Chad Allen Kelley v. State ( 2021 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00040-CR
Chad Allen Kelley, Appellant
v.
The State of Texas, Appellee
FROM THE 207TH DISTRICT COURT OF COMAL COUNTY
NO. CR2016-130, THE HONORABLE GARY L. STEEL, JUDGE PRESIDING
MEMORANDUM OPINION
Pursuant to a negotiated plea agreement, appellant Chad Allen Kelley pled guilty
to the first-degree offense of possession with intent to deliver a controlled substance,
methamphetamine, in an amount of four grams or more but less than 200 grams, see Tex. Health
& Safety Code §§ 481.102(6), .112(a), (d), and was placed on deferred adjudication community
supervision for ten years, see Tex. Code Crim. Proc. art. 42A.101.1 The trial court subsequently
granted the State’s motion to adjudicate after finding that appellant had violated the terms and
conditions of his supervision. See Tex. Crim. Proc. Code art. 42A.108. The court revoked
appellant’s community supervision, adjudicated his guilt, and assessed his punishment at twenty
1
At the time appellant was placed on deferred adjudication community supervision, the
statutes governing community supervision were codified in article 42.12 of the Code of Criminal
Procedure. Effective January 1, 2017, the community supervision statutes were re-codified in
chapter 42A of the Code of Criminal Procedure. See Act of May 26, 2015, 84th Leg., R.S., ch. 770,
§ 1.01, 2015 Tex. Gen. Laws 2321, 2321–65. Because the re-codification was a non-substantive
revision of the community supervision laws, we cite to the current statutes in this opinion.
years’ confinement in the Texas Department of Criminal Justice. See id. arts. 42A.108, .110;
Tex. Penal Code § 12.32. On appeal, appellant contests the revocation of his community
supervision based on the violation of purportedly “void” supervision conditions, challenges the
restitution order, complains about error in the imposition of the fine and restitution order, and
seeks additional jail-time credit to his sentence. We will modify the trial court’s judgment
adjudicating guilt and, as modified, affirm the judgment.
BACKGROUND
On March 2, 2016, appellant was indicted in the 207th Judicial District Court of
Comal County, Texas, for possession with intent to deliver a controlled substance,
methamphetamine, in an amount of four grams or more but less than 200 grams. On July 19, 2016,
appellant pled guilty to the charged offense pursuant to a plea-bargain agreement. In exchange
for appellant’s guilty plea, the State agreed to recommend that appellant be placed on deferred
adjudication community supervision for ten years. The negotiated agreement included a $2,000
fine, $180 restitution to the Texas Department of Public Safety (DPS), and 200 community-
service hours. The plea proceeding occurred in the 207th Judicial District Court of Comal
County, Texas, before the Honorable Gary L. Steel, presiding judge of the 274th Judicial District
Court.2 The trial court accepted the plea-bargain agreement, deferred adjudication of appellant’s
guilt, placed him on community supervision for ten years (to start upon appellant’s release from
state jail3), and assessed “a $2,000 fine, $180 of restitution [to DPS], court costs,
2
The record reflects that Judge Steel was the trial judge who presided over all of the
proceedings in this case.
3
Also as part of the plea agreement, appellant pled guilty to two additional charges of
possession of less than one gram of a controlled substance, methamphetamine, which were state
2
reimburse[ment] [to] the County for court-appointed attorney’s fees[,] and 200 hours
of community service restitution and the conditions that are recommended by the
probation department.”
The trial court’s order of deferred adjudication, which was signed by Judge Steel
on July 26, 2016, reflected that appellant was placed on community supervision in the
207th Judicial District Court of Comal County, Texas. The Conditions of Community
Supervision, which were filed on July 26, 2016, reflected in the body of the document that
appellant was placed on community supervision “by the Honorable Gary Steel [of the]
274th District Court of Comal County, Texas,” and Judge Steel’s signature had the notation
“274th” by his name. The style of the cause appearing at the top of the document indicated that
the supervision conditions were imposed “IN THE 22ND DISTRICT COURT OF COMAL
COUNTY, TEXAS.”
The record indicates that appellant was released from state jail on January 23, 2017.
An order amending appellant’s community supervision was signed by Judge Steel on
March 14, 2017. The style of the cause on that order reflected that it was entered “IN
THE 274TH DISTRICT COURT OF COMAL COUNTY, TEXAS.” Two months later, on
May 22, 2017, an order modifying the conditions of appellant’s community supervision to
commit him to a residential treatment center was signed by Judge Steel. The style of the cause
on that order reflected that it was entered “IN THE DISTRICT COURT OF COMAL COUNTY,
TEXAS.” Subsequent orders amending appellant’s community supervision were signed by
jail felonies. See Tex. Health & Safety Code §§ 481.102(6), .115(a), (b). The trial court found
appellant guilty of those offenses, sentenced him to serve one year in a state jail facility for each
offense (with credit for time served), and ordered the sentences to be served concurrently. See
Tex. Penal Code § 12.35(a).
3
Judge Steel on September 9, 2017, on October 11, 2017, and on November 9, 2017. The style of
the cause on each of these orders reflected that the order was entered “IN THE 274TH
DISTRICT COURT OF COMAL COUNTY, TEXAS.”
On July 9, 2018, the State filed a motion to adjudicate. The adjudication hearing
was conducted before Judge Steel in the 207th Judicial District Court of Comal County, Texas.4
Appellant pled true to all of the allegations in the motion to adjudicate.5 The court revoked
appellant’s community supervision, adjudicated his guilt, and sentenced him to twenty years in
prison. The judgment adjudicating guilt, signed by Judge Steel, reflects that the judgment was
entered in the 207th Judicial District Court of Comal County, Texas.
DISCUSSION
Appellant raises four points of error. In his first point of error, he argues that the
trial court could not revoke his community supervision based on his violation of “void”
supervision conditions. In his second point of error, he challenges the restitution order to DPS.
In his third point of error, he contends that the trial court erred when imposing the fine and
4
The reporter’s record indicates that both the plea hearing and the adjudication hearing
occurred before Judge Steel in the 274th Judicial District Court of Comal County, Texas.
However, an Agreement to Correct Inaccuracy in Reporter’s Record was filed in this Court, in
which the parties agreed that the reporter’s record is inaccurate in showing that the hearings
occurred in the 274th Judicial District Court and that the hearings actually took place in the
207th Judicial District Court of Comal County, Texas.
5
The State’s motion to adjudicate contained eleven paragraphs alleging that appellant
had violated the terms and conditions of supervision in various ways, including: failing to
abstain from the use of controlled substances (methamphetamine and amphetamine); failing to
report to his community supervision officer; failing to pay court costs; failing to pay various fees
associated with his supervision; failing to submit a specimen for drug testing; failing to
participate in the mental health caseload; failing to attend AA or NA meetings; and failing to
complete the Aftercare Program following residential drug treatment.
4
ordering the restitution. In his fourth point of error, appellant seeks modification of the written
judgment adjudicating guilt to grant additional jail-time credit against his sentence.
“Void” Supervision Conditions
In first point of error, appellant argues that the trial court that imposed and
modified the terms and conditions of his community supervision, which he maintains was the
274th Judicial District Court, lacked jurisdiction to do so. Thus, according to appellant, the
terms and conditions imposed or modified were “void” and his violation of these “void” terms
and conditions could not form the basis for the revocation of his community supervision (or,
therefore, the subsequent adjudication of his guilt).
The concepts of jurisdiction, judicial power, and authority of courts and judges—
and the interaction between them—are complex and often confusing, and the parties seem to
conflate them in their briefing. We need not parse them out here, however, as appellant’s
argument is premised on his contention that the terms and conditions of his community
supervision were imposed, and later modified, by a court without the statutory authority to do so
under article 42A.051 of the Code of Criminal Procedure. As appellant correctly notes, this
statute provides that “only the court in which the defendant was tried” may impose or modify the
conditions of community supervision.6 Tex. Code Crim. Proc. art. 42A.051(a)–(b). Here the
6
Specifically, article 42A.051 of the Code of Criminal Procedure provides:
(a) Unless the judge has transferred jurisdiction of the case to another court
under Article 42A.151, only the court in which the defendant was
tried may:
(1) grant community supervision;
(2) impose conditions; or
(3) discharge the defendant.
5
court in which appellant was tried—that is, the court in which appellant was indicted and that
accepted his guilty plea—was the 207th Judicial District Court, not the 274th Judicial District
Court. Therefore, the 274th Judicial District Court did not have authority under article 42A.051
to impose or modify the terms and conditions of supervision in this case.
However, the record refutes appellant’s assertion that the 207th Judicial District
Court “did not impose or modify a single condition” of appellant’s community supervision. The
original order of deferred adjudication entered by Judge Steel in the 207th Judicial District Court
imposed—on its face—a $2,000 fine and $180 restitution to the Texas Department of Public
Safety. Further, the May 22, 2017, order modifying supervision conditions to commit appellant
to a residential treatment center, which added the condition that appellant complete the Aftercare
Program following his stay at the residential treatment center, was entered “in the District Court
of Comal County, Texas.” Given that this order was entered in a cause pending in the
207th Judicial District Court, it can be construed as being entered in the 207th Judicial District
Court. Thus, these terms and conditions—that appellant pay a $2,000 fine, that he pay $180 in
restitution to DPS, and that he complete the Aftercare Program—were imposed or modified by
the 207th Judicial District Court, the court in which appellant was tried.
The State’s motion to adjudicate included allegations that appellant violated the
terms and conditions of his supervision by failing to pay the $2,000 fine, by failing to pay the
(b) The judge of the court having jurisdiction of the case may, at any time
during the period of community supervision, modify the conditions of
community supervision. Except as provided by Article 42A.052(a), only
the judge may modify the conditions.
Tex. Code Crim. Proc. art. 42A.051. We note that after a transfer described in subsection (a),
“the court accepting jurisdiction subsequently shall proceed as if the defendant’s trial and
conviction had occurred in that court.” Id. art. 42A.151(b). The record does not reflect, and the
State does not contend, that such a transfer occurred here.
6
$180 restitution to DPS, and by failing to complete the Aftercare Program. Appellant pled true
to all of the allegations in the motion to adjudicate, including the violation of these three terms
and conditions. Further, the trial court found that appellant violated the terms and conditions of
his community supervision as alleged in the State’s motion to adjudicate, which specifically
alleged, among other things, that appellant failed to pay the $2,000 fine, failed to pay the $180
restitution to DPS, and failed to complete the Aftercare Program.
Thus, the record demonstrates that the court in which appellant was tried (the
207th Judicial District Court):
• granted appellant community supervision;
• imposed the fine and restitution as terms and conditions of appellant’s supervision in the
original order of deferred adjudication;
• modified the terms and conditions of appellant’s supervision in the May 22, 2017 order
modifying conditions of supervision to include the additional condition of completing the
Aftercare Program;
• accepted appellant’s plea of true to violating the terms and conditions of his supervision as
alleged in the State’s motion to adjudicate—including appellant’s failure to pay the fine, his
failure to pay the restitution, and his failure to complete the Aftercare Program;
• revoked appellant’s community supervision based, in part, on appellant’s failure to pay the
fine, his failure to pay the restitution, and his failure to complete the Aftercare Program; and
• adjudicated appellant’s guilt.
Consequently, the record supports the trial court’s revocation of appellant’s community
supervision and adjudication of guilt. See Tex. Code Crim. Proc. arts. 42A.051(a)–(b), .754; see
also Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012) (“[P]roof of a single violation
will support revocation.”); Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009)
(affirming that Court of Criminal Appeals has “long held that ‘one sufficient ground for
7
revocation would support the trial court’s order revoking’ community supervision”)
(quoting Jones v. State, 571 S.W.2d 191, 193 (Tex. Crim. App. 1978)).
We overrule appellant’s first point of error.
Restitution Order
As part of the plea-bargain agreement in this case, the parties agreed that
appellant would “pay $180.00 Restitution payable to [the] DPS Laboratory.” The exhibits
admitted in support of appellant’s guilty plea contained a lab report from the Texas Department
of Public Safety Crime Laboratory, which was accompanied by a form requesting
“reimbursement to the law enforcement agency, the Texas Department of Public Safety, Crime
Laboratory, for its costs incurred in the analysis” of the controlled substance in this case; the
form reflected that the sum of the cost was $180. In accordance with the plea agreement and the
evidence admitted, the trial court incorporated the reimbursement for the lab fees into the terms
and conditions of appellant’s supervision, although the court referred to the reimbursement as
“restitution.”7 When the trial court revoked appellant’s community supervision, adjudicated his
guilt, and sentenced him to prison, the trial court ordered appellant to pay $180 restitution to the
Texas Department of Public Safety.
In his second point of error, appellant challenges the trial court’s restitution order.
He contends that the trial court did not have authority to order him to pay restitution to DPS
7
We note that “reimbursement” and “restitution” are not identical terms as used in the
Code of Criminal Procedure. See Brown v. State, No. 06-11-00022-CR, 2011 WL 3275284,
at *1 (Tex. App.—Texarkana Aug. 2, 2011, no pet.) (mem. op., not designated for
publication) (discussing distinction between “restitution” and “reimbursement” in Code of
Criminal Procedure).
8
when the court imposed his twenty-year prison sentence and thus, he argues, the restitution order
is not supported by sufficient evidence.
We begin our analysis by determining whether appellant has preserved this
complaint for appellate review. The State maintains that appellant failed to preserve his
challenge to the restitution order for appellate review because he failed to object to the restitution
order when he was placed on deferred adjudication community supervision. The State further
contends that appellant waived any complaint about the restitution order because restitution to
DPS was part of the plea bargain. However, the State conflates reimbursement for lab fees
imposed as a condition of community supervision (even though, as noted above, the
reimbursement was referred to as “restitution” in this case) with restitution to a victim of the
crime. Compare Tex. Code Crim. Proc. art. 42A.301(b)(18) (providing that conditions of
community supervision may include reimbursement for lab fees), with id. art. 42.037(a) (granting
trial court discretion to order defendant to make restitution to “any victim of the offense”);
see Sexton v. State, No. 11-18-00278-CR, 2019 WL 4316791, at *1 (Tex. App.—Eastland
Sept. 12, 2019, pet. ref’d) (mem. op., not designated for publication) (stating that although trial
court has authority to require defendant to reimburse DPS for lab fees as condition of community
supervision, trial court has no authority to assess DPS lab fees as restitution when defendant is
sentenced to imprisonment); Aguilar v. State, 279 S.W.3d 350, 353 (Tex. App.—Austin 2007, no
pet.) (explaining that trial court can order defendant to pay DPS lab fees “but only as a condition
of community supervision”).
Moreover, when a defendant receives deferred adjudication, no sentence is
imposed. Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004). Thus, when the
defendant violates a condition of deferred adjudication community supervision, the trial court
9
may proceed to adjudicate guilt, assess punishment, and pronounce sentence. See Tex. Code
Crim. Proc. art. 42A.110(a) (“After an adjudication of guilt, all proceedings, including
assessment of punishment, pronouncement of sentence, granting of community supervision, and
defendant’s appeal continue as if the adjudication of guilt had not been deferred.”); Ross v. State,
No. 03-00-00260-CR, 2001 WL 57993, at *1 (Tex. App.—Austin Jan. 25, 2001, no pet.) (mem.
op., not designated for publication) (observing that “[a]mong the consequences of a violation of
the conditions of deferred adjudication supervision is adjudication of guilt, after which
assessment of punishment and imposition of sentence continue as if adjudication had not been
deferred”). When guilt is adjudicated, the judgment adjudicating guilt sets aside the order
deferring adjudication. Taylor, 131 S.W.3d at 502; see McCoy v. State, 81 S.W.3d 917, 919
(Tex. App.—Dallas 2002, pet. ref’d) (“By adjudicating guilt, the trial court supplants its previous
order deferring adjudication of guilt and imposing community supervision.”).
Here, after appellant admitted violating his supervision conditions, his community
supervision was revoked, and the trial court adjudicated his guilt. The restitution order that
appellant challenges here was imposed when he was sentenced to prison upon adjudication,
which “set aside” the order of deferred adjudication, including the restitution previously imposed
as a condition of community supervision. A sentence that is assessed upon adjudication is not
imposed pursuant to a plea bargain. See Ditto v. State, 988 S.W.2d 236, 238–39 (Tex. Crim.
App. 1999) (observing that, upon adjudication of guilt after violation of deferred adjudication
community supervision, trial court has no further obligation to comply with plea bargain because
bargain has already been satisfied by initial sentencing). Thus, the State’s reliance on the
previous terms of the plea bargain, or appellant’s failure to object to such, is misplaced.
10
The State further claims that appellant is estopped from raising a sufficiency
challenge because he agreed to the restitution to DPS as part of the plea bargain. See Price
v. State, No. 12-10-00363-CR, 2011 WL 3618088, at *3 (Tex. App.—Tyler Aug. 17, 2011, no
pet.) (mem. op., not designated for publication) (stating that “an appellant waives the right to
complain that a restitution assessment lacks the necessary evidentiary support when an appellant
expressly requests that the trial court assess restitution in a plea agreement”); Ayala v. State,
No. 07-16-00411-CR, 2017 WL 3611617, at *2 (Tex. App.—Amarillo Aug. 10, 2017, pet. ref’d)
(mem. op., not designated for publication) (“By agreeing to the assessment as part of the plea
and effectively asking the court to abide by the plea agreement, appellant waived his right to
complain that the assessment lacked evidentiary support.”). As we previously noted, however,
the restitution that the trial court ordered upon appellant’s adjudication was not imposed pursuant
to a plea agreement. Furthermore, the plea bargain involved restitution to DPS as a condition of
community supervision. Thus, we cannot agree that appellant’s plea-bargain agreement—
already satisfied by his initial placement on community supervision—estops him from raising a
sufficiency challenge in this subsequent proceeding.
Finally, the State also maintains that appellant’s failure to object to the restitution
order when he was sentenced at the adjudication hearing failed to preserve this complaint for
appellate review. “If a defendant wishes to complain about the appropriateness of (as opposed to
the factual basis for) a trial court’s restitution order, he must do so in the trial court, and he must
do so explicitly.” Idowu v. State, 73 S.W.3d 918, 921 (Tex. Crim. App. 2002); see Tex. R. App.
P. 33.1(a) (providing general preservation of error requirements). However, challenges to the
sufficiency of the evidence supporting a restitution order can be raised for the first time on
appeal. Idowu, 73 S.W.3d at 921–22; see Moore v. State, 371 S.W.3d 221, 225 (Tex. Crim. App.
11
2012) (explaining that “[i]n contrast to evidence-sufficiency challenges, for which no
preservation of error is required, challenges to the propriety of trial-court rulings must be
preserved for appeal”); Mayer v. State, 309 S.W.3d 552, 555 (Tex. Crim. App. 2010) (stating
that “a claim regarding sufficiency of the evidence need not be preserved for appellate review at
the trial level, and it is not forfeited by the failure to do so” (quoting Moff v. State, 131 S.W.3d 485,
489 (Tex. Crim. App. 2004)). The State appears to characterize appellant’s challenge as a
complaint to the propriety of the restitution order. Appellant, however, maintains that his
complaint that DPS is not a victim for purposes of the restitution statute “is an argument about
the sufficiency of the evidence” supporting the restitution order, “not the appropriateness of
restitution.” As appellant presents his complaint, we agree. We turn now to the merits of
appellant’s sufficiency challenge.
A sentencing court may order a defendant to pay restitution to “any victim of the
offense.” Tex. Code Crim. Proc. art. 42.037(a); Hanna v. State, 426 S.W.3d 87, 92 (Tex. Crim.
App. 2014). However,
due process places three limitations on the restitution a trial judge may order:
(1) the restitution ordered must be for only the offense for which the defendant is
criminally responsible; (2) the restitution must be for only the victim or victims of
the offense for which the defendant is charged; and (3) the amount must be just
and supported by a factual basis within the record.
Burt v. State, 445 S.W.3d 752, 758 (Tex. Crim. App. 2014). “[F]or purposes of the restitution
statute, a ‘victim’ is any person who suffered loss as a direct result of the criminal offense.”
Hanna, 426 S.W.3d at 94. “The phrase ‘as a result of the offense’ includes the notion of both
actual and proximate causation.” Id. at 95. This Court has previously concluded that expenses
incurred by the Texas Department of Public Safety laboratory in performing its drug-testing
12
functions in connection with the investigation of a criminal offense are not sustained as a result
of being a victim of crime, and are not, therefore, subject to a restitution order.8 Aguilar,
279 S.W.3d at 353.
We agree with appellant that the evidence in this case is not sufficient to support
the restitution order to DPS as a victim of the instant offense under article 42.037(a). See Tex.
Code Crim. Proc. art. 42.037(a); Aguilar, 279 S.W.3d at 353. Therefore, we sustain appellant’s
second point of error and modify the judgment adjudicating guilt to delete the restitution order.9
8
We note that several of our sister courts of appeals have concluded the same or
issued opinions consistent with this conclusion. See Wesley v. State, No. 06-19-00269-CR,
2020 WL 3456599, at *2 (Tex. App.—Texarkana June 25, 2020, no pet.) (mem. op., not
designated for publication); Britt v. State, No. 13-19-00166-CR, 2020 WL 2776530, at *1 n.3
(Tex. App.—Corpus Christi–Edinburg May 28, 2020, no pet.) (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.) (mem. op., not designated for publication); Jackson v. State,
562 S.W.3d 717, 724 (Tex. App.—Amarillo 2018, no pet.); Zimmerman v. State,
No. 05-17-00492-CR, 2018 WL 3968419, at *7 (Tex. App.—Dallas Aug. 20, 2018, pet.
dism’d) (mem. op., not designated for publication); King v. State, No. 12-17-00194-CR,
2018 WL 345737, at *1 (Tex. App.—Tyler Jan. 10, 2018, no pet.) (mem. op., not designated for
publication); Milligan v. State, No. 02-16-00035-CR, 2016 WL 6123643, at *1 n.2 (Tex. App.—
Fort Worth Oct. 20, 2016, no pet.) (mem. op., not designated for publication); Abraham v. State,
No. 04-13-00180-CR, 2014 WL 2917378, at *1 (Tex. App.—San Antonio June 25, 2014, no
pet.) (mem. op., not designated for publication), although one of our sister courts agreed only in
part, see Horton v. State, No. 10–09–00258–CR, 2010 WL 2010932, at *3 (Tex. App.—Waco
May 19, 2010, pet. ref'd) (mem. op., not designated for publication) (agreeing that “DPS does not
incur lab fees as the result of being the victim of a crime” but concluding that reimbursement for
lab fees could be assessed as “reparation”). Given this consensus, we are unpersuaded by the
State’s argument that Aguilar departs from recognized principles of causation and “leads to an
absurd result which conflicts with the Legislature’s intent.”
9
Because we resolve this issue on sufficiency grounds, we do not address appellant’s
alternative contention that, because the trial court lacked authority to order appellant to pay lab
fees as restitution to DPS, the restitution order was “void,” other than to note that, in support of
that contention, appellant asserts that this Court “has characterized such an impermissible order
as void,” citing to our opinion in Ireland v. State, No. 03-14-00616-CR, 2015 WL 4914982, at *1
(Tex. App.—Austin Aug. 12, 2015, no pet.) (mem. op., not designated for publication).
However, appellant misreads that opinion. While this Court set forth the defendant’s
argument—“that the restitution ordered in the written judgment adjudicating guilt should be
13
See Burt, 445 S.W.3d at 757–58 (holding that deletion of written restitution order is appropriate
when trial judge does not have statutory authority to impose specific restitution order).
Imposition of Fine
The trial court sentenced appellant to twenty years in prison and pronounced that
any part of the previously imposed fine would “remain due and owing.” Consistent with that
pronouncement, the written judgment adjudicating guilt reflects a fine of $2,000 “with credit for
any money previously paid.” In his third point of error, appellant argues that the trial court erred
in failing to state the exact amount of the fine imposed because the court “did not pronounce how
much money was still owing and therefore did not state the amount of the fine . . . being made a
part of Appellant’s sentence.”10
Generally, a defendant may not assert error pertaining to his sentence or
punishment when he failed to object or otherwise raise the error in the trial court. Mercado
v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986); see Tex. R. App. P. 33.1(a). A
defendant’s failure to timely object, or his acquiescence, may result in the forfeiture of his
complaint. See Mercado, 718 S.W.2d at 296. “A sentencing issue may be preserved by
objecting at the punishment hearing, or when the sentence is pronounced.” Burt v. State,
396 S.W.3d 574, 577 (Tex. Crim. App. 2013); see, e.g., Idowu, 73 S.W.3d at 923. In some
deleted because it constitutes a void sentence”—and sustained that point of error, deleting the
restitution order because the trial court did not have statutory authority to impose the restitution
order at issue in that case, we did not hold that the order was “void.” Id. at *2. It was the
defendant, not this Court, that characterized it as such.
10
For the same reason, appellant also contends that the trial court failed to state the exact
amount of the restitution ordered. However, given our disposition of appellant’s second point
of error, which resulted in the deletion of the restitution order, we do not address that
contention here.
14
instances, “if the appellant did not have the opportunity to object in the punishment hearing,” a
sentencing issue may be raised in a motion for new trial. Burt, 396 S.W.3d at 577 & n.4.
Here, as the State correctly notes, appellant failed to present any complaint about
his sentence—including the imposition of the fine—to the trial court at the adjudication hearing
when he was sentenced.
Appellant appears to suggest that his failure to object is excused because his
statutory and due process right to have his sentence orally pronounced in his presence was
violated. See Burt, 445 S.W.3d at 757 (observing that “fairness to the defendant requires that his
sentence be ‘pronounced orally in his presence’”); Tex. Code Crim. Proc. art. 42.03, § 1(a)
(providing that “sentence shall be pronounced in the defendant’s presence”). However, the
record demonstrates that appellant was present when his sentence—including the fine, which the
record reflects was the same $2,000 fine previously imposed—was orally pronounced and he had
the opportunity to object to the fine amount. Contrary to appellant’s contention, the unknown
“exact” amount was not the fine amount but the portion unpaid and still owed by appellant. The
fine imposed was $2,000 whether appellant had paid $0, $2,000, or some amount in between;
how much appellant had paid did not impact the amount of the fine imposed.
Because the fine was orally pronounced in appellant’s presence and appellant had
the opportunity to object to the fine amount but did not raise any such complaint at any time
before appeal, we conclude that this complaint was not preserved for appellate review. See Tex.
R. App. P. 33.1(a); see, e.g., Hardeman v. State, 1 S.W.3d 689, 690 (Tex. Crim. App. 1999)
(concluding that defendant failed to preserve error when he was given opportunity to object
when sentence was pronounced but did not). We overrule appellant’s third point of error.
15
Time Credit
In his final point of error, appellant seeks modification of the written judgment
adjudicating guilt to include additional jail-time credit against his twenty-year sentence.
The trial court is required to credit the sentence of a criminal defendant for time
the defendant spent “in jail for the case . . . from the time of his arrest and confinement until his
sentence by the trial court” except for time served as a condition of community supervision.
Tex. Code Crim. Proc. art. 42.03, § 2(a)(1); see Ex parte Bynum, 772 S.W.2d 113, 114 (Tex.
Crim. App. 1989) (“It is settled that an individual is entitled to all time spent in jail ‘on said
cause.’”). “The trial court is required to grant the [defendant] pre-sentence jail time credit when
[the] sentence is pronounced.” Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App. 2004).
Further, the credit for time served must be contained in the trial court’s judgment. See Tex. Code
Crim. Proc. art. 42.01, § 1(18) (“The judgment shall reflect . . . any credit for time served[.]”).
When sentencing appellant in this case, the trial court gave appellant “credit for
time served as allowed under the rules and laws of this state.” The written judgment of
adjudication reflects time credit for three separate periods that appellant served in jail:
• from his original arrest until his release on bond (“01/09/15 to 04/09/15”);
• from his arrest after his bond was revoked until his placement on community supervision
(“02/04/16 to 07/09/16”); and
• from his arrest on his community-supervision violation until his adjudication and sentencing
(“02/07/18 to 12/20/18”).
Appellant contends that he is entitled to an additional ten days of jail-time credit because the
second period should reflect time credit from “02/04/16 to 07/19/16”—rather than 07/09/16—
because the original plea hearing was on July 19, 2016, rather than July 9, 2016, and the record
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reflects that appellant was incarcerated in jail on this charge until his placement on community
supervision on that date. The State does not oppose granting the additional ten days of time
credit, indicating that the date in the judgment appears to be a typographical error.
This Court has authority to modify incorrect judgments when the necessary
information is available 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). Further, this Court has “the power to modify whatever the trial
court could have corrected by a judgment nunc pro tunc when the information necessary to
correct the judgment appears in the record.” Ette v. State, 551 S.W.3d 783, 792 (Tex. App.—
Fort Worth 2017), aff’d, 559 S.W.3d 511 (Tex. Crim. App. 2018); accord Morris v. State,
496 S.W.3d 833, 836 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d); see Ybarra, 149 S.W.3d
at 148 (explaining that, in event trial court fails to award pre-sentence jail-time credit when
sentence is pronounced, trial court has authority to correct judgment to reflect appropriate time
credit by judgment nunc pro tunc (citing Tex. R. App. P. Rule 23.2)).
Accordingly, we sustain appellant’s fourth point of error and modify the written
judgment adjudicating guilt with respect to the second period of time credit, modifying the date
from “07/09/16” to “07/19/16.”
CONCLUSION
We conclude that the record supports the trial court’s revocation of appellant’s
community supervision and adjudication of guilt, that the evidence is not sufficient to support the
restitution order to DPS, that appellant failed to preserve his complaint about the imposition of
the fine for appellant review, and that appellant is entitled to an additional ten days of time credit
against his sentence. Accordingly, we modify the written judgment to delete the order of $180
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restitution to the Texas Department of Public Safety and to reflect that the “Time Credited” is
“FROM 01/09/15 TO 04/09/15 02/04/16 TO 07/19/16 02/07/18 TO 12/20/18.” As so
modified, we affirm the trial court’s judgment adjudicating guilt.
__________________________________________
Edward Smith, Justice
Before Justices Triana, Kelly, and Smith
Modified and, as Modified, Affirmed
Filed: January 8, 2021
Do Not Publish
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