Amber Hanif Rattani v. State ( 2020 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00373-CR
___________________________
AMBER HANIF RATTANI, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 1
Tarrant County, Texas
Trial Court No. 1536101D
Before Sudderth, C.J.; Bassel and Wallach, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
The trial court revoked Appellant Amber Hanif Rattani’s community
supervision and incorporated into the judgment an order to withdraw funds totaling
$1,654.1 The Community Supervision and Corrections Department “Revocation
Restitution/Reparation Balance Sheet” (hereinafter CSCD balance sheet) reflects that
the reparations amount owed by Appellant consists of $40 “DUE TO CSCD,” $960
in probation fees, a $280 unpaid fine, and $374 in court costs. In two points,
Appellant challenges only the assessment of the fine and the sufficiency of the
evidence to support the probation fees. Because an unpronounced fine cannot be
upheld and because there is no evidence to support $60 of the probation fees, we
modify the order to withdraw funds to delete the remaining balance of the fine
originally assessed at the deferred-adjudication hearing ($280) and the unsupported
portion of the probation fees ($60), leaving $1,314, and affirm the judgment.
1
The last page of the judgment states, “Furthermore, the following special
findings or orders apply: ATTACHMENT A, ORDER TO WITHDRAW
FUNDS.” The record contains two orders to withdraw funds: one that orders the
withdrawal of $374 (and presumably includes only court costs), and one that orders
the withdrawal of $1,654. Because the latter order is the one that Appellant
complains of on appeal, we focus on it.
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II. Background
Because the State “generally agrees” with the statement of facts set forth in
Appellant’s brief, we set forth that background here with some additions.2 As stated
in Appellant’s brief, she pleaded guilty to the offense of possession of a controlled
substance, namely methamphetamine, of 4 grams or more but less than 200 grams,
and on June 25, 2018, was placed on deferred-adjudication community supervision for
a period of six years. The order of deferred adjudication ordered Appellant to pay an
unsuspended fine of $300. As part of Appellant’s community-supervision conditions,
she was required to pay a $60 monthly supervision fee beginning on July 15, 2018.
The State filed an amended second petition to proceed to adjudication, alleging,
among other things, that Appellant had failed to pay her probation fees for six
months. Appellant pleaded “true” to each of the allegations in the State’s petition.
The trial court adjudicated Appellant guilty and sentenced her to three years in prison.
The trial court did not orally pronounce a fine when it pronounced judgment. The
judgment itself does not include a fine but incorporates the order to withdraw funds.
And as explained above, the $1,654 in the order to withdraw funds includes a $280
unpaid fine and $960 in probation fees.
2
See, e.g., Burton v. State, No. 05-08-01609-CR, 2009 WL 4879493, at *1 (Tex.
App.—Dallas Dec. 18, 2009, no pet.) (not designated for publication) (using facts
from appellant’s brief when the State agreed that “a satisfactory statement of the
factual background” had been set out in appellant’s brief).
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III. Unpronounced Fine
In her first point, Appellant contends that the $280 fine cannot stand because
the trial court did not pronounce it.
As explained above, the record reflects that the trial court assessed a $300 fine
when it initially placed Appellant on deferred-adjudication community supervision,
but the record also shows that when the trial court revoked her probation, adjudicated
her guilt, and sentenced her, it did not orally assess any fine. The fine that Appellant
disputes on appeal is not reflected on the face of the judgment but is part of the
amount in the order to withdraw funds, which is incorporated into the judgment.
A fine is part of the defendant’s punishment and sentence and must be orally
pronounced in her presence. See Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App.
2004). When a trial court adjudicates guilt, its new order sets aside the previous order
deferring adjudication, including any previously imposed fine. See id.; Lewis v. State,
423 S.W.3d 451, 459 (Tex. App.—Fort Worth 2013, pet. ref’d). And when the
judgment and oral pronouncement conflict, the oral pronouncement controls. See
Taylor, 131 S.W.3d at 502.
Because the trial court did not pronounce a fine at the adjudication hearing, the
fine included as part of the reparations in the order to withdraw funds cannot stand.
Accordingly, we sustain Appellant’s first point as to the remaining unpaid fine ($280)
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that was included in the total reflected in the order to withdraw funds. 3
IV. Sufficiency of the Evidence to Support Probation Fees
In her second point, Appellant argues that the evidence is insufficient to
support the $960 in probation fees that she was ordered to pay. Specifically,
Appellant argues that her testimony at the adjudication hearing supports only $360 of
the probation fees and that no evidence supports the remaining $600. The State
agrees in part, conceding that $60 of the probation fees should be deleted from the
order to withdraw funds.
In granting community supervision, a trial court must fix a fee of no more than
$60 per month, and if community supervision is later revoked, the trial court “shall
enter the restitution due and owing on the date of the revocation.” Tex. Code Crim.
Proc. Ann. arts. 42A.652(a), 42.03, § 2(b). Thus, unpaid probation fees may be taxed
against a defendant as reparations. See Zamarripa v. State, 506 S.W.3d 715, 716 (Tex.
App.—Fort Worth 2016, pet. ref’d).
Here, the evidence is sufficient to support $900 of the $960 in probation fees
ordered as reparations. As set forth above, the trial court placed Appellant on
3
To the extent that Appellant’s argument seeks a refund of the $20 that she had
paid toward the fine when it was assessed in the order of deferred adjudication, we
decline to order such a refund because she has failed to provide any authority showing
that is an appropriate remedy. Cf. Wordlaw v. State, Nos. 02-14-00286-CR, 02-14-
00287-CR, 2015 WL 505231, at *1 (Tex. App.—Fort Worth Feb. 5, 2015, no pet.)
(mem. op., not designated for publication) (“Under the facts of this case, we decline
to hold that a refund of unproven payments is an appropriate remedy, particularly when
[the appellant] has provided no authority to show that a refund is ever appropriate.”).
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deferred-adjudication community supervision on June 25, 2018, and ordered her to
pay a monthly $60 probation fee beginning on July 15, 2018. The trial court revoked
Appellant’s community supervision and adjudicated her guilt on October 7, 2019.
Therefore, Appellant accrued probation fees for fifteen months. According to the
CSCD balance sheet, she still owed those fees (15 months x $60 per month, or $900)
at the time of her adjudication. The CSCD balance sheet also includes an extra $60.4
The State concedes that $60 was erroneously included in the total unpaid probation fees.
Appellant, however, argues that she should have been ordered to pay only $360
in probation fees because the State alleged, and she pleaded true, that she had failed to
pay her supervision fees only for February through July 2019. We have previously
dealt with this same argument:
[W]e disagree with [the appellant’s] contention that, because the State’s
petition alleged only nine months of missed payments instead of twelve,
the amount should be capped at $540. The allegations in the State’s
petition, which must be proved by a preponderance of the evidence . . .
are relevant in determining whether [the appellant’s] community
supervision should be revoked; however, they do not form the basis of
the trial court’s imposition of reparations upon revocation. The code of
criminal procedure provides that in all revocations of suspended
sentences, the trial court “shall enter the restitution or reparation due
and owing on the date of the revocation.” Tex. Code Crim. Proc. Ann.
art. 42.03[,] § 2(b) . . . . Notwithstanding the number of missed
payments alleged in the State’s petition, the trial court was required to
order the payment of all reparations due and owing after [the appellant’s]
community supervision was revoked. See id.; Strother v. State, No. 14-12-
00599-CR, 2013 WL 4511360, at *3 (Tex. App.—Houston [14th Dist.]
Aug. 22, 2013, pet. ref’d) (mem. op., not designated for publication)[]
4
The State opines that the extra $60 represents the October 2019 payment that
was not due until October 15, 2019, which was eight days after the adjudication hearing.
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(“The State’s omission of an allegation about [appellant’s probation fee]
arrearage in its petition is no evidence that she was not in arrears, just as
the inclusion of other allegations is no evidence of the truth of those
allegations.”).
McKinney v. State, No. 02-12-00479-CR, 2014 WL 1510095, at *2 (Tex. App.—Fort Worth
Apr. 17, 2014, pet. ref’d) (per curiam) (mem. op., not designated for publication).
Accordingly, we agree with the State and conclude that the record supports
$900 of the $960 of probation fees. See Riojas v. State, No. 02-18-00026-CR, 2018 WL
3580897, at *2 (Tex. App.—Fort Worth July 26, 2019, no pet.) (mem. op., not
designated for publication) (holding record contained sufficient evidence to support
reparations for probation fees); McKinney, 2014 WL 1510095, at *2 (same). We sustain
Appellant’s second point only as to $60 of the probation fees assessed as reparations.
V. Conclusion
Having sustained Appellant’s first point as it relates to the $280 unpaid fine that
was included in the order to withdraw funds and having sustained Appellant’s second
point as to $60 of the probation fees that were included in the order to withdraw
funds, we modify the order to withdraw funds to delete $340, leaving a total of
$1,314, and we affirm the judgment adjudicating guilt.
/s/ Dabney Bassel
Dabney Bassel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: April 23, 2020
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