31, 2011.
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referenced in the order to withdraw “has and had not been imposed and/or
pronounced against the Appellant at the time of sentencing.” As best we can
understand Appellant’s issue, he maintains that, when the trial court revoked his
community service, it did not again sentence him as far as the fine is concerned. He
further claims that, even so, there is a provision in the judgment, a punishment
option, under which he is allowed to pay the fine when released from prison.
Additionally, Appellant can be taken to contend that, after his community
supervision was revoked, the judgment of the trial court contained nothing about a
fine.
First, Appellant is incorrect when he takes the position that the fine was not
referenced in the judgment that the trial court entered after his community
supervision was revoked. The original judgment provided for a fine of $500 and
confinement for eight years. The trial court suspended only the imposition of the
confinement portion of the sentence; it did not suspend the imposition of the fine.
When the trial court revoked Appellant’s community supervision, it reduced the
confinement portion of the sentence to a period of six years and imposed that
sentence, and the judgment again referenced the $500 fine. We note that, in a case
such as this one that involves regular community supervision, as opposed to deferred
adjudication, the original fine is appropriately included in the judgment revoking
community supervision. Coffey v. State, 979 S.W.2d 326, 329 (Tex. Crim. App.
1998). It is not necessary that the trial court re-pronounce the fine when it revokes
regular community supervision. Abron v. State, 997 S.W.2d 281, 282 (Tex. App.—
Dallas 1998, pet. ref’d). Furthermore, insofar as Appellant complains of error in the
judgment of conviction or the judgment of revocation, we cannot address his
complaint in this appeal. See Armstrong v. State, 340 S.W.3d 759, 766–67 (Tex.
Crim. App. 2011).
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As far as that portion of Appellant’s argument is concerned wherein he claims
that the judgment allows him to wait until he is out of prison to pay his fine, he is
incorrect. The judgment provides that, upon his release from prison, he is to report
to the Taylor County Collections Department and pay or make arrangements to
finish paying the unpaid balance remaining on his fine. To pay or to wait to pay is
not a “punishment option” open to Appellant, as he appears to suggest.
We cannot say that the trial court abused its discretion when it denied
Appellant’s motion as it related to the withdrawal of funds in connection with the
$500 fine. We overrule Appellant’s first issue on appeal.
In his second issue on appeal, Appellant maintains that the trial court abused
its discretion when it ordered the withdrawal of funds in connection with court costs.
Appellant reiterates the claim that he made in connection with the fine: he could wait
and pay the costs when he was released from prison. Again, this clearly is not an
option for Appellant to choose but, rather, is a requirement that, when released, he
was to contact the Taylor County Collections Department and either pay or make
arrangements to pay the unpaid balance that remained due on the costs. Appellant
also claims that the cost figure contains elements that reflect expenses that were not
incurred by him or that are not “allowed under applicable law.”
The first judgment that the trial court entered on July 5, 2005, contained the
amount of the court costs. On September 7, 2011, Appellant was served with a
“NOTICE OF JUDGMENT AND SENTENCE.” The notice contained copies of
the judgment and sentence, the bill of costs, and the order to withdraw funds. The
amount of the court costs was again set out in each of five separate orders by which
the trial court, at various times, amended the terms of Appellant’s community
supervision. The judgment by which the trial court finally revoked Appellant’s
community supervision also contained not only a statement as to the amount of the
court costs, but also a detailed listing of the charges. The order to withdraw funds
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also contained a statement as to the amount of the costs. Yet Appellant never
objected to any of the items included in the bill of costs until some thirty-two months
had passed after entry of the withdrawal order. Generally, a party must complain in
the trial court before he will have preserved a complaint for appellate review.
Landers v. State, 402 S.W.3d 252, 254 (Tex. Crim. App. 2013). The requirement
assumes, however, that the party had the opportunity to raise it there. See
Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999) (the defendant did
not allege that he did not have an opportunity to object when sentence was
pronounced and, therefore, failed to preserve error). As we have outlined, Appellant
missed many opportunities to object to the amount or makeup of the court costs.
Appellant’s complaints are criminal matters that cannot be raised in this appeal. See
Armstrong, 340 S.W.3d at 766–67; see also TEX. CODE CRIM. PROC. ANN.
art. 103.008 (West 2006). Further, on appeal, Appellant has not complained that he
did not have an opportunity to timely raise a complaint about the court costs. We
hold that Appellant has failed to preserve this issue for review. We overrule
Appellant’s second issue on appeal.
We affirm the order of the trial court.
JIM R. WRIGHT
CHIEF JUSTICE
April 29, 2016
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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