No. 06-14-00032-CR

 

IN THE COURT OF APPEALS 

SIXTH DISTRICT OF TEXAS 

AT TEXARKANA 

 

DEVON RAY DAVIS 

APPELLANT 

v.

THE STATE OF TEXAS, 

APPELLEE 

On Appeal from the 196th Judicial District Court 

Of Hunt County, Texas 

Trial Court Cause 22,886 

Hon. Joe M. Leonard, Judge Presiding 

 

APPELLANT’S BRIEF

 

Katherine A. Ferguson (SBN 06918050)

Renshaw, Davis & Ferguson, L.L.P.

2900 Lee Street, Suite 102

P.O. Box 21

Greenville, Texas 75403-0021

Telephone: (903) 454-6050

Facsimile: (903) 454-4898

Email: rdflawoffice@yahoo.com

ORAL ARGUMENT NOT REQUESTED

ACCEPTED

06-15-00032-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

6/25/2015 9:06:52 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 6/26/2015 9:22:00 AM DEBBIE AUTREY Clerk
IDENTITIES OF PARTIES AND COUNSEL

Appellant: Devon Ray Davis

Defense Counsel at Trial: Jeffrey Jackson

1400 Preston Road, Suite 400

Plano, Texas 75093

 

Appellant’s Attorney on Appeal: Katherine A. Ferguson

 Renshaw, Davis & Ferguson, L.L.P.

2900 Lee Street, Suite 102

P.O. Box 21

Greenville, Texas 75403-0021

Appellee’s Attorney at Trial: Calvin Grogan

Assistant District Attorney

Hunt Co. District Attorney

P.O. Box 441

Greenville, Texas 75403-0441

Appellee’s Attorney on Appeal: Calvin Grogan

Assistant District Attorney

Hunt Co. District Attorney

P.O. Box 441

Greenville, Texas 75403-0441

Trial Judge: Hon. Joe M. Leonard

196th Judicial District Court

P.O. Box 1097

Greenville, Texas 75403-1097
TABLE OF CONTENTS

Identities of Parties and Counsel ..............................................ii

Table of Contents...............................................................iii

Index of Authorities.................................................................iv

Statement of the Case...............................................................2

Issues Presented ................................................................ 3

Statement of Facts .............................................................3

Summary of the Argument ................................................... 7

Argument and Authorities ..........................................................8

ISSUE NUMBER ONE .......................................................8

THE TRIAL COURT ERRED IN ENTERING 

THE JUDGMENT BECAUSE IT VARIES FROM 

THE ORAL PRONOUNCEMENT OF 

SENTENCE.

ISSUE NUMBER TWO:

THE TRIAL COURT ERRED IN 

ASSESSING ATTORNEY’S FEES AND 

UA FEES BECAUSE THE RECORD 

DOES NOT ESTABLISH APPELLANT 

HAD THE ABILITY TO PAY

PRAYER....................................................................................10

CERTIFICATE OF SERVICE..................................................11

CERTIFICATE OF COMPLIANCE .......................................11
INDEX OF AUTHORITIES

Cases

Armstrong v. State, 340 S.W.3d 759 (Tex. Crim. App. 2011) ..............10

Cates v. State, 402 S.W.3d 250 (Tex. Crim. App. 2013) ............... ...10

Coffey v. State, 979 S.W.2d 326 (Tex. Crim. App. 1998) ............ .......8

Ex Parte Madding, 70 S.W.3d 131 (Tex. Crim. App 2002) ..................8

Martin v. State, 405 S.W.944 (Tex. App. – Texarkana 2013, no pet.) ...10

Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010) .................10

Statutes and Rules

TEX. CODE CRIM. PROC. art 26.05(g) ..........................................9
No. 06-14-00032CR

IN THE COURT OF APPEALS

SIXTH DISTRICT OF TEXAS

AT TEXARKANA

DEVON RAY DAVIS

APPELLANT

v.

THE STATE OF TEXAS,

APPELLEE

On Appeal from the 196th Judicial District Court

Of Hunt County, Texas

Trial Court Cause 22,886

Hon. Joe M. Leonard, Judge Presiding

 

APPELLANT’S BRIEF

TO THE HONORABLE COURT OF APPEALS:

NOW COMES Appellant, DEVON RAY DAVIS, and respectfully 

submits this brief in support of his appeal of the judgment of the 196th 

Judicial District Court of Hunt County, Texas, the Honorable Joe M. 

Leonard, presiding.
STATEMENT OF THE CASE

The Appellant, DEVON RAY DAVIS, was charged with the offense 

of robbery. (CR 10). The indictment also included three enhancement 

paragraphs, which increased the range of punishment for the offense to a 

minimum of twenty-five (25) years up to ninety-nine (99) years or life in 

prison. (CR 11-12). Appellant entered into a plea agreement wherein 

Appellant was placed on ten (10) years deferred probation, a $500.00 fine, 

with SAFP and violence terms, as well as court costs. (CR 18) Appellant 

was placed on probation on October 10, 2005. (CR 23-32). On July 7, 2009 

Appellant’s probation was amended. (CR 39) On May 5, 2010, a Motion to 

Revoke Deferred Adjudication Community Supervision and Request for 

Final Adjudication (“Motion to Revoke”) was filed. (CR 42) The Motion 

to Revoke was again filed on August 12, 2013. (CR 64) Appellant’s 

conditions of probation were further amended on November 6, 2013 and the 

Motion to Revoke was dismissed without prejudice. (CR 81-82) The Hunt 

County Probation Department requested a violation review hearing on 

September 23, 2014 (CR 87). On October 30, 2014 the Second Motion to 

Revoke Deferred Adjudication Community Supervision and Request for 

Final Adjudication was filed (CR 94). Thereafter, an Amended Second 

Motion to Revoke Deferred Adjudication Community Supervision and 
Request for Final Adjudication (“Amended Second Motion to Revoke”) was 

filed on November 20, 2014. (CR 120) A hearing was held on the 

Amended Second Motion to Revoke on December 16, 2014. (RR Vol. 1) 

After hearing testimony, the Trial Court then revoked DEVON RAY 

DAVIS’ probation and sentenced him to sixty (60) years in the Texas 

Department of Corrections, Institutional Division. The written judgement 

imposed $1,970.00 in attorney’s fees, an additional $367.00 in attorney’s 

fees, and $122 UA fee. (CR 122) Appellant filed a pro se notice of appeal 

on January 14, 2015. (CR 132) This appeal is taken therefrom.

ISSUES PRESENTED

ISSUE NUMBER ONE: THE TRIAL COURT ERRED IN ENTERING 

THE JUDGMENT BECAUSE IT VARIES FROM 

THE ORAL PRONOUNCEMENT OF 

SENTENCE.

ISSUE NUMBER TWO: THE TRIAL COURT ERRED IN ASSESSING 

ATTORNEY’S FEES AND UA FEES BECAUSE 

THE RECORD DOES NOT ESTABLISH 

APPELLANT HAD THE ABILITY TO PAY

STATEMENT OF FACTS

Devon Ray Davis (hereinafter, “Appellant”) was indicted for the 

offense of robbery. (CR 1)

1

 He plead guilty to that offense (CR 19) as well 

as pleading true to the enhancement paragraphs in the indictment. (CR 23) 

 

1 References to the Clerk’s Record are designated as “CR #”, references to the Reporter’s Record are 

designated RR Vol. ___, page #: line #, and State and Defendant’s exhibits are designated SX and DX, 

respectively)
Appellant was admonished about the range of punishment as well as the 

consequences of his plea. (CR 19, 20) Appellant was placed on ten (10) 

years deferred probation, subject to violence terms and the requirement to 

attend and successfully complete the SAFP program. (CR 23) Appellant 

was required to remain in the Hunt County Jail until such time as he could 

be transferred to a SAFP facility (CR 29) Appellant was also currently on 

parole for an offense at the time he was placed on probation and his parole 

was revoked and he was sent to prison prior to being able to start his 

probation. (RR Vol. 1, page 43, lines 13-22) Appellant’s probation was 

amended twice, once in July of 2009 to permit Appellant to reside outside of 

Hunt County (CR 39) and in November of 2013 (CR 82). The docket sheet 

for the 196th Judicial District Court shows that Appellant was present and 

represented by counsel at both hearings that resulted in amending the terms 

of his probation (CR 7) 

In September of 2014, the probation department requested a violation 

review hearing (CR 87) and on October 30, 2014 filed a Motion to Revoke. 

(CR 94) An Amended Second Motion to Revoke was filed on November 

20, 2014, which alleged ten (10) paragraphs of violations (CR 120) On 

December 16, 2014, the Trial Court conducted a hearing on the Amended 

Second Motion to Revoke. The State called Derrick Bercher (“Bercher”) as 
its first witness. Bercher is an employee with the Hunt County Community 

Supervision and Corrections Department (“HCCSCD”) who was charged 

with collecting urine samples from Appellant for the purposes of drug 

screens. (RR Vol. 1, p. 8:16-19). Bercher collected a sample from 

Appellant on August 14, 2014 (RR Vol. 1, p. 10:3-9) and on September 4, 

2014 (RR Vol. 1, p. 8:18-19) Bercher testified that he sealed each package 

for transmittal to the drug testing facility. (RR Vol 1, p. 13:7- p. 14:8) The 

State next called Steve Harris, lab director and senior analyst at One Source 

Technology (“Harris”). (RR Vol. 1, p. 16:7-13). Harris testified that he 

received the urine samples of Appellant sent in by the HCCSCD and tested 

them for the presence of illegal drugs. (RR Vol. 1, p. 16:21-23; 17:14-24; 

21:10-18) Harris testified that he prepared reports with the results of his 

testing that showed Appellant had tested positive for methamphetamines on 

both tests (RR Vol. 1, p.20:1; 22:10-12) (SX 1 &2).

Candice Mead, an officer with HCCSCD, (“Mead”) testified. (RR 

Vol. 1, p. 31:6-7). Mead was the supervising probation officer for 

Appellant. RR (Vo1. 1, p. 31:10-13) Mead testified that a condition of 

Appellant’s probation was that he not use any illegal drugs. (RR Vol. 1, p. 

32:11-15) Mead also testified that the Appellant was delinquent on paying 

the fees for probation (RR Vol. 1, p. 32:16-33:20), that Appellant had not 
completed all of his community service hours as required (RR Vol. 1, p. 

35:14-36:12; 40:13-16) and that Appellant failed to report as required (RR 

Vol. 1, p. 36:12-37:20). Mead acknowledged that she did know Appellant 

had held a job and had made some payments (RR Vol. 1, 49:7), but that 

Appellant had indicated to her that at times he could not afford to pay the 

probation fines and fees and the HCCSCD had not established a formal 

budget to show Appellant’s income and expenses. (RR Vol. 1, p. 38:8-11; 

42:15-43:7) 

Detective Warren Mitchell, an investigator with the Greenville Police 

Department, (“Mitchell”) testified. (RR Vol. 1, p. 55:1) Mitchell testified 

that based on his training and experience, Alprazolam and Trazadone are 

dangerous drugs. (RR Vol. 1, p. 55:22-56:12) Officer Greg Hughes 

(“Hughes”) testified that he had encountered Appellant on October 21, 2014, 

(RR Vol. 1, 60:3-21) Hughes testified that in the course of speaking with 

Appellant, he observed a cellophane wrapper in Appellant’s pocket and that 

in his training and experience, such wrappers usually contained narcotics. 

(RR Vol. 1, p. 61:13-62:8) Hughes testified he removed the wrapper, looked 

in it and it contained eight pills and a packet of synthetic marijuana. (RR 

Vol. 1, p. 63:8-10) Hughes also testified that the location where he 

encountered the Appellant was a drug free zone. (RR Vol. 1, p. 70:3-5)
After Hughes’ testimony, the State rested. (RR Vol. 1, p. 71:14-15). 

The State abandoned paragraphs two and three in the Amended Second 

Motion to Revoke. (RR Vol. 1, p. 71:14-15) The Appellant neither testified 

nor called any witnesses. (RR Vol. 1, p. 71:18). The Trial Court found 

paragraphs 1 and 9 of the Amended Second Motion to Revoke were not true 

and found paragraphs 4, 5, 6, 7, 8 and 10 were true. (RR Vol. 1, p. 71:25-

72:2). The State recalled Mead to testify regarding the Appellant’s prior 

criminal history. (RR Vol. 1, p. 72:10-25)

 The State also called Amber Richardson, another officer with the 

HCCSCD. (RR Vol. 1, p. 77:2-8). After calling Richardson, the State rested 

and the Appellant rested without testifying or calling any witnesses. (RR 

Vol. 1, p. 79:10-11) The Trial Court considered the circumstances of the 

original offense, and assessed a punishment of sixty (60) years imprisonment 

in the Texas Department of Corrections, Institutional Division. (RR Vol. 1, 

p. 82:15-24) A written judgment was signed that imposed the sixty (60) 

year sentence, but also imposed $1,970.00 plus $367.00 attorney’s fees and 

$122.00 UA fees. (CR 122)

SUMMARY OF THE ARGUMENT

The Trial Court erred when it entered the written judgment because it 

varied from the oral pronouncement of sentence in that it added attorney’s 
fees and UA costs to the judgment. The Trial Court also erred in adding 

attorney’s fees and UA costs because the record for the case is devoid of any 

evidence of Appellant’s ability to pay. Therefore, this Court should reform 

the judgment of the Trial Court to delete the attorney’s fees and UA costs.

ARGUMENT

ISSUE NUMBER ONE: THE TRIAL COURT ERRED IN ENTERING 

THE JUDGMENT BECAUSE IT VARIES FROM 

THE ORAL PRONOUNCEMENT OF 

SENTENCE.

“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.” Ex parte Madding, 70 

S.W.3d 131, 135 (Tex. Crim. App. 2002). If the oral pronouncement of 

sentence and the written judgments vary, the oral pronouncement controls. 

Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). Here, the 

Trial Court’s oral pronouncement of sentence was:

“Therefore I find that to be a violent crime which 

deserves sixty years imprisonment. So the judgment will 

be for sixty years to do.” (RR Vol. 1, p. 82:22-24)

It was clear when the Trial Court orally pronounced sentence that the 

Trial Court was imposing only a term of imprisonment and not additional 

attorney’s fees or costs. Therefore, the written judgment varies from the 

Trial Court’s oral pronouncement. See Coffey, 979 S.W.2d at 328. (The 
orally pronounced sentence is the appealable event and any deviation from 

the orally pronounced sentence does not supersede what was imposed in 

open court). This court should, upon reviewing the oral pronouncement of 

sentence by the Trial Court, reform the written judgment to make it 

consistent with the Trial Court’s oral pronouncement.

ISSUE NUMBER TWO: THE TRIAL COURT ERRED IN ASSESSING 

ATTORNEY’S FEES AND UA FEES BECAUSE 

THE RECORD DOES NOT ESTABLISH 

APPELLANT HAD THE ABILITY TO PAY

Assuming arguendo that this Court finds that the addition of 

attorney’s fees and costs to the written judgment when not pronounced 

orally by the Trial Court isn’t an improper variance, the Trial Court still 

erred in assessing attorney’s fees against Appellant. Pursuant to. Art. 

26.05(g) of the Texas Code of Criminal Procedure, a trial court may order an 

indigent defendant to pay court appointed attorney fees only when the “court 

determines that [the] defendant has financial resources that enable him to 

offset in part or in whole the costs of the legal services provided, including 

any expenses and costs.” TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West 

2015)

A defendant’s “financial resources and ability to pay are explicit 

critical elements in the trial court’s determination of the propriety of 
ordering reimbursement of costs” of attorney services. See Armstrong v. 

State, 340 S.W. 3d 759, 765-66 (Tex. Crim. App. 2011) quoting Mayer v. 

State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010) 

Appellant was found to be indigent not only at the time of the original 

plea in 2005 (CR 15), but again when the revocation procedures were 

initiated (CR 56 & 118) There is nothing in the record to show any 

determination by the Trial Court that Appellant’s indigent status had 

changed and that he was able to pay his appointed attorney’s fees. Because 

the record shows no support for or finding of Appellant’s ability to pay his 

attorney’s fees and UA fees, the assessment was in error and should be 

stricken from the written judgment. Cates v. State, 402 S.W.3d 250, 252 

(Tex. Crim. App. 2013); see also Mayer, 309 S.W.3d at 556; Martin v. State, 

405 S.W.3d 944, 946-47 (Tex. App. – Texarkana 2013, no pet). This Court 

should reform the written judgment by deleting the assessment of attorney’s 

fees and UA fees.

PRAYER

WHEREFORE, based upon the foregoing, Appellant prays the 

judgment be reformed to match the sentence as orally pronounced and that 

the assessment of attorney’s fees and UA fees be deleted.

Respectfully submitted,
RENSHAW, DAVIS & FERGUSON, 

L.L.P.

By: /s/ Katherine A. Ferguson

Katherine A. Ferguson (SBN 

06918050)

2900 Lee Street, Suite 102

P.O. Box 21

Greenville, Texas 75403-0021

Telephone: (903) 454-6050 

Facsimile: (903) 454-4898 

Email: rdflawoffice@yahoo.com

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the Appellant’s Brief was sent 

by first class United States Mail, postage prepaid, to the Honorable Noble 

Walker, Hunt County District Attorney, P.O. Box 441, Greenville, Texas 

75403-0441 on this the 25th day of June 2015.

I further certify that a true and correct copy of Appellant’s Brief was 

sent by first class United States mail, postage prepaid and certified mail, 

return receipt requested, to DEVON RAY DAVIS #01975561 c/o James V. 

Allred Unit, 2101 FM 369 North, Iowa Park, Texas 76367

/s/ Katherine A. Ferguson

Katherine A. Ferguson

CERTIFICATE OF COMPLIANCE WITH RULE 9.4

Pursuant to Texas Rule of Appellate Procedure 9.4, this certifies that 

this document complies with the type volume limitations because it is 

computer generated and does not exceed 15,000 words. Using the word 

count feature of Microsoft Word, the undersigned certifies that this 

document contains 1,601 words in the entire document, except in the 

following sections: caption, identities of parties and counsel, statement 

regarding oral argument, table of contents, index of authorities, statement of 
the case, statement of issues presented, signature, certificate of service and 

certificate of compliance. This document also complies with the typeface 

requirements as it has been prepared in a proportionally spaced typeface 

using Microsoft Word in 14-point Times New Roman.

/s/ Katherine A. Ferguson

Katherine A. Ferguson