Appellant Has Not Requested Oral Argument; State Waives Argument No. 05-09-00321-CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS JASON WESLEY WILLINGHAM, APPELLANT vs. THE STATE OF TEXAS, APPELLEE On appeal from Criminal District No. 2 Of Dallas County, Texas In Cause No. F01-00603 STATE S BRIEF Counsel of Record: CRAIG WATKINS PATRICIA POPPOFF NOBLE CRIMINAL DISTRICT ATTORNEY ASSISTANT DISTRICT ATTORNEY DALLAS COUNTY, TEXAS STATE BAR NO. 15051250 FRANK CROWLEY COURTS BUILDING 133 N. RIVERFRONT BOULEVARD, LB-19 DALLAS, TEXAS 75207-4399 (214) 653-3634 (214) 653-3643 fax Attorneys for the State of Texas
TABLE OF CONTENTS INDEX OF AUTHORITIES... iii STATEMENT OF THE CASE... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 2 RESPONSE TO ISSUE ONE... 2 UNDER THE CIRCUMSTANCES OF THIS CASE, THE TRIAL COURT WAS NOT REQUIRED TO ORALLY PRONOUNCE THE AMOUNT OF RESTITUTION AFTER ADUDICATING GUILT. APPELLANT S PRAYER FOR THE DELETION OF THE RESTITUTION ORDER SHOULD BE DENIED.... 2 RESPONSE TO ISSUE TWO... 2 THERE IS SUFFICIENT EVIDENCE TO SUPPORT THE AMOUNT OF RESTITUTION ORDERED IN THE JUDGMENT ADJUDICATING APPELLANT S GUILT.... 2 PRAYER... 11 CERTIFICATE OF SERVICE... 11 ii
INDEX OF AUTHORITIES Cases Abron v. State, 997 S.W.2d 281 (Tex. App. - Dallas 1998, pet. ref d)... 4, 5 Alexander v. State, No. 02-08-00282-CR, 2009 Tex. App. LEXIS 8834 (Tex. App. - Fort Worth Nov. 12, 2009, no pet. h.) (not yet published)... 5, 6 Armendariz v. State, 123 S.W.3d 401 (Tex. Crim. App. 2003)... 10 Brown v. State, No. 02-08-00063-CR, 2009 Tex. App. LEXIS 5155 (Tex. App. - Fort Worth July 2, 2009, no pet. h. ) (not designated for publication)... 5 Davis v. State, 968 S.W.2d 368 (Tex. Crim. App. 1998)... 4 Ditto and Ervin v. State, 988 S.W.2d 236 (Tex. Crim. App. 1999)... 8 Ex parte Cavazos, 203 S.W.3d 333 (Tex. Crim. App. 2006)... 5 Herndon v. State, 215 S.W.3d 901 (Tex. Crim. App. 2007)... 10 Lewis v. State, No. 03-09-00071-CR, 2009 Tex. App. LEXIS 2852 (Tex. App. Austin Apr. 24, 2009, no pet.) (not designated for publication)... 7 Manderson v. State, No. 05-05-00713-CR, 2005 Tex. App. LEXIS 8535 (Tex. App. Dallas Oct. 17, 2005, no pet.) (not designated for publication)... 8 Romero v. State, 800 S.W.2d 539 (Tex. Crim. App. 1990)... 10 Saenz v. State, No. 13-07-00575-CR, 2008 Tex. App. LEXIS 4247 (Tex. App. Corpus Christi June 12, 2008, no pet.) (not designated for publication)... 7, 8 iii
Taylor v. State, 131 S.W.3d 497 (Tex. Crim. App. 2004)... 4 Statutes TEX. CODE CRIM. PROC. ANN. art. 42.03, 1 (Vernon 2006)... 4 TEX. CODE CRIM. PROC. ANN. art. 42.12, 5(a) (Vernon 2006)... 4 TEX. CODE CRIM. PROC. ANN. Art. 42.12, sec. 5(b) (Vernon 2006)... 8 iv
TO THE HONORABLE COURT OF APPEALS: The State of Texas submits this brief in reply to the brief of Appellant. STATEMENT OF THE CASE On March 16, 2007, pursuant to a plea agreement, Appellant pled guilty to the allegations in an indictment charging him with the offense of theft in an amount between $20,000.00 and $100,000.00. (RR2: 5-6; CR: 2). Appellant confessed and stipulated to the evidence against him. (CR: 9). The court followed the terms of the plea agreement and placed Appellant on deferred adjudication community supervision for ten years, assessed a $1,000.00 fine, and ordered restitution in the amount of $25,202.39. (RR2: 6; CR: 7-8, 10-14). On October 21, 2008, the State filed a motion to adjudicate guilt, alleging that Appellant had violated three conditions of his community supervision. (CR: 18-19). Appellant entered a true plea to the allegations in the State s motion; he confessed and stipulated to the evidence of his violations of community supervision. In his confession and stipulation, Appellant admitted that he failed to pay restitution, though able to do so. (RR3: 7; CR: 21-22). The court granted the State s motion, sentenced Appellant to four years imprisonment, and announced that it would make restitution part of parole. (RR3: 18-19). The judgment includes a restitution order in the same amount reflected in the original plea agreement: $25,202.39. The judgment does not mention parole. (CR: 23). 1
SUMMARY OF ARGUMENT The trial court orally pronounced restitution after adjudicating Appellant s guilt. The trial court did not orally pronounce the amount of restitution ordered in the judgment, but it was not required to do so under the circumstances of this case. There is sufficient evidence to support the amount of restitution ordered in the judgment adjudicating Appellant s guilt of the indicted theft offense. ARGUMENT RESPONSE TO ISSUE ONE UNDER THE CIRCUMSTANCES OF THIS CASE, THE TRIAL COURT WAS NOT REQUIRED TO ORALLY PRONOUNCE THE AMOUNT OF RESTITUTION AFTER ADUDICATING GUILT. APPELLANT S PRAYER FOR THE DELETION OF THE RESTITUTION ORDER SHOULD BE DENIED. RESPONSE TO ISSUE TWO THERE IS SUFFICIENT EVIDENCE TO SUPPORT THE AMOUNT OF RESTITUTION ORDERED IN THE JUDGMENT ADJUDICATING APPELLANT S GUILT. The Appellant s Contentions Appellant raises two related issues challenging the order of restitution entered in the judgment. In his first issue, Appellant contends that this Honorable Court should delete the restitution order because the trial judge failed to orally pronounce the amount of restitution at the time it revoked his deferred adjudication community supervision and adjudicated his guilt. In a related second issue, Appellant contends that the evidence in the revocation hearing does not support the amount of restitution entered in the judgment, 2
and his case should be returned to the trial court for a hearing to determine the correct amount of restitution. Pertinent Facts On March 16, 2007, pursuant to a plea agreement, Appellant pled guilty to the allegations in an indictment charging him with the offense of theft in an amount between $20,000.00 and $100,000.00. (RR2: 5-6; CR: 2). Appellant confessed and stipulated to the evidence against him. (CR: 9). At the conclusion of trial, the court announced that it would follow the plea bargain agreement. It deferred adjudication and placed Appellant on community supervision for ten years. The court orally pronounced a $1,000.00 fine, and ordered restitution in the amount of $25,202.39, as reflected in the terms of the plea bargain agreement. (RR2: 6; CR: 7-8, 10-14). The amount of restitution represented what Appellant had stolen from John Snyder, owner of Papa John s Pizza restaurant. (RR3: 16). In the subsequent hearing on the State s motion to adjudicate guilt, Appellant admitted the truth of the State s allegation that he did not pay restitution as directed and at the time the State filed its motion to adjudicate, he was delinquent in the amount of $6,375.00. (RR3: 7). In addition, in the PLEA AGREEMENT (Motion to Revoke or Adjudicate) signed by Appellant, his attorney, the prosecutor, and the trial judge, Appellant stated that he failed to pay restitution, though he was able to do so. (CR: 22). The conditions of Appellant s community supervision provided that Appellant was to pay $421.00 per month in restitution. (CR: 13). At the revocation hearing, Appellant testified that he was supposed to make monthly restitution payments in the amount of 3
$480, $470 a month, something of that nature. (RR3: 9). This amount is obviously more than the monthly payment ordered in the conditions of community supervision. Appellant stated that he thought he would have ten years to pay off the restitution, but that he could get off probation sooner if all of it was paid. He arranged the paperwork to pay restitution in larger monthly payments. (RR3: 9). At the revocation hearing, Appellant testified that he had made some restitution payments. (RR3: 10). When asked, however, whether he knew how many restitution payments had been made, Appellant replied, No. I don t know if I was paying - - $300 a month, I believe, was what I was sending in as well as my court fees. (RR3: 10). Applicable Principles of Law and Conclusions A trial court s pronouncement of sentence is oral, while the judgment, including the sentence assessed, is merely the written declaration and embodiment of that oral pronouncement. See TEX. CODE CRIM. PROC. ANN. art. 42.03, 1 (Vernon 2006) (providing that sentence shall be pronounced in the defendant s presence ). When an accused receives deferred adjudication, no sentence is imposed. See Davis v. State, 968 S.W.2d 368, 371 (Tex. Crim. App. 1998); Abron v. State, 997 S.W.2d 281, 282 (Tex. App. - Dallas 1998, pet. ref d). When the accused violates a condition of community supervision, the court may proceed to adjudicate guilt and to assess punishment. TEX. CODE CRIM. PROC. ANN. art. 42.12, 5(a) (Vernon 2006); Taylor v. State, 131 S.W.3d 497, 499 (Tex. Crim. App. 2004). Thus, when guilt is adjudicated, the order adjudicating guilt sets aside the order deferring adjudication, including any previously imposed fines. Taylor, 131 S.W.3d at 501-02 (noting that deferred adjudication differs in 4
this regard from regular probation, where a fine orally pronounced at sentencing survives revocation of probation). In Abron, the order deferring adjudication assessed a fine as a condition of community supervision. The judge later adjudicated the defendant s guilt and did not orally pronounce a fine, but he did include the fine in the written judgment. Abron, 997 S.W.2d at 282. On appeal, this Honorable Court modified the judgment to delete the fine because it was not orally pronounced as part of the defendant s sentence. Id. As with a fine, restitution is punishment that is part of a defendant s sentence and, therefore, it must be included in the trial court s oral pronouncement of sentence to be properly included in the written judgment. Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006) (holding that restitution is punishment); Brown v. State, No. 02-08- 00063-CR, 2009 Tex. App. LEXIS 5155, at *2 (Tex. App. - Fort Worth July 2, 2009, no pet. h. ) (not designated for publication) (holding that restitution is punishment that is part of a defendant s sentence and, therefore, must be included in the trial court s oral pronouncement of sentence to be properly included in the written judgment). In Alexander v. State, No. 02-08-00282-CR, 2009 Tex. App. LEXIS 8834 (Tex. App. - Fort Worth Nov. 12, 2009, no pet. h.) (not yet published), pursuant to a plea bargain, Alexander pled guilty. The trial court placed Alexander on deferred adjudication community supervision, and he was ordered to pay restitution in the amount of more than $10,000.00 as a condition of his community supervision. After the State filed a motion to proceed to an adjudication of guilt, Alexander pled true to all allegations of his violations of community supervision. The trial court found the allegations were true, adjudicated 5
Alexander guilty, and sentenced him to ten years confinement. The trial court did not include a restitution order in its oral pronouncement of sentence, but the written judgment adjudicating guilt included an order that Alexander was to pay restitution. The appellate court ruled that the requirement that Alexander pay restitution must be included in the court s oral pronouncement of sentence to be properly included in the judgment. Id. at *1, 4-5. In Alexander, the appellate court reasoned that the judgment adjudicating Alexander's guilt, in effect, set aside the prior unadjudicated judgment entered by the trial court. That prior judgment included as an attached condition of his community service the requirement that Alexander pay restitution. The order did not exist after Alexander s guilt was adjudicated. Therefore, the trial court was required to make another oral pronouncement to include any of the terms of the prior unadjudicated judgment in the subsequent judgment adjudicating guilt. The subsequent order regarding payment of restitution was deleted for failure to pronounce restitution after adjudication of guilt. Id. at * 5-6. As in Alexander, Appellant entered a plea bargain having restitution as one of its terms. Here, in his plea bargain, Appellant agreed to pay $25,202.39 in restitution. Unlike the situation presented in Alexander, however, the trial court in Appellant s case did orally pronounce restitution in sentencing him after adjudicating his guilt. The court stated: I ll... make restitution part of parole. (RR3: 19). Clearly the trial court pronounced its intention to order restitution as punishment. 6
The trial court can recommend payment of restitution as a condition of parole, or it can assess restitution as part of the sentence. Lewis v. State, No. 03-09-00071-CR, 2009 Tex. App. LEXIS 2852, at *6 (Tex. App. Austin Apr. 24, 2009, no pet.) (not designated for publication). In this case, the restitution order does not mention parole. Evidently, the trial court was later made aware that it had no authority to order it as a condition of parole. Therefore, since the order in the judgment does not refer to a condition of parole, the restitution order is valid. The question which remains is whether the trial court was required to orally pronounce the amount of restitution at sentencing. This was not necessary under the circumstances of Appellant s case. In Saenz v. State, No. 13-07-00575-CR, 2008 Tex. App. LEXIS 4247 (Tex. App. Corpus Christi June 12, 2008, no pet.) (not designated for publication), Saenz entered into a plea bargain agreement which included as a term a stated amount of restitution to be paid. At the subsequent revocation hearing, the trial court informed Saenz that [y]our community service is hereby revoked, you re sentenced to ten years[ ] imprisonment along with payment of the unpaid balance of any fine to be imposed in this case, costs and restitution. In its written Adjudication of Guilt, the court noted that Saenz was ordered to pay the same amount of restitution agreed to in his plea agreement. Id. at *1-2. At sentencing after adjudicating Saenz s guilt, the trial court ordered restitution without stating the amount to be paid. When Saenz challenged the sufficiency of the court s oral pronouncement on appeal, the pronouncement of restitution was not found insufficient. 7
The rule requiring restitution to be re-pronounced after an order deferring adjudication is set aside and a defendant is adjudicated guilty results from the language of TEX. CODE CRIM. PROC. ANN. Art. 42.12, sec. 5(b) (Vernon 2006). This statute provides, After an adjudication of guilt, all proceedings... continue as if the adjudication of guilt had not been deferred. Therefore, if the order deferring adjudication is the only reflection of an amount which the defendant had been ordered to pay as restitution, then after the order deferring adjudication is set aside, nothing remains to reflect that restitution is in order or in what amount it should be made. Here, the circumstances differ. After the adjudication of Appellant s guilt, the parties continued as if adjudication had not been deferred. Therefore, this means that the order deferring adjudication (CR: 10-11) was set aside. It does not follow, however, that the original plea agreement was set aside or became a nullity. Ditto and Ervin v. State, 988 S.W.2d 236, 238 (Tex. Crim. App. 1999) (finding that where defendants were sentenced within the terms of the plea agreements, the plea bargains had been satisfied by the initial sentencing granting deferred adjudication probation); Manderson v. State, No. 05-05-00713-CR, 2005 Tex. App. LEXIS 8535, at *3 (Tex. App. Dallas Oct. 17, 2005, no pet.) (not designated for publication) (after an adjudication of guilt, all proceedings continue as if the adjudication of guilt had not been deferred, but because the defendant waived her right to a PSI at the plea hearing, that waiver carried forward to the adjudicating hearing). Appellant s plea agreement states the amount of restitution he agreed to pay to his victim. As in Saenz, in order to carry forward the stated amount of restitution in the prior 8
plea agreement, the trial court was not required to orally pronounce it again after adjudicating his guilt. The amount stated in the plea agreement carried forward absent proof that the amount owing had been diminished. There is conflicting evidence as to whether Appellant made any payments against the amount of restitution in this case. Appellant pled true to the State s allegation that he did not pay restitution as directed. (CR: 19). At the time the State filed the motion alleging this violation, Appellant was responsible for restitution payments for seventeen months. Condition (q) of the terms of his community supervision ordered him to pay $421.00 monthly as restitution. (CR: 13). Therefore, if he had not paid the seventeen monthly payments ordered, he would be owing at least $6,157.00 at the time the State filed its motion to adjudicate. The State s motion alleged that at that time, he was owing at least that amount and more; he was delinquent $6,375.00 when the motion was filed. (CR: 19). In Appellant s plea papers in connection with the revocation hearing, Appellant admitted that he failed to pay restitution. Where this admission is entered, there is a space provided where Appellant could have, but did not, allege that he actually paid any amount toward the total amount of restitution ordered. (CR: 22). Contrary to this blanket admission of his failure to pay restitution, Appellant gave inconsistent testimony at the revocation hearing. When asked whether he knew how many restitution payments had been made, Appellant replied, No. He also stated that he sent in $300 monthly for an unspecified time. This $300.00 amount, however, does not relate to the monthly restitution payments ordered, and it does not conform to his claim that he arranged to pay 9
more than the $421.00 monthly reflected in the terms of his community supervision. (RR3: 10). The conflict in the evidence does not require this Court to find error in the judgment. This Court must uphold the trial court s order if it is supported by the record and correct under any theory of law applicable to the case. See, e.g., Armendariz v. State, 123 S.W.3d 401, 404 (Tex. Crim. App. 2003); Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). This principle applies and requires this appellate court to uphold the restitution order on any legal theory applicable to the case even if the court purported to rely on an erroneous legal theory. Armendariz v. State, 123 S.W.3d at 404; see also Herndon v. State, 215 S.W.3d 901, 905 n.4 (Tex. Crim. App. 2007). Given the delinquent amount Appellant admitted that he was in arrears as of the time the State s motion was filed, and Appellant s blanket admission that he failed to pay restitution, this Court should uphold the trial court s order of the original $25,202.39 in restitution which was carried forward from the original plea bargain agreement when restitution was orally pronounced at sentencing after the adjudication of guilt. For all the foregoing reasons, Appellant s first and second issues should be overruled. 10
PRAYER The State prays that this Honorable Court will affirm the judgment of the trial court. Respectfully submitted, CRAIG WATKINS PATRICIA POPPOFF NOBLE Criminal District Attorney Assistant District Attorney Dallas County, Texas State Bar No. 15051250 Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas 75207-4399 (214) 653-3634 (214) 653-3643 fax CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing brief was served on Eric Stoebner, Assistant Public Defender, attorney for Appellant, Dallas County Public Defender s Office, 133 N. Industrial Blvd., LB2, Dallas, Texas 75207 by hand delivery, on January 12, 2010. PATRICIA POPPOFF NOBLE 11