No. 06- 14 -000 32
- 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 196 th Judicial District Court

Of Hunt County, Texas Trial Court Cause 22, 88 6 Hon. Joe M. Leonard, Judge Presiding

APPELLANT’S BRIEF

Katherine A. Ferguson (SBN 06918050) Renshaw, Davis & Ferguson, L.L.P. 2900 Lee Street, Sui te 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

CLERKIDENTITIES 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. 2 900 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 Di strict Attorney Hunt Co. District Attorney P.O. Box 441 Greenville, Texas 75403

- 0441 Trial Judge: Hon. Joe M. Leonard 196 th Judicial District Court P.O. Box 1097 Greenville, Texas 75403

- 1097TABLE OF CONTENTS

Identities of Parties and Counsel ..............................................ii Table of Contents...............................................................iii
Index of Authorities

................................................................. i v Statement of the Case............................................................... 2
Issues P resented ...............................................................

. 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 PRONO UNCEMENT 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..................

... ................................. ..............................1 0
CERTIFICATE OF SERVICE.................................................. 11
CERTIFICATE OF COMPLIANCE .......................................11INDEX 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. S tate, 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
T EX
. C ODE C RIM
. P ROC
. art 26.05(g)

.......................................... 9No. 06
- 1 4
- 000 32 CR

IN THE COURT OF APPEALS SIXTH DISTRICT OF TEXAS AT TEXARKANA

DEVON RAY DAVIS APPELLANT

v. THE STATE OF TEXAS, APPELL EE On Appeal from the 196 th Judicial District Court

Of Hunt County, Texas Trial Court Cause 22,886 Hon. Joe M. Leonard, Judge Presiding

APPELLANT’S BRIEF

TO TH E 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 196 th Judicial District Court of Hunt County, Texas, the Honorable Joe M. Leonard, presiding

.STATEME NT OF THE CASE

The Appellant, DEVON RAY DAVIS , was charged with the offense
of robbery . (CR 1 0)

. The indictment also included three enhancement paragraphs, which increased the range of punishment for the offense to a minimum of twenty

- five (25) years u p 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) Appellan t 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 Pr obation 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 Amende d Second Motion to Revoke Deferred Adjudication Comm u nity Supervision andRequest 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, t he 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 attorne y’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 T HE 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 D avis (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 Rec ord 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, re spectively )Appellant was admonished about the range of punis hment 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 r emain 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 196 th 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 8 7) 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 Amen ded Second Motion to Revoke. The State called Derrick Bercher (“Bercher”) asits first witness. Bercher is an employee with the Hunt County Community

Supervision and Corrections Department (“HCCSCD”) who was charged with collecting urine samples from App ellant 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 trans mittal 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 A ppellant 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 methamp hetamines 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 notcompleted all of his commun ity 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 )
Detect ive 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 t o 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). Af ter 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 im prisonment 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’sfees and UA costs to the judgment. The Trial Court also erred in adding

attorn ey’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 embodimen t 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 Co urt 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. (T heorally 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 argue ndo 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.” T EX
. C ODE C RIM
. P ROC
. A NN
. art. 26.05(g) (West 2015) A defendant’s “financial resources and ability to pay are explicit critical elements in the trial court’s determin ation of the propriety ofordering 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 indigen t 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. C rim. 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
fe es 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, DAV IS & 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 25 th 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 Ru le 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 th is 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 ofthe case, statement of issues p resented, 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