1

CAUSE NO. 03-14-00616-CR

_________________________________________________

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS

AUSTIN DIVISION

_________________________________________________

ALEXIS MARIE IRELAND §

§

v. §

§

STATE OF TEXAS §

_______________________________________________

APPELLANT’S BRIEF

_______________________________________________

Justin Bradford Smith

Texas Bar No. 24072348

Harrell, Stoebner, & Russell, P.C.

2106 Bird Creek Drive

Temple, Texas 76502

Phone: (254) 771-1855

FAX: (254) 771-2082

Email: justin@templelawoffice.com

ATTORNEY FOR APPELLANT

ORAL ARGUMENT NOT REQUESTED

ACCEPTED

03-14-00616-CR

3888712

THIRD COURT OF APPEALS

AUSTIN, TEXAS

1/24/2015 3:34:55 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 1/26/2015 12:00:00 AM JEFFREY D. KYLE Clerk
2

IDENTITY OF PARTIES AND COUNSEL

Appellant

Alexis Marie Ireland

Appellant’s Counsel

Justin Bradford Smith

Harrell, Stoebner, & Russell, P.C.

2106 Bird Creek Drive

Temple, Texas 76502

Phone: (254) 771-1855

FAX: (254) 771-2082

Email: justin@templelawoffice.com

Appellant’s Trial Counsel

Jack Holmes

1610 South 31st Street, Suite 102, PMB 235

Temple, TX 76504

Appellee

State of Texas

Appellee’s Trial Counsel

Leslie McWilliams

Bell County District Attorney

P.O. Box 540

Belton, Texas 76513

Telephone: (254) 933-5215

Fax: (254) 933-5238

Appellee’s Appellate Counsel

Bob Odom 

Bell County District Attorney’s Office

Email: DistrictAttorney@co.bell.tx.us 
3

TABLE OF CONTENTS

Identity of Parties and Counsel.............................................................. 2

Table of Contents...........................................................................3-4

Index of Authorities........................................................................5-6

Statement of the Case.........................................................................7

Issues Presented...............................................................................7-8

ISSUE ONE: The judgment must be vacated as to restitution and a new 

 hearing ordered on the amount of restitution because the 

 evidence is insufficient to support a factual basis for the 

 full amount of restitution ordered in the written judgment, 

 and the record does not otherwise conclusively establish 

 the amount of restitution owed...................................7

ISSUE TWO: The judgment must be vacated as to court costs and a new 

 hearing ordered as to the amount owed because the record 

 suggests some payments were made towards court costs, 

 but the precise amount is unclear, and one cost appears 

 without a statutory basis...........................................7-8

Statement of Facts.........................................................................8-11

Summary of the Argument..............................................................11-14

ISSUE ONE: The judgment must be vacated as to restitution and a new 

 hearing ordered on the amount of restitution because the 

 evidence is insufficient to support a factual basis for the 

 full amount of restitution ordered in the written judgment, 

 and the record does not otherwise conclusively establish 

 the amount of restitution owed..................................11

Argument...................................................................................14-24

Standard of Review and Applicable Law.............................................14-16
4

Application................................................................................17-24

Conclusion....................................................................................24

Summary of the Argument.............................................................24-25

ISSUE TWO: The judgment must be vacated as to court costs and a new 

 hearing ordered as to the amount owed because the record 

 suggests some payments were made towards court costs, 

 but the precise amount is unclear, and one cost appears 

 without a statutory basis............................................24

Argument.................................................................................25-29

Standard of Review and Applicable Law.............................................25-26

Application...............................................................................26-29

Conclusion....................................................................................29

Prayer............................................................................................29

Certificate of Compliance...................................................................30

Certificate of Service........................................................................31
5

INDEX OF AUTHORITIES

Texas Court of Criminal Appeals:

Burt v. State, 396 S.W.3d 574 

(Tex. Crim. App. 2013).......................................................16, n. 1

Burt v. State, 445 S.W.3d 752

(Tex. Crim. App. 2014).....................................................15-18, 23

Brewer v. State, No. 1270-03, 2004 WL 3093224

(Tex. Crim. App. May 19, 2004) (unpublished)...........................19, n.2 

Campbell v. State, 5 S.W.3d 693

(Tex. Crim. App. 1999).............................................................16

Cartwright v. State, 605 S.W.2d 287

(Tex. Crim. App. 1980).........................................................14, 16

Cole v. State, 578 S.W.2d 127

(Tex. Crim. App. 1979).............................................................22

Davis v. State, 368 S.W.2d 368

(Tex. Crim. App. 1998).........................................................14, 17

Ex parte Cavazos, 203 S.W.3d 333

(Tex. Crim. App. 2006) (orig. proceeding)......................................15, 17

Gonzalez v. State, 117 S.W.3d 831

(Tex. Crim. App. 2003).............................................................14

Johnson v. State, 423 S.W.3d 385

(Tex. Crim. App. 2014)....................................................25-27 n. 4

Moff v. State, 131 S.W.3d 485

(Tex. Crim. App. 2004).............................................................16

Taylor v. State, 131 S.W.3d 497

(Tex. Crim. App. 2004).....................................................14-15, 17
6

Weir v. State, 278 S.W.3d 364

(Tex. Crim. App. 2006).........................................................15, 17

Texas Courts of Appeals:

Alexander v. State, 301 S.W.3d 361

(Tex. App.—Fort Worth 2009, no pet.)......................................15, 17

O’Neal v. State, 426 S.W.3d 242

(Tex. App.—Texarkana 2013, no pet.)...........................................14

Rusk v. State, 440 S.W.3d 694

(Tex. App.—Texarkana 2013, no pet.).......................................22-23

Sauceda v. State, 309 S.W.3d 767

(Tex. App.—Amarillo 2010, pet. ref’d)......................................15, 17

Tschirhart v. Tschirhart, 876 S.W.2d 507

(Tex. App.—Austin 1994, no writ)......................................20, 27 n. 4

Statutes/Rules:

Tex. Code Crim. Proc. Ann. 42.03, Section 1(a)........................................15

Tex. Code Crim. Proc. Ann. art. 42.12, Section 9(a)...................................19

Tex. Code Crim. Proc. Ann. art. 42.12, Section 9(j)...............................19 n. 2

Tex. Code Crim. Proc. Ann. art. 42.22...................................................28

Tex. Gov’t Code Section 103.024........................................................28
7

STATEMENT OF THE CASE

Nature of the Case: This is an appeal from the sentence imposed following an 

adjudication of guilt and revocation of community 

supervision. (VII R.R. at 6-7). In 2012, the trial court 

placed Appellant on deferred adjudication for five years 

for forgery by passing. (I C.R. at 28) (VI R.R. at 4). The 

State filed multiple motions to adjudicate, with the most 

recent motion being filed in 2014. (I C.R. at 33-35;56-

58; 71-73).

Judge/Court: Judge John Gauntt, 27th District Court, Bell County.

 

Pleas: Appellant pled true and the trial court held a sentencing 

hearing. (VI R.R. at 8) (VII R.R. at 1-9) (I C.R. at 82-

84).

Trial Court Disposition: Without hearing evidence, the trial court adjudicated

 Appellant guilty and sentenced her to two years in 

 the state jail. (VII R.R. at 4; 7). The written judgment 

imposes $1,922.57 in restitution and $572.00 in court 

 costs. (I C.R. at 92-93).

ISSUES PRESENTED

ISSUE ONE: The judgment must be vacated as to restitution and a new 

hearing ordered on the amount of restitution because the evidence is insufficient to 

support a factual basis for the full amount of restitution ordered in the written 

judgment, and the record does not otherwise conclusively establish the amount of 

restitution owed.

ISSUE TWO: The judgment must be vacated as to court costs and a new 

hearing ordered as to the amount owed because the record suggests some payments 
8

were made towards court costs, but the precise amount is unclear, and one cost 

appears without a statutory basis. 

STATEMENT OF FACTS

After being charged by information with forgery by passing (I C.R. at 5-6), 

Appellant pled guilty and received five years deferred adjudication. (II R.R. at 6; 

III R.R. at 5-8); (I C.R. at 14-18; 28-31). The court’s January 24, 2012 order 

deferring adjudication orders restitution in the amount of $1,922.57, (I C.R. at 30), 

which is the amount the court orally pronounced, (III R.R. at 6), payable in 

increments of $35.00 per month, and court costs in the amount of $246.00, payable 

in increments of $10.00 per month. (I C.R. at 30). The court also subjected 

Appellant to the typical conditions of community supervision, including 

prohibiting her from committing further offenses, ordering her to pay fees and 

restitution, ordering her to complete community services hours, and so forth. (I 

C.R. at 29-31). Appellant waived her right to appeal this order. (I C.R. at 25-27).

On May 17, 2012, the State filed the first of a series of motions to 

adjudicate. (I C.R. at 33-35). This motion alleged, among other things, that

Appellant failed to pay the restitution, and was “delinquent $105.00”, and that 

Appellant failed to pay court costs, and was “delinquent $30.00”. (I C.R. at 33). 

At the hearing on this motion, Appellant pled true, (IV R.R. at 7) (VIII R.R. at 
9

Second SX-1 “Judicial Stipulation”)), and the court accepted her plea, but declined 

to revoke her probation and instead added some jail time. (IV R.R. at 7; 15).

On February 12, 2013, the State filed its second motion to adjudicate and 

alleged, among other things, that Appellant had failed to pay restitution and was 

“delinquent $45.00”, and was delinquent $10.00 in court costs. (I C.R. at 56). 

This time, Appellant pled “not true” (V R.R. at 7), and after hearing evidence the 

court again declined to revoke Appellant’s probation, but instead continued her on 

the “terms and conditions of [her] probation as they are currently set out.” (V R.R. 

at 34). 

Among the evidence the court heard was testimony from the probation 

officer that Appellant “would have to continue making payments, and she would 

have to get current since she was behind previously.” (V R.R. at 12). Appellant 

was “behind on all kinds of payments”, (V R.R. at 15), and the probation officer 

believed Appellant was “a little over $1,000 behind.” (V R.R. at 16). The 

probation officer indicated this delinquency included: “Crime Stoppers, life skills, 

restitution, probation fees, court costs, PSI fees, substance abuse fees, substance 

abuse test fees.” (V R.R. at 16). Appellant’s boyfriend and her mother made a 

$100 payment toward her arrearages. (V R.R. at 21). The probation officer 

affirmed this $100 payment went towards the entire $1,000. (V R.R. at 22). 
10

On February 19, 2014, the State filed its third motion to adjudicate, which 

led to the court revoking Appellant’s probation and this appeal. (I C.R. at 71-73; 

85-87; 92-94) (VII R.R. at 7). Among other things, this motion alleged that 

Appellant failed to pay her restitution and was “delinquent $630.00”, and that 

Appellant was “delinquent $140.00” in payments towards court costs. (I C.R. at 

85). The principal basis of this motion, however, was that Appellant was accused 

of committing the new offense of burglary of a building. (I C.R. at 85; 87).

Appellant again pled true to the allegations (VI R.R. at 4-8) and signed an 

“Adjudication/Revocation Waivers, Agreements, Judicial Confession”. (I C.R. at 

82-84) (VIII R.R. at Third SX-1 (“Judicial Stipulation”)). The court found the 

evidence sufficient to find the allegations true, but withheld the finding to have a 

sentencing hearing. (VI R.R. at 9).

At the sentencing hearing, the State presented no evidence, “just argument”. 

(VII R.R. at 4-5). The court took judicial notice of its file, and at Appellant’s 

request, read the presentencing investigation report. (VII R.R. at 4). After brief 

arguments, (VII R.R. at 5-6), the court adjudicated Appellant guilty and revoked 

her probation. (VII R.R. at 7). 

The court then sentenced Appellant to two years in the state jail, stated she 

would have to pay court costs “in the amount of $5722 [sic]”, and stated she “will 
11

still owe whatever restitution remains unpaid of the original $19,232.57 [sic] that 

was previously ordered.” (VII R.R. at 7).

The court’s written judgment orders restitution in the amount of $1,922.57

and court costs in the amount of $572.00. (I C.R. at 92-94). The clerk’s record 

contains a bill of costs showing various amounts owed, including the full amount 

of restitution and a “State Elect Filing Fee—Crimi”. (I C.R. at 95-96). This appeal 

followed.

SUMMARY OF THE ARGUMENT

ISSUE ONE: The judgment must be vacated as to restitution and a new 

hearing ordered on the amount of restitution because the evidence is insufficient to 

support a factual basis for the full amount of restitution ordered in the written 

judgment, and the record does not otherwise conclusively establish the amount of 

restitution owed.

This is a case in which the trial court ordered restitution through oral 

pronouncement but failed to state the amount, so the restitution cannot be deleted, 

but the factual basis to support the amount of restitution ordered is lacking, so a 

new restitution hearing should occur. 

A defendant on deferred adjudication is not sentenced unless and until he is 

adjudicated guilty. Once adjudicated guilty, he is sentenced, but the original order 

deferring adjudication is set aside, including any fines or restitution ordered 
12

therein. Sentence must be orally pronounced to be valid: when there is a variance 

between the oral pronouncement of sentence and the written judgment, the oral 

pronouncement controls. Restitution is part of the sentence and thus must be orally 

pronounced. When the trial court orally pronounces restitution, but fails to state 

the amount, the remedy is to vacate the restitution order and remand for a new 

hearing on the amount of restitution if the record does not conclusively establish 

the amount of restitution ordered. Here, the trial court made restitution part of its 

oral pronouncement, but did not state an amount. Later, the written judgment 

contained a specific amount. The question is whether the evidence provides a 

factual basis to support the full amount of restitution.

The trial court received no evidence before orally pronouncing restitution, 

but simply read a presentence investigation report. This report would not 

ordinarily contain the amount of restitution owed, but rather the amount of 

restitution necessary to adequately compensate the victim—that is, the original, not 

the current, amount of restitution owed. Moreover, the trial judge’s own comment 

when including restitution in his oral pronouncement shows he did not know the 

amount of restitution that should be ordered.

Although the certified bill of costs states that the full amount of restitution is 

owed, this bill of costs was not prepared until after oral pronouncement of sentence 
13

and after the written judgment was signed. There is reason to think the bill of costs 

is inaccurate.

Prior to the instant motion to adjudicate, the State’s previous motions stated 

differing amounts in which Appellant was delinquent in restitution that cannot be 

squared with the amount which should have been owed if no payments were made 

at all, much less at $35.00 per month. In fact, the second motion, filed roughly 

nine months after the first, alleges Appellant was less delinquent in restitution fees 

than she was the first time—suggesting some payments were made. Appellant 

pled true to the first motion, but not the second. 

At the hearing on the second motion, it is undisputed that $100 was paid 

toward arrearages totaling about $1,000. These arrearages included money owed 

for restitution, so there is at least some evidence suggesting there may have been 

some money paid towards restitution fees.

Appellant pled true to the third motion, which alleged a delinquency that 

necessarily implies some payments were made.

Given the state of the record, the factual basis to support the amount of 

restitution ordered in the trial court’s judgment is lacking, and the actual amount 

owed is not conclusively established. Because it is undisputed, however, that some 

restitution is owed, and because restitution was orally pronounced, this Court 

should vacate the restitution order and remand for a new restitution hearing.
14

Alternatively, the Court should modify the judgment to reflect the amount of 

restitution Appellant would owe based on her plea of true to the third motion to 

adjudicate.

ARGUMENT

Standard of Review and Applicable Law

1. The Standard of Review is Abuse of Discretion

The appellate court reviews challenges to restitution orders under an abuse 

of discretion standard. O’Neal v. State, 426 S.W.3d 242, 246 (Tex. App.—

Texarkana 2013, no pet.); Cartwright v. State, 605 S.W.2d 287, 288-89 (Tex. 

Crim. App. 1980). A trial court abuses its discretion when it acts without reference 

to any guiding rules or principles or acts arbitrarily or unreasonably, or when its 

decision is so clearly wrong that it lies outside the zone of reasonable 

disagreement. Gonzalez v. State, 117 S.W.3d 831, 839 (Tex. Crim. App. 2003).

2. An Order Adjudicating Guilt Sets Aside the Order Deferring 

Adjudication, Including Any Fines or Restitution Imposed Therein

No sentence is imposed when a defendant receives deferred adjudication. 

See Davis v. State, 368 S.W.2d 368, 371 (Tex. Crim. App. 1998) (“strictly 

speaking, it [deferred adjudication] is not a probated or suspended sentence 

because there has not been a sentence”) (internal quotations omitted). When 

“guilt is adjudicated, the order adjudicating guilt sets aside the order deferring 

adjudication, including the previously imposed fine” and restitution. Taylor v. 
15

State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004) (fine); Alexander v. State, 301 

S.W.3d 361, 364 (Tex. App.—Fort Worth 2009, no pet.) (restitution).

3. When there is a Variance Between Oral Pronouncement of Sentence 

and a Court’s Written Judgment, the Oral Pronouncement Controls

A defendant’s sentence must be pronounced orally in his presence. Tex. 

Code Crim. Proc. Ann. 42.03, Section 1(a). “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.” Alexander, 301 

S.W.3d at 363. Thus, “when there is a conflict between the oral pronouncement 

and the written judgment, the oral pronouncement controls.” Burt v. State, 445 

S.W.3d 752, 757 (Tex. Crim. App. 2014). “A trial judge has neither the statutory 

authority nor the discretion to orally pronounce one sentence in front of the 

defendant, but then enter a different written judgment outside the defendant’s

presence.” Id. at 3.

4. Restitution is Punishment and as such, is Part of the Sentence that 

Must Be Orally Pronounced

Restitution is punishment. Weir v. State, 278 S.W.3d 364, 366 (Tex. Crim. 

App. 2006); Ex parte Cavazos, 203 S.W.3d 333, 338 (Tex. Crim. App. 2006) (orig. 

proceeding). As such, to be valid it must be part of the sentence orally 

pronounced. Burt, 445 S.W.3d at 760; Sauceda v. State, 309 S.W.3d 767, 769 

(Tex. App.—Amarillo 2010, pet. ref’d); Alexander, 301 S.W.3d at 364.
16

5. When the Trial Court Orally Pronounces Restitution, but Fails to 

State the Amount, the Restitution Order Must Be Vacated and a New 

Restitution Hearing Held If The Factual Basis to Support the 

Amount of Restitution Ordered is Lacking

“When the record is clear that the trial judge orally made restitution a part of 

the sentence, but...the amount...is unclear, incorrect, or insufficient...appellate 

courts should vacate the faulty order and remand for a new restitution hearing.” 

Burt, 445 S.W.3d at 754. Restitution must have a factual basis, see Campbell v. 

State, 5 S.W.3d 693, 696-97 (Tex. Crim. App. 1999), and therefore, “[d]ue process 

considerations thus implicated require that there must be evidence in the record to 

show that the amount [of restitution] set by the court has a factual basis.” 

Cartwright, 605 S.W.2d at 288-89. Thus Appellant’s claim, despite the variance 

between the oral pronouncement and the written judgment (which suggested there 

was a problem), is at heart a legal sufficiency claim: and 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.” Moff v. State, 131 S.W.3d 485, 

489 (Tex. Crim. App. 2004).1

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 1 Which makes error-preservation not an issue, as it was in what we might call “Burt I”. Burt v. 

State, 396 S.W.3d 574 (Tex. Crim. App. 2013) (considering whether two claims, fact that orally 

pronounced restitution differed from written judgment and fact that amount in written judgment 

improperly included losses from alleged victims not named in the indictment, were preserved).
17

Application

1. Restitution originally imposed was set aside when the court 

adjudicated guilt and imposed a sentence

Here, the Order of Deferred Adjudication ordered restitution in the amount 

of $1,922.57 at $35.00 per month, (I C.R. at 28-30), but this did not constitute a 

sentence. Davis, 368 S.W.2d at 371. That order was then set aside when the court 

adjudicated Appellant guilty and imposed a sentence. Taylor, 131 S.W.3d at 502; 

Alexander, 301 S.W.3d at 364. 

2. The court’s oral pronouncement of sentence mentioned that 

restitution would be ordered, but failed to state the amount

When Appellant pled true to the State’s motion to adjudicate guilt, the court 

did not pronounce her guilty at that time and impose a sentence. (VI R.R. at 9). 

Rather, the court held a sentencing hearing later, at which point the court 

adjudicated Appellant guilty. (VII R.R. at 7). When the court imposed sentence, 

the court stated Appellant would “still owe whatever restitution remains unpaid of 

the original $19,232.57 [sic] that was previously ordered.” (VII R.R. at 7). 

Restitution, as punishment, is part of the sentence, so it must be included in 

the oral pronouncement. Weir, 278 S.W.3d at 366; Ex parte Cavazos, 203 S.W.3d 

at 338; Sauceda, 309 S.W.3d at 769; Alexander, 301 S.W.3d at 364. Here, because 

restitution was orally pronounced, (VII R.R. at 7), the restitution order of 

$1,922.57 cannot be deleted. Burt, 445 S.W.3d at 760-761.
18

3. When the fact of restitution is ordered but not the amount, the 

restitution order must be vacated and a new restitution hearing held

Here, as in Burt, the trial judge “made restitution a part of his oral 

pronouncement of sentence”, so the “restitution order should not be deleted”. Burt, 

445 S.W.3d at 760. However, “the case should be remanded to the trial court for a 

hearing in which [A]ppellant will have to object to the amount, introduce evidence 

to support [her] position, and exercise all of [her] due process rights.” Id. This is 

because the fact, but not the amount, of restitution was orally pronounced. Id. at 

760-761. A remand should be conditioned, however, on the record not otherwise 

providing a factual basis to support the amount of restitution ordered, because Burt

stated the facts of its case “more comfortably [fell] within that body of our case 

law in which the trial judge has the authority to order restitution and did order 

restitution, but the evidence is insufficient to support the restitution amount 

ordered.” Burt, 445 S.W.3d at 760. Stated another way, unless the record 

otherwise conclusively establishes the amount of restitution owed, the appellate 

court should remand for a new restitution hearing. 

4. The record does not otherwise conclusively establish the amount of 

restitution ordered in the written judgment

When the trial judge orally pronounced sentence, he stated Appellant would 

owe “whatever restitution remains unpaid of the original $19,232.57 [sic] that was 

previously ordered.” (VII R.R. at 7). We may discount the precise amount in this 
19

quote, which is either a typographical error or a misstatement. What is certain is 

that the trial judge did not know what amount of restitution was owed—otherwise, 

he would not have said Appellant owes “whatever restitution remains unpaid”, but 

that she owes “_______, which remains unpaid”.

When the trial judge orally pronounced sentence, he had not received 

testimony or other documentary evidence because the prosecutor stated at the 

beginning of the hearing that “[w]e don’t have any evidence, just argument.” (VII 

R.R. at 4-5). The parties did not mention restitution during their closing 

arguments. (VII R.R. at 5-6).

The trial judge did review a presentence investigation report before orally 

pronouncing sentence, (VII R.R. at 4),2 but it is plain that this report did not 

contain the amount of restitution owed or else the judge could have easily found, 

and pronounced, the amount owed. In any event, the relevant statute does not 

require the report to contain the amount of restitution owed, just the amount 

necessary to compensate the victim adequately—the original, not the current, 

amount of restitution owed. Tex. Code Crim. Proc. art. 42.12, Sec. 9(a) (report 

must contain, among other things, the “amount of restitution necessary to 

adequately compensate a victim of the offense”). Therefore, we cannot speculate 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 2 This report is not part of the appellate record, but it is “not normally included in that record.” 

Brewer v. State, No. 1270-03, 2004 WL 3093224, at *4 (Tex. Crim. App. May 19, 2004) 

(unpublished); see Tex. Code Crim. Proc. art. 42.12, Sec. 9(j) (report is confidential).
20

as to whether the report contained the amount of restitution owed, and at any rate, 

the judge could have and no doubt would have ordered a precise amount had it 

been found in the report.

The bill of costs suggests the full amount is owed, but there is reason to 

believe this is incorrect. (I C.R. at 95).

The prosecutor requested that the trial judge take judicial notice of his file, 

including “the prior two motions to adjudicate and case histories attached thereto”, 

and the judge did so. (VII R.R. at 4). But this does not supply the missing 

evidence for two reasons. First, a trial court may take judicial notice “that a 

pleading has been filed”, but “may not, however, take judicial notice of the truth of 

allegations in its records.” Tschirhart v. Tschirhart, 876 S.W.2d 507, 508 (Tex. 

App.—Austin 1994, no writ) (emphasis in original). Hence, unless these motions 

and case histories are “formally admitted into evidence at trial, [the State] may not 

rely on [them] as evidence on appeal.” Id. at 509. 

Second, even if these motions could be relied on as evidence, they support 

the conclusion that some restitution was paid, and that a different amount would 

have been owed by the time of sentencing. 

On January 23, 2012, Appellant was ordered to pay restitution of $1,922.57 

at $35.00 per month. (III R.R. at 6); (I C.R. at 30). Assuming her first payment 

was due in February 2012, then the first motion to revoke, filed in May 2012, 
21

alleges an amount, $105.00, that would correctly reflect the delinquency if 

Appellant made no payments at all up to that point. (I C.R. at 33) (three months 

times $35 equals $105). Appellant pled true to this motion. (IV R.R. at 7).

However, nine months later in February 2013, the State filed a motion to 

revoke alleging that Appellant was only $45.00 delinquent. (I C.R. at 56-57). On 

its face, this shows that something was paid, because the alleged delinquency is 

less now than it was before. In fact, it suggests $375 was paid. If Appellant paid 

nothing from February 2012 until February 2013, she would owe $420 ($35 x 12 

=$420). If she is alleged to be only $45 delinquent, then she must have paid $375 ( 

$420 - $45 = $375). While Appellant pled not true to this motion, (V R.R. at 7), 

at the hearing it was clear that $100 was paid towards Appellant’s approximately 

$1,000 arrearages, which included restitution. (V R.R. at 16; 21-22). Hence, this 

second motion and the hearing together support the conclusion that some payments 

were made towards restitution, though they seem insufficient to determine 

precisely what amount. 

In the third motion to revoke, filed in February 2014, the State alleged 

Appellant was $630.00 delinquent in restitution fees. (I C.R. at 85-86). Again, 

this supports the conclusion that something less than the full amount of restitution 

was owed, because if Appellant had paid nothing for two years, she would have 

been delinquent $840 ($35 x 24 = $840). Or, if she was only $45 behind a year 
22

before, she would have been $465 behind in February 2014 if nothing was paid in 

the interim ($35 x 12 = $420 + $45 = $465). Appellant pled true to this motion. 

(VI R.R. at 8).

Based on the foregoing, three conclusions are true: first, that the State 

alleged and Appellant agreed (by pleading true) that some restitution was paid; 

second, the factual basis for ordering the full amount of restitution is lacking; and 

third, we cannot determine what amount is actually owed from this record. 

Therefore, this Court should vacate the restitution order and remand for a new 

hearing on the amount of restitution only.3

5. Alternatively, the Court should vacate the restitution order and 

 modify the judgment to reflect the amount of restitution that would 

 be owed based on the third motion to adjudicate.

A plea of true by itself is sufficient to support revocation of community 

supervision. Cole v. State, 578 S.W.2d 127, 128 (Tex. Crim. App. 1979). Thus, a 

plea of true “relieves the State of its evidentiary burden.” Rusk v. State, 440 

S.W.3d 694, 703 (Tex. App.—Texarkana 2013, no pet.). Here, Appellant pled true 

to the third motion to revoke, so the question arises whether she is estopped from 

challenging the amount alleged to be delinquent in the third motion. If so, then the 

Court should modify the judgment to reflect that she owes restitution in the amount 

of $1,712.57, which would represent the difference between what the delinquency 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 3 Or on court costs and restitution only, if the Court agrees with Appellant on issue two.
23

would have been ($840) if Appellant made no payments whatsoever and thus owed 

the full amount ($1,922.57), and the amount the State alleged Appellant was 

actually delinquent ($630).

In this case, as shown above, the record discloses various amounts of 

restitution owed or alleged to be owed at different times: in fact, one allegation 

suggests Appellant paid more than $210, (I C.R. at 56 (suggesting she paid $375)), 

and two out of the three allegations support the conclusion that some restitution 

was paid (I C.R. at 56; 85), as does the record of the hearing on the second motion 

to adjudicate. (V R.R. at 16; 21-22). Therefore, the record casts doubt on the 

actual amount of restitution owed, despite Appellant’s plea of true. Given that, in 

addition to “providing justice to victims” we must also be concerned about a 

“defendant’s due-process rights”, Burt, 445 S.W.3d at 755, the safest and most just 

course of action is to remand for a new restitution hearing to confirm the actual 

amount of restitution owed. After all, the bill of costs alleges the full amount is 

owed, (I C.R. at 96), so if this is correct a remand would serve the purpose of 

restoring “the victim to the ‘status quo ante’ position he was in before the offense”, 

while ensuring that this restitution “serves as appropriate punishment” for 

Appellant. Burt, 445 S.W.3d at 756. For these reasons, the Court should not 

become guilty of a “robotic application” of the plea of not true. Rusk, 440 S.W.3d 

at 703.
24

However, if the Court disagrees, then the Court should modify the judgment 

to reflect that $1,712.57 is ordered in restitution, for the reasons given above.

Conclusion

The restitution order in the judgment must be vacated, and the case 

remanded to the trial court for a new hearing on the proper amount of restitution. 

Alternatively, the Court should modify the judgment to reflect that $1,712.57 is 

owed in restitution.

SUMMARY OF THE ARGUMENT

ISSUE TWO: The judgment must be vacated as to court costs and a new 

hearing ordered as to the amount owed because the record suggests some payments 

were made towards court costs, but the precise amount is unclear, and one cost 

appears without a statutory basis. 

Court costs may be challenged for the first time on appeal. The reviewing 

court determines if there is a basis for the costs and if the facts support them, but 

traditional legal sufficiency principles do not apply.

The bill of costs states that no payments on court costs have been paid at all. 

Appellant pled true to the State’s third motion to adjudicate, which alleged she was 

delinquent $140 in court costs out of the initial $246.00, which she was to pay at a 

rate of $10.00 per month. Because this motion was filed twenty-four months after 

Appellant was to begin making payments of $10.00 per month, if Appellant had 
25

truly paid nothing she would have been delinquent $240.00 in court costs. This 

suggests at least $100 was paid. The second motion to adjudicate, filed twelve 

months after Appellant was to begin paying, alleges a delinquency of only $10, 

suggesting, again, that Appellant paid some court costs. While Appellant did not 

pled true to this motion, at the hearing on the motion there was evidence that $100 

was paid towards her $1,000 arrearages. Therefore, again, there is some evidence 

that something was paid. However, because the record does not support a 

conclusive amount, it is not possible for this court to modify the judgment and 

affirm; instead, a remand is necessary.

There also does not seem to be a statutory basis for the “State Elect Filing 

Fee—Crimi”, so on remand this fee should not be permitted to be imposed.

Alternatively, the Court could take the alleged delinquency in the last 

motion to adjudicate as reflecting the true amount of court costs paid, delete the 

above-referenced fee, and then modify the judgment.

ARGUMENT

Standard of Review and Applicable Law

 A challenge to the bases of assessed court costs may be raised for the first 

time on appeal. Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014).

When reviewing the record supporting court costs, the appellate court determines 

whether there is a “basis for the cost”, not whether there is “sufficient evidence 
26

offered at trial to prove each cost”. Id. at 390. Thus, “traditional Jackson 

evidentiary sufficiency principles do not apply.” Id.

 Court costs need not be “orally pronounced nor incorporated by reference in 

the judgment to be effective.” Id. at 389. Therefore, “when a specific amount of 

court costs is written in the judgment, an appellate court errs when it deletes the 

specific amount if there is a basis for the cost.” Id. Still, only “statutorily 

authorized court costs may be assessed against a criminal defendant”. Id. Thus, 

when evaluating court costs, the reviewing court determines whether there is a 

statutory basis for the costs and whether there are facts to support them. Id. at 395-

396.

Application

This is really the mirror image of the restitution argument in issue one, so 

the argument will parallel part of that argument. However, it should be 

emphasized that Appellant only challenges the statutory basis for one of the 

assessed costs; for the most part, she argues that the factual basis is lacking to 

support the reflection in the bill of costs that no payments have been made at all. 

On January 23, 2012, Appellant was ordered to pay court costs of $246 at 

$10.00 per month. (III R.R. at 6); (I C.R. at 30). Assuming her first payment was 

due in February 2012, then the first motion to revoke, filed in May 2012, alleges an 

amount, $30.00, that would correctly reflect the delinquency if Appellant made no 
27

payments at all up to that point. (I C.R. at 33) (three months times $10 equals 

$30). Appellant pled true to this motion.4 (IV R.R. at 7).

However, nine months later in February 2013, the State filed a motion to 

revoke alleging that Appellant was only $10.00 delinquent. (I C.R. at 56-57). On 

its face, this shows that something was paid, because the alleged delinquency is 

less now than it was before. In fact, it suggests $110 was paid. If Appellant paid 

nothing from February 2012 until February 2013, she would owe $120 ($10 x 12 

=$120). If she is alleged to be only $10 delinquent, then she must have paid $110 ( 

$120 - $10 = $110). While Appellant pled not true to this motion, (V R.R. at 7), at 

the hearing it was clear that $100 was paid towards Appellant’s approximately 

$1,000 arrearages, which included court costs. (V R.R. at 16; 21-22). Hence, this 

second motion and the hearing together support the conclusion that some payments 

were made towards court costs, though they seem insufficient to determine 

precisely what amount. 

In the third motion to revoke, filed in February 2014, the State alleged 

Appellant was $140.00 delinquent in court costs. (I C.R. at 85-86). Again, this 

supports the conclusion that something less than the full amount of court costs was

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 4 The trial court took judicial notice of its file, (VII R.R. at 4), and just as in issue one, the court 

could not have taken judicial notice of the truth of the allegations of any motions in its file nor 

may the State now rely on any such motions as evidence if not formally admitted into evidence 

during the revocation hearing. Tschirhart v. Tschirhart, 876 S.W.2d 507, 508-09 (Tex. App.—

Austin 1994, no writ). However, because court costs need not be orally pronounced nor do 

traditional sufficiency of the evidence rules apply, Johnson, 423 S.W.3d at 390, this is less 

important here than in issue one. 
28

still owed, because if Appellant had paid nothing for two years, she would have 

been delinquent $240 ($10 x 24 = $240). Or, if she was only $10 behind a year 

before, she would have been $130 behind in February 2014 if nothing was paid in 

the interim ($10 x 12 = $120 + $10 = $130). Appellant pled true to this motion. 

(VI R.R. at 8).

Based on the foregoing, three conclusions are true: first, that the State 

alleged and Appellant agreed (by pleading true) that some court costs were paid; 

second, the factual basis for ordering the full amount of court costs is lacking; and 

third, we cannot determine what amount is actually owed from this record. 

Therefore, this Court should vacate the court costs and remand for a new hearing 

on the amount of court costs only.

5

On remand, the trial court should be prohibited from imposing the cost for 

“State Elect Filing Fee—Crimi” in the amount of $5.00. (I C.R. at 95). This is 

because Appellant cannot determine the statutory basis for this fee. It is possible it 

comes from Texas Government Code Section 103.024, which allows for a $5 fee 

for filing a restitution lien under Article 42.22 of the Texas Code of Criminal 

Procedure. However, section 5 of that article requires an affidavit to be filed to 

perfect the restitution lien. Here, no such affidavit appears in the record. 

Therefore, either the fee is without a statutory basis, or if the statutes just cited 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! 5 Or on court costs and restitution only, if the Court agrees with Appellant on issue one.
29

provide that basis, then the factual predicate for assessment of the fee is lacking. 

In either event, the fee should be deleted.

If the Court believes Appellant’s plea of true to the third motion provides a 

sufficient basis to determine the amount of costs owed, then the Court should 

modify the judgment to reduce the amount of court costs owed by $105 ($100 for 

the payments suggested by the allegation in the motion and $5 for the “State Elect 

Filing Fee—Crimi”). 

Conclusion

The Court should delete the “State Elect Filing Fee—Crimi” fee, vacate the 

rest of the judgment concerning court costs, and remand for a hearing to determine 

the amount of costs actually owed, as well as the amount of restitution actually 

owed if the Court agrees with Appellant on issue one.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant asks this Court to 

VACATE the trial court’s judgment as argued above and REMAND for a new 

hearing on restitution and court costs. In the alternative, the Court should 

MODIFY the judgment to reflect $1,712.57 in restitution owed. In addition, the 

Court should MODIFY the judgment to reflect court costs owed in the amount of 

$105.
30

Respectfully submitted:

/s/ Justin Bradford Smith 

Justin Bradford Smith

Texas Bar No. 24072348

Harrell, Stoebner, & Russell, P.C.

2106 Bird Creek Drive

Temple, Texas 76502

Phone: (254) 771-1855

FAX: (254) 771-2082

Email: justin@templelawoffice.com

ATTORNEY FOR APPELLANT

CERTIFICATE OF COMPLIANCE

I hereby certify that, pursuant to Rule 9 of the Texas Rules of Appellate 

Procedure, Appellant’s Brief contains 5,107 words, exclusive of the caption, 

identity of parties and counsel, statement regarding oral argument, table of 

contents, index of authorities, statement of the case, statement of issues presented, 

statement of jurisdiction, statement of procedural history, signature, proof of 

service, certification, certificate of compliance, and appendix.

/s/ Justin Bradford Smith 

Justin Bradford Smith
31

CERTIFICATE OF SERVICE

I hereby certify that on January 24, 2015, a true and correct copy of 

Appellant’s Brief was forwarded to the counsel below by eservice:

Bob Odom

Bell County District Attorney’s Office

P.O. Box 540

Belton, Texas 76513

Email: DistrictAttorney@co.bell.tx.us

/s/ Justin Bradford Smith 

Justin Bradford Smith