IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1711-13

MELISSA ANN MERCER, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE THIRTEENTH COURT OF APPEALS

BEE COUNTY

HERVEY, J., delivered the opinion of the Court in which KELLER, P.J.,

JOHNSON, KEASLER, ALCALA, RICHARDSON, YEARY, NEWELL, JJ., joined. JOHNSON,

J., filed a concurring opinion. ALCALA, J., filed a concurring opinion. MEYERS, J.,

did not participate.

O P I N I O N

Here we are asked to consider whether a defendant on community supervision for

a state-jail felony may be required to reimburse a county for the cost of her incarceration

in county jail as a condition of her community supervision. However, because we

conclude the court of appeals incorrectly analyzed the relevant issue in this case, we

vacate the judgment of the court of appeals and remand this cause for reconsideration in
Mercer–2

light of this opinion.

BACKGROUND

Appellant, Melissa Ann Mercer, pled guilty to debit-card abuse and was placed on

community supervision for five years. On numerous occasions, the trial court amended

Appellant’s conditions of community supervision sua sponte and without a hearing.

However, Appellant signed each order amending the conditions of her community

supervision.

Later, the trial court held a hearing with Appellant, defense counsel, and the

prosecutor present, revoked Appellant’s community supervision, and sentenced her to two

years’ confinement. The judge also ordered her to pay the costs she had failed to pay as

conditions of her community supervision, including payment of her outstanding fine,

court costs, and reimbursement for costs of her confinement in county jail while she was

1

on community supervision. At the revocation hearing, Appellant stipulated to evidence

proffered by the State and pled true to all alleged violations of her conditions of

community supervision, including failing to pay her fine, court costs, and reimbursement

as ordered as conditions of her community supervision. Appellant did not object at the

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The trial court used the term “restitution.” We shall use the term “reimbursement,” as the 1

court of appeals did through all but the conclusion of its opinion, because the Texas Code of

Criminal Procedure article dealing with confinement expenses is styled, “Reimbursement for

Confinement Expenses.” TEX. CODE CRIM. PROC. art. 42.038.

On February 12, 2013, Appellant signed a stipulation of evidence in which she judicially 2

confessed to all 24 of the allegations contained in an attached affidavit sworn to by Grace Garcia,

although the State later abandoned allegations 5 and 10 through 13. Among the numerous other
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hearing.

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Appellant appealed, challenging the assessment of $160 for the costs of her

confinement in the county jail. The court of appeals granted Appellant relief, holding that

the trial court did not have the express authority, under Article 42.12 of the Texas Code of

Criminal Procedure, to order Appellant to reimburse the costs of her confinement as a

condition of community supervision. The court’s remedy was to strike the reimbursement

amount ordered to be paid (as part of Appellant’s sentence) after the judge revoked

Appellant’s community supervision. See Mercer v. State, No. 13-13-00150-CR, 2013 WL

6055271, at *2 (Tex. App.—Corpus Christi Nov. 14, 2013) (mem. op.) (not designated

for publication). We granted the State Prosecuting Attorney’s petition for review on the

following grounds:

1. Is a challenge to a community supervision condition, imposed in a

modification order entered without a hearing, forfeited on appeal from

revocation when the probationer was served with the modification order and

could have timely objected in the trial court but failed to do so?

2. On appeal from revocation, did Appellant forfeit her challenge to the

imposition of incarceration reimbursement costs as a supervision condition

by failing to object when the judge included the outstanding costs in the

allegations of violations of her conditions of community supervision, Appellant admitted that she

had failed to pay the assessed costs and fines.

When the judge revoked Appellant’s community supervision and sentenced her, he 3

stated in part,

Her community supervision will be revoked, the original sentence imposed, two

years in a state jail with the balance of the unpaid fine, fees, costs and restitution,

if it can be collected, on a state jail case, which I don’t think it really can be.
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revocation judgment?

3. Is the community supervision condition for misdemeanor offenses that

authorizes reimbursement costs for confinement as a supervision condition

properly imposed in a state jail felony case when, by statute, a judge can

impose any condition authorized for a non-state jail felony offense?

DISCUSSION

The issue has been presented as one of whether ordering reimbursement for costs

of confinement is a valid condition of community supervision in non-misdemeanor cases.

After reviewing the record, we conclude that the issue is not whether the court had the

authority to impose reimbursement as a condition of Appellant’s community supervision,

but rather whether the judge had the authority to order Appellant after revocation, as part

of her sentence, to pay the balance of her fine, costs, and reimbursement.

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Because the court of appeals granted Appellant relief on an erroneous basis, we

vacate the judgment of the court of appeals and remand this cause to the court of appeals

for further proceedings. Furthermore, we note that the State argued at the court of

This fact was essentially acknowledged by Appellant’s court-of-appeals counsel when he 4

stated,

The restitution payments ordered in this case are not made ‘as a condition of’

[community supervision] because the trial court [] removed Appellant from

[community supervision] and ordered Appellant’s sentence executed. Therefore,

article 42.12 cannot serve as a basis to order restitution in this executed sentence

even if the general language of 42.12 could authorize those payments as a

condition of [community supervision].

Appellant’s Brief at 8, Mercer v. State, 2013 WL 6055271 (Tex. App.—Corpus Christi Nov. 14,

2013) (No. 13–13–00150–CR) (record citation omitted).
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appeals, and in its brief to this Court, that Appellant failed to preserve any complaint for

appellate review because she did not object at the revocation hearing despite having an

opportunity to do so. Also, for the first time, Appellant argues that there was an

insufficient basis to order repayment of costs in this case because Appellant is indigent,

and that her argument may be raised for the first time on appeal. On remand, the court of

appeals should address preservation of error and any other properly presented issues that

necessarily must be addressed to resolve Appellant’s appeal.

Hervey, J.

Delivered: January 14, 2015

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