NOS. 12-13-00284-CR

 12-13-00285-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MONIQUE ANTOINETTE DEVERAUX, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

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§

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APPEALS FROM THE 241ST 

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Monique Antoinette Deveraux appeals the trial court’s orders revoking her deferred 

adjudication community supervision. Appellant was sentenced to imprisonment for four years in 

each cause for her two convictions of manufacture or delivery of a controlled substance in a drug 

free zone. In two issues, Appellant contends that the trial court abused its discretion in not 

crediting her sentence for the time she served in a Substance Abuse Felony Punishment Facility 

(SAFPF) and assessing costs against her as attorney’s fees. We modify and affirm as modified.

BACKGROUND

Appellant was charged by separate indictments with two offenses of manufacture or 

delivery of a controlled substance in a drug free zone. She pleaded “guilty” to each charged 

offense. The trial court deferred finding Appellant “guilty” and placed her on community 

supervision for ten years in each cause. As a condition of Appellant’s community supervision, 

the trial court ordered that she serve a term of at least ninety days of confinement and treatment 

at a SAFPF and, thereafter, participate in a drug or alcohol abuse continuum of care treatment 

plan (aftercare program) until discharged from the aftercare program.
2

On July 9, 2013, the State filed a motion to proceed to final adjudication in each cause 

alleging that Appellant had violated certain terms and conditions of her community supervision. 

One allegation the State made was that Appellant failed to participate in the aftercare program as 

ordered.

On August 19, 2013, the trial court conducted a hearing on the State’s motion. At the 

commencement of the hearing, Appellant pleaded “not true” to the allegations. Following the 

presentation of evidence, the trial court found that Appellant violated the terms and conditions of 

her community supervision as alleged in the State’s motion. Thereafter, in each cause, the trial 

court adjudicated Appellant “guilty” of manufacture or delivery of a controlled substance in a 

drug free zone, revoked Appellant’s community supervision, and sentenced Appellant to 

imprisonment for four years. Despite Appellant’s request, the trial court refused to credit 

Appellant’s sentences with the time she served in the SAFPF.1 The trial court further ordered 

that Appellant pay court costs. These appeals followed.

CREDIT FOR TIME SERVED IN SAFPF

In her first issue, Appellant argues that the trial court abused its discretion in denying her 

request for credit against her sentences for the amount of time she served in the SAFPF. The 

State filed a letter brief in which it agreed with Appellant’s contention.

Standard of Review and Governing Law

We review decisions made by the trial court regarding the revocation of community 

supervision for an abuse of discretion. See Johnson v. State, 386 S.W.3d 347, 349 (Tex. App.–

Amarillo 2012, no pet.). The trial court abuses its discretion when it applies an erroneous legal 

standard, or when no reasonable view of the record could support its conclusion under the correct 

law and facts viewed in the light most favorable to its legal conclusion. See Lanum v. State, 952 

S.W.2d 36, 39 (Tex. App.–San Antonio 1997, no writ). The trial court has broad discretion over 

the revocation and modification of community supervision. See Becker v. State, 33 S.W.3d 64, 

66 (Tex. App.–El Paso 2000, no pet.).

Texas Code of Criminal Procedure, Article 42.12, Section 23(b) states as follows:

 

1 The record reflects that Appellant served 272 days in the SAFPF from September 4, 2012, until June 3, 

2013. The trial court credited Appellant 265 days for the time she served in jail.
3

No part of the time that the defendant is on community supervision shall be considered as any part 

of the time that he shall be sentenced to serve, except that on revocation, the judge shall credit to 

the defendant time served by the defendant as a condition of community supervision in a 

substance abuse treatment facility operated by the Texas Department of Criminal Justice under 

Section 493.009, Government Code, or another court-ordered residential program or facility, but 

only if the defendant successfully completes the treatment program in that facility.

TEX. CRIM. PROC. CODE ANN. art. 42.12, § 23(b) (West Supp. 2013).

The Thirteenth Court of Appeals considered this issue under similar facts in Woodard v. 

State, No. 13-09-00694-CR, 2011 WL 2732669, at *3–4 (Tex. App.–Corpus Christi July 14,

2011, no pet.) (mem. op., not designated for publication). There, the court of appeals considered 

the language used in Section 23(b) and noted that the legislature required the substance abuse 

program to be completed in “that facility.” Id. at *3. The court concluded from this language 

that the legislature did not intend that a defendant was required to successfully complete 

treatment in a subsequent program in order to receive credit for the completion of the first 

program. Id. (citing Burke v. State, Nos. 03-09-00543-CR, 03-09-00544-CR, 2010 WL 

3431675, at *4 (Tex. App.–Austin Aug. 31, 2010, pet. ref’d) (mem. op., not designated for 

publication)). Based on our reading of Section 23(b), we agree with the conclusion of our sister 

court in Woodard and likewise hold that Section 23(b) does not require that a defendant 

successfully complete treatment in a subsequent program to receive credit on her sentence for 

time served in a SAFPF. Accordingly, we hold that the trial court abused its discretion in failing 

to credit Appellant’s sentences with the time she served in the SAFPF. Appellant’s first issue is 

sustained.

ATTORNEY’S FEES

In her second issue, Appellant argues that, because she is indigent, the trial court 

improperly assessed $300.00 in court costs as attorney’s fees against her in each cause. In its 

letter brief, the State concedes that the assessment of attorney’s fees in these causes is improper. 

The judgment of conviction reflects that the trial court assessed $678.00 in court costs. 

The judgment includes a document identified as “Attachment A Order to Withdraw Funds,” 

which states that Appellant has incurred “[c]ourt costs, fees and/or fines and/or restitution” in the 

amount of $678.00. The certified bill of costs itemizes the court costs imposed, which also total 

$678.00.
4

The record reflects that the trial court determined Appellant was indigent in each cause, 

and there is no evidence to rebut the presumption that Appellant’s indigence continued 

throughout the remainder of the proceedings. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p); 

Wolfe, 377 S.W.3d at 144. As a result, the evidence is insufficient to support the imposition of 

attorney’s fees as court costs. See TEX. CODE CRIM. PROC. ANN. arts. 26.04(p), 26.05(g) (West 

Supp. 2013); Mayer v. State, 309 S.W.3d 552, 553 (Tex. Crim. App. 2010); Wolfe v. State, 377 

S.W.3d 141, 146 (Tex. App.–Amarillo 2012, no pet.). Therefore, we hold that the trial court 

abused its discretion in assessing costs as attorney’s fees against Appellant. Appellant’s second 

issue is sustained.

CONCLUSION

We have sustained Appellant’s first and second issues. Accordingly, we modify the trial 

court’s judgment in each cause to reflect that the time credited against Appellant’s sentence is 

537 days. See TEX. R. APP. P. 43.2(b). Furthermore, we modify the trial court’s judgment in 

each cause to reflect that the amount of court costs is $378.00. Id. We also modify Attachment 

A to state that the total amount of “court costs, fees and/or fines and/or restitution” is $378.00. 

See, e.g., Reyes v. State, 324 S.W.3d 865, 868 (Tex. App.–Amarillo 2010, no pet.). We affirm

the trial court’s judgment as modified.

JAMES T. WORTHEN

Chief Justice

Opinion delivered March 12, 2014.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MARCH 12, 2014

NO. 12-13-00284-CR

MONIQUE ANTOINETTE DEVERAUX,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 241st District Court 

of Smith County, Texas (Tr.Ct.No. 241-0137-12)

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 the Court that the trial court’s 

judgment below should be modified and, as modified, affirmed.

It is therefore ORDERED, ADJUDGED and DECREED that the trial 

court’s judgment below be modified to reflect that the time credited against Appellant’s sentence 

is 537 days and that the amount of court costs is $378.00; that Attachment A be modified to 

reflect that the total amount of “court costs, fees and/or fines and/or restitution” is $378.00; and 

as modified, the trial court’s judgment is affirmed; and that this decision be certified to the trial 

court below for observance.

James T. Worthen, Chief Justice.

Panel consisted of Worthen, C.J., Griffith, and Hoyle, J.
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MARCH 12, 2014

NO. 12-13-00285-CR

MONIQUE ANTOINETTE DEVERAUX,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 241st District Court 

of Smith County, Texas (Tr.Ct.No. 241-0138-12)

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 the Court that the trial court’s 

judgment below should be modified and, as modified, affirmed.

It is therefore ORDERED, ADJUDGED and DECREED that the trial 

court’s judgment below be modified to reflect that the time credited against Appellant’s sentence 

is 537 days and that the amount of court costs is $378.00; that Attachment A be modified to 

reflect that the total amount of “court costs, fees and/or fines and/or restitution” is $378.00; and 

as modified, the trial court’s judgment is affirmed; and that this decision be certified to the trial 

court below for observance.

James T. Worthen, Chief Justice.

Panel consisted of Worthen, C.J., Griffith, and Hoyle, J.