Tomas Cordero v. State ( 2013 )

NO. 12-12-00365-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
TOMAS A. CORDERO, § APPEAL FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Tomas A. Cordero appeals from a judgment adjudicating guilt rendered after a hearing on
the State’s application to proceed to final adjudication. Appellant presents three issues. We
modify the trial court’s judgment and affirm as modified.
BACKGROUND
On July 10, 2008, a Smith County grand jury indicted Appellant for aggravated assault,
alleged to have been committed on July 23, 2005. On September 30, 2009, Appellant pleaded
guilty to the offense. Pursuant to a plea agreement, the trial court deferred an adjudication of
guilt and placed Appellant on community supervision for five years. On September 4, 2012, the
State filed a motion to adjudicate guilt alleging multiple violations by Appellant of the terms of
his community supervision. On September 30, 2012, following a hearing, the trial court
rendered an adjudication of guilt and assessed punishment at imprisonment for eighteen years.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his first issue, Appellant contends he did not receive effective assistance of counsel in
the original plea proceeding, because his trial counsel failed to raise the issue of limitations.
Except for error that would render the initial judgment void, issues relating to the original
proceeding that resulted in deferred adjudication community supervision may be raised only in
appeals at the end of that proceeding. Nix v. State, 65 S.W.3d 664, 667-68 (Tex. Crim. App.
2001); Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim. App. 1999). Those issues may not
be raised in an appeal taken after community supervision is terminated, guilt adjudicated, and
sentence imposed. See Nix, 65 S.W.3d at 667-68; Manuel, 994 S.W.2d at 661-62. Even if
meritorious, a plea of ineffective assistance of counsel does not make a conviction void. Nix, 65
S.W.3d at 669 (citing Custis v. United States, 511 U.S. 485, 496, 114 S. Ct. 1732, 1738, 128 L.
Ed. 2d 517 (1994)).
Appellant contends he was denied effective assistance of counsel prior to his plea of
guilty and the trial court’s order deferring adjudication. Appellant’s complaint does not allege an
error that would render that order void. An issue relating to the original proceeding, such as
denial of effective assistance of counsel, can be raised only in an appeal from the order deferring
adjudication. In this appeal, Appellant challenges the judgment adjudicating guilt and imposing
sentence. Consequently, Appellant is barred from raising the issue of ineffective assistance of
counsel that occurred at the original proceeding. Manuel, 994 S.W.2d at 662; Webb v. State, 20
S.W.3d 834, 536 (Tex. App.–Amarillo 2000, no pet.). Appellant’s first issue is overruled.
RESTITUTION
In his second issue, Appellant maintains the trial court abused its discretion in ordering
payment of $586.20 in restitution to an entity not entitled to receive restitution.
Standard of Review and Applicable Law
An appellate court reviews restitution orders under an abuse of discretion standard.
Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App. 1999). “An abuse of discretion by the
trial court in setting the amount of restitution will implicate due process considerations.” Id.
The amount of restitution must be just, and due process requires that evidence in the
record must show the amount has a factual basis. Id. The restitution ordered must be only for an
offense for which the defendant is criminally responsible. Id. at 697. The restitution must be for
the victim or victims of the offense charged. Id. And the trial court must specify the amount,
manner, and timing of payments. Simpson v. State, 772 S.W.2d 276, 280 (Tex. App.–Amarillo
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1989, no pet.).
If the offense results in personal injury to the victim, a sentencing court is authorized to
order payment of restitution to the victim for expenses incurred by the victim as a result of the
offense. TEX. CODE CRIM. PROC. ANN. art. 42.037(b)(2)(A) (West Supp. 2012). However,
restitution can be ordered only for the offense charged and can be made only to the victim for the
offense charged except where justice dictates that payment be made to a person or entity who has
compensated the victim for the loss. Id. art. 42.037(f)(1) (West Supp. 2012); Ceballos v. State,
246 S.W.3d 369, 373 (Tex. App.–Austin 2008, pet. ref’d).
Discussion
On September 30, 2009, Appellant filed a request for a Pre-judgment/Sentence
Investigation (PSI), which the trial court approved. On the same day, the trial court received
Appellant’s plea of guilty, deferred an adjudication of guilt, and placed Appellant on community
supervision for five years. The order also required that restitution be paid to the victim in an
amount to be determined. Also on the same day, Appellant waived his right to appeal.
On November 12, 2009, the trial court, based on an attached “Addendum to the Pre-
Sentence Investigation Report,” amended the conditions of community supervision to require
Appellant to pay East Texas Medical Center (ETMC) $89,494.62 at the rate of $1,658.00 each
month beginning on January 10, 2010. Appellant acknowledged receipt of a copy of the order
amending the terms of his community supervision on January 15, 2010.
A copy of Appellant’s PSI prepared before Appellant’s original hearing on September 30,
2009, was filed in the trial court on February 7, 2013. This PSI includes the records from the
victim’s three day stay at ETMC in Tyler. However, the hospital records did not include the
expenses the victim, Antonio Tucker, incurred as a result of the stab wound Appellant inflicted.
The addendum to the PSI, dated September 29, 2009, and the basis for the amount of
restitution ordered on November 12, 2009, was also filed with the trial court on February 7,
2013. The addendum contains the affidavit of the hospital’s agent that the losses incurred as a
result of this offense amounted to $88,908.42, and stated that billing was attached. The
addendum included another affidavit, dated September 24, 2009, stating that ETMC Emergency
Services sustained losses of $586.20 on July 23, 2005, as a result of this offense. The two
amounts combined equal the $89,494.62 restitution Appellant was ordered to pay by the
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amended order of November 12, 2009.
The bill for ETMC emergency services on July 23, 2005, is clearly attributable to
Appellant’s offense. However, the billings attached to the ETMC affidavit add up to $68,446.75,
not $88,908.42 as stated. Nor do the billings appear referable to Tucker’s injuries caused by the
offense.
Tucker stayed three days in ETMC following the offense on July 23, 2005. There is no
ETMC billing for those dates. But the billings show that Tucker went to the emergency room on
November 30, 2005, and remained in the hospital for three days ($23,761.00). He was admitted
again on December 29, 2005 ($17,584.25), and was back in the emergency room on January 27,
2006 ($4,686.25). He was admitted again on April 28, 2008 ($9,619.25). On January 12, 2009,
he was back in the emergency room ($6,326.00) and was there again on May 1, 2009
($1,104.00).
According to the medical records from Tucker’s hospitalization following the assault, he
had an uncomplicated and successful recovery. The record also shows that his wife did not want
him released to her home. She had ordered him out of the house because he smoked crack
cocaine every day, and she did not want him around the children.
Although young and apparently free from chronic illness other than drug addiction,
Tucker was admitted to the hospital six more times during the four intervening years between his
hospital release after the assault and Appellant’s original hearing on September 30, 2009. It
seems probable that Tucker’s six subsequent hospitalizations were related to his cocaine
addiction and lifestyle and not to the assault.
The record does not indicate that Appellant or his attorney were present when the amount
and recipient of restitution were specifically ordered on November 12, 2009. During the three
years Appellant was on community supervision, Appellant paid approximately five thousand
dollars in restitution.
Appellant insists the trial court erred in ordering payment of restitution to ETMC, an
entity not a victim of the offense. However, the appropriateness of restitution and the sufficiency
of the evidence supporting the amount ordered, like ineffective assistance of counsel, must be
raised in an appeal following the original proceeding. See Manuel, 994 S.W.2d at 661-62. Even
in a direct appeal from an order placing a defendant on community supervision, the failure to
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raise in the trial court the issues of the appropriateness or amount of restitution waives error.
Idowu v. State, 73 S.W.3d 918, 921 (Tex. Crim. App. 2002); Lemos v. State, 27 S.W.3d 42, 47
(Tex. App.–San Antonio 2000, pet. ref’d). Therefore, Appellant’s complaint is beyond our
review. Appellant’s second issue is overruled.
COURT COSTS
In his third issue, Appellant claims there is legally insufficient evidence for the trial
court’s assessment of court costs.
Standard of Review and Applicable Law
An appellate court measures the sufficiency of the evidence supporting the imposition of
court costs by reviewing the record in the light most favorable to the trial court’s order. Mayer v.
State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010).
A judgment shall “adjudge the costs against the defendant, and order the collection
thereof. . . .” TEX. CODE CRIM. PROC. ANN. art. 42.16 (West 2006). Court costs are not punitive
in nature and do not have to be included in an oral pronouncement of the sentence. Weir v.
State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009). Court costs do not alter the range of
punishment to which the defendant is subject, or the number of years assessed, “and, thus, are
not part of the sentence.” Id. A cost is not payable by the person charged with the cost until a
written bill is produced or 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 of the cost. TEX.
CODE CRIM. PROC. ANN. art. 103.001 (West 2006). The sufficiency of the evidence to support
assessments of costs contained within judgments may be directly appealed without the necessity
of having preserved the issue below. See Mayer, 309 S.W.3d at 556. “If a criminal action . . . is
appealed, an officer of the court shall certify and sign a bill of costs stating the costs that have
accrued and send the bill of costs to the court to which the action or proceeding is transferred or
appealed.” TEX. CODE CRIM. PROC. ANN. art. 103.006 (West 2006).
Discussion
The judgment placing Appellant on community supervision included an assessment of
$183.00 in court costs. The final judgment rendered upon the trial court’s revocation of
community supervision and adjudication of guilt includes court costs of $483.00. We ordered
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that a supplemental clerk’s record be filed containing a bill of costs or a certification that no bill
of costs existed at the time of judgment. In response to our order, a bill of costs was filed
showing court costs of $183.00. The State concedes that the bill of costs does not support the
court costs of $483.00 imposed in the final judgment from which this appeal was taken, and that
court costs were not properly assessed. Both Appellant and the State agree that there is nothing
in the record to account for the $300.00 difference between the bill of costs and the costs
included in the final judgment. We sustain Appellant’s third issue.
CONCLUSION
An appellate court has the authority to modify incorrect judgments when the necessary
information is available to do so. TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28
(Tex. Crim. App. 1993). Because we have held that the bill of costs does not support the amount
of costs assessed by the trial court, we modify the judgment to show court costs conforming to
the bill of costs of 183.00. In all other respects, the judgment is affirmed.
BILL BASS
Justice
Opinion delivered July 31. 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JULY 31, 2013
NO. 12-12-00365-CR
TOMAS A. CORDERO,
Appellant
v.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th Judicial District Court
of Smith County, Texas. (Tr.Ct.No.114-1103-08)
THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of this court that the judgment of the
trial court below should be modified and, as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the trial court below be modified to show court costs conforming to the bill of costs of
$183.00; and as modified, the trial court’s judgment is affirmed; and that this decision be
certified to the trial court below for observance.
Bill Bass, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired J.
Twelfth Court of Appeals, sitting by assignment.
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