Joel Floyd v. State ( 2020 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-19-00281-CR
No. 07-19-00282-CR
JOEL FLOYD, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 108th District Court
Potter County, Texas
Trial Court Nos. 71, 537-E & 71, 538-E; Honorable Douglas R. Woodburn, Presiding
April 20, 2020
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, Joel Floyd, was indicted for, and convicted of, aggravated sexual
assault of a child1 and indecency with a child by sexual contact.2 The first jury trial
regarding these charges resulted in a hung jury. A second jury convicted Appellant of
each offense and assessed punishment at five years of imprisonment for the conviction
of aggravated sexual assault of a child and at two years of imprisonment for the conviction
1
TEX. PENAL CODE ANN. § 22.021(a)(2)(B) (West 2019).
2
TEX. PENAL CODE ANN. § 21.11(a)(1) (West 2019).
of indecency with a child by sexual contact. The court suspended those sentences in
favor of placing Appellant on community supervision for a period of five years and two
years respectively. Appellant’s community supervision was thereafter revoked, and the
trial court sentenced Appellant to serve the originally-imposed sentences. Appellant
appeals from those revocations, and by a single issue argues the judgments should be
“reformed and modified to reflect a consistent waiver of costs.” We overrule Appellant’s
issue and affirm the judgments of the trial court.
BACKGROUND
Appellant’s prosecution arose out of a delayed report of sexual conduct by
Appellant in 2001. As noted, he was convicted of each charged offense in a second jury
trial and his sentences were suspended in favor of his placement on community
supervision for each conviction. Appellant attempted to appeal his convictions pro se, but
the trial court determined Appellant was not indigent and this court dismissed his appeals
for failure to make required payment.
Thereafter, the State filed a motion to revoke Appellant’s community supervision
in each cause, alleging Appellant violated the terms and conditions of his supervision by
committing the new offense of driving while intoxicated, failing to report as directed, failing
to pay certain required fees, and failing to enroll in sex offender counseling as directed.3
The trial court held a hearing on the State’s motion to revoke Appellant’s community
supervision during which Appellant appeared in person and by retained counsel. At that
time, Appellant entered a plea of “true” to the State’s allegations, without a
3
At the outset of the revocation hearing, the State waived the third allegation in its motion to revoke
in cause number 71,538-E.
recommendation from the State as to the disposition of the case. At the conclusion of the
hearing, the trial court revoked the order suspending the imposition of sentence and
imposed the original sentences of five years of imprisonment for the conviction of
aggravated sexual assault of a child and two years of imprisonment for the conviction of
indecency with a child by sexual contact.
Thereafter, Appellant filed notices of appeal from each revocation. The clerk’s
record in each cause includes an order wherein the trial court appointed appellate counsel
to represent Appellant for purposes of these appeals, explicitly stating Appellant
“executed an affidavit stating that said defendant is without counsel and is too poor to
employ counsel[.]”
Appointed counsel for Appellant has filed a brief concerning each cause before us,
arguing the judgments should be reformed. Appellant notes that each judgment contains
a section under “Court Costs” that states “As per attached Bill of Cost.” Immediately
following the judgment in each cause is a document entitled Article 42.15 Addendum.
That document contains two provisions that are “checked,” indicating each applies to
Appellant. Those provisions provide as follows:
_ X__ The defendant does not presently have sufficient resources or
income to immediately pay all or part of the fine and costs but will, in the
future, have the ability to pay the fine and costs at a later date or at
designated intervals.
***
__X _ The defendant shall pay all of the fine and costs at designated
intervals with the times and amounts of such payments to be determined by
the District Clerk/County Clerk or its designee.
Appellant argues these provisions are inconsistent and requests this court reform
the judgments to reflect that the above-checked provisions do not apply to him. In lieu
thereof, Appellant contends a reformed judgment should check the paragraph shown
below:
_ X__ The defendant shall pay all of the fine and costs to District
Clerk/County Clerk or its designee upon release on parole or completion of
his/her sentence. If the defendant is unable to pay all of the fines and costs
upon release, the defendant shall, upon release, appear before the District
Clerk/County Clerk or its designee and make arrangements to pay the fine
and costs at designated intervals.
ANALYSIS
In his sole issue on appeal, Appellant argues that the requested reformation is
appropriate to resolve the apparent inconsistency in each Addendum. As support, he
points to the affidavit indicating his indigent status that was filed by Appellant and the
appointment of appellate counsel based on the finding of indigency at that time. The
State argues Appellant was not indigent and points to the documentation filed at the time
of trial and the trial court’s explicit determination that Appellant was not indigent at the
time he attempted to appeal his original sentence. As such, the State asserts, Appellant
is not indigent and is not entitled to a waiver of assessed costs. However, the State does
not object to a reformation of either judgment so long as the reformation does not result
in a waiver of those costs.
We review the assessment of court costs on appeal to determine whether there
was a basis for the costs, not to determine whether there was sufficient evidence offered
at trial to prove each cost. Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App.
2014). Court costs are not a component of the guilt or sentence of a defendant, and they
need not be proven at trial. Id. As a result, the conventional Jackson v. Virginia
evidentiary principles are, for the most part, inapplicable on appellate review to questions
concerning which costs and what amounts are properly assessed. Id. (citing Jackson v.
Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).
Likewise, when a trial court makes a determination that a defendant does not have
sufficient resources or income to immediately pay all or part of the fine and costs, the
question of how those fines and costs are to be paid in the future is a matter of judicial
discretion. In such a situation, the trial court has basically four options: (1) require that
the fine and costs be paid at some later date or in specified installments at designated
intervals, (2) require that the fine and costs be discharged by performing community
service, (3) waive the fine and costs, in whole or in part, and (4) require that the fine and
costs be discharged through any combination of the first three methods. See TEX. CODE
CRIM. PROC. ANN. art. 42.15(a-1) (West Supp. 2019).
This court has the power to modify the judgment of the court below to make the
record speak the truth when we have the necessary information to do so. TEX. R. APP. P.
43.2(b). Ramirez v. State, 336 S.W.3d 846, 852 (Tex. App.—Amarillo 2011, pet. ref’d)
(citing Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993)). Appellate courts
have the power to reform whatever the trial court could have corrected by a judgment
nunc pro tunc where the evidence necessary to correct the judgment appears in the
record. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d).
Here, we agree with the State that the trial court explicitly determined Appellant
was not indigent at the time of trial. However, the matters before us now involve
Appellant’s appeals from the revocations of his community supervision in each of the
underlying causes, not the appeals from his original convictions. These are separate
proceedings. The record indicates, through the affidavit of indigency filed by Appellant
and the appointment of counsel for purposes of appeal, the trial court found Appellant to
be indigent with regard to appeals of the revocations of his community supervision. “A
defendant who is determined by the court to be indigent is presumed to remain indigent
for the remainder of the proceedings in the case unless a material change in the
defendant’s financial circumstances occurs.” TEX. CODE CRIM. PROC. ANN. art. 26.04(p)
(West Supp. 2019); Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010). There
being nothing in the record to rebut the presumption that Appellant is indigent for purposes
of the appeals, we find the State has not rebutted that presumption in its arguments on
appeal. A finding of indigence does not, however, automatically equate to a waiver of
court costs and fines. As is clear from the provisions of article 42.15(a-1) of the Texas
Code of Criminal Procedure, if a defendant cannot immediately pay the fine and court
costs assessed, a trial court has several options available to it, including the incremental
payment over time, or waiver, in whole or in part.
Here, we are dealing with a locally-drafted (as opposed to a form promulgated by
the Office of Court Administration) “Addendum” to a judgment that could be described as
being divided in two parts—a “findings” section and an “orders” section. The first part
recites, “[a]fter conducting the inquiry required by CCP Art. 42.15(a-1), the Court makes
the following findings: . . . .” This recitation is followed by four options. Unfortunately, as
drafted, the options are not mutually exclusive such that a given set of facts could
conceivably fall under more than one option. The first two options deal with situations
where the trial court finds the defendant has sufficient resources or income to pay the fine
and court costs, either immediately or in installments—neither of which is applicable here.
In this case, the trial court chose to mark the third option finding the “defendant does not
presently have sufficient resources or income to immediately pay all or part of the fine
and costs but will, in the future, have the ability to pay the fine and costs at a later date or
at designated intervals.” (Emphasis added). There is nothing about this finding that is
incorrect or that is not supported by the record. While the fourth option is similar (it finds
the defendant is “indigent” as opposed to simply being unable to immediately pay the fine
and costs), but it is also distinguishable (and inappropriate to this case) because it also
includes a finding (contrary to the third option) that Appellant “will not, in the future, have
the ability to pay the fine and costs . . . .” Therefore, based on the record in this case, we
find that the trial court did not err in checking the third option.
The second part of the “Addendum,” expressed in seven options, orders that the
fine and costs of court either be waived, in whole or in part, or paid according to the terms
of the option selected. Again, unfortunately, the options are not mutually exclusive. In
this case, the trial court chose the third option ordering Appellant to pay “all of the fine
and costs at designated intervals with the times and amounts of such payments to be
determined by the District Clerk/County Clerk or its designee.” Aside from any question
concerning the delegation of judicial authority, there is nothing about this option that is
inconsistent with the earlier finding or otherwise inappropriate under the facts of this case.
Appellant just seems to prefer the equally available, non-exclusive option that provides
that the District Clerk shall defer any collection until he has been released on parole or
completed his sentence. Because either option lies within the discretion of the trial court,
and neither option is inconsistent with the earlier finding by the trial court, we find the trial
court did not err in checking the third option. Accordingly, we overrule Appellant’s sole
issue.
CONCLUSION
The trial court’s judgments are affirmed.
Patrick A. Pirtle
Justice
Do not publish.