Vincent Ray JACKSON, Jr., Appellant v. STATE of Texas, Appellee

No. 07-18-00140-CR

Court of Appeals of Texas, Amarillo.

October 16, 2018

Rick Dunbar, for Appellant.

Derek Montgomery, Richard Thompson, for Appellee.

Before QUINN, C.J., and PIRTLE and PARKER, JJ.

Patrick A. Pirtle, Justice

Pursuant to a plea of guilty before the trial court, without a recommendation as to punishment, Appellant, Vincent Ray Jackson, Jr., was convicted of possession of a controlled substance, to-wit: methamphetamine, in an amount of one gram or more but less than four grams1 and sentenced to eight years confinement in the Institutional Division of the Texas Department of Criminal Justice. In addition, Appellant was assessed a fine of $1,000, court costs of $423, attorney's fees of $1,800, restitution to the Texas Department of Public Safety Crime Laboratory of $180, and a Crime Stoppers fee of $50. By two issues, Appellant contends the trial court (1) erred by admitting evidence of an extraneous offense and (2) abused its discretion in the assessment of sentence. We agree, in part, that the trial court abused its discretion in the assessment of sentence, modify the judgment to delete the imposition of certain financial penalties, and affirm the judgment as modified.2

BACKGROUND

On November 9, 2016, Agent Shawn Lewis of the Criminal Investigations Division of the Texas Department of Public Safety conducted an undercover controlled buy of 3.34 grams of methamphetamine from Appellant. The buy occurred at Appellant's residence in Sweetwater, Nolan *720County, Texas. Because the buy was made in connection with an on-going investigation, no arrest was made at that time.

In July 2017, Brian Davis, a licensed peace officer with the Sweetwater Police Department, received a report that a male and female in a black vehicle with a broken windshield had attempted to pass two counterfeit $20 bills at a local drive-in restaurant. A short time later, Officer Davis located a vehicle matching the description given and he approached the vehicle. As he approached, two males were attempting to leave the vehicle. Appellant was seated in the front passenger seat. Two counterfeit $20 bills were obtained by Officer Davis from the center console of the vehicle and Appellant handed an additional eight counterfeit $20 bills to another officer at the scene.

A subsequent search of the vehicle revealed two fix-blade knives (one of which was shown to have been stolen), two coin collections, and additional counterfeit money.3 The search of the vehicle also revealed, in the vicinity of the front passenger's seat, two syringes containing a clear, liquid substance. Subsequent laboratory results revealed that the syringes contained 0.65 grams of methamphetamine.

Appellant was charged with the offense of possession of a controlled substance in conjunction with the November 9, 2016 transaction with Agent Lewis and two counts of forgery. On March 5, 2018, in exchange for an "open plea" of guilty (a plea without a recommendation as to punishment), the State agreed to dismiss the two forgery cases and it further agreed not to proceed to indictment on another charge of possession of a controlled substance in conjunction with the two syringes. In addition to his plea of "guilty," a judicial confession of guilt was admitted into evidence. The trial court accepted Appellant's plea, adjudicated him guilty, and scheduled a punishment hearing for March 27th.

At the punishment hearing, the State offered evidence concerning the circumstances surrounding Appellant's arrest, including seizure of the knives, coin collections, and counterfeit money. The trial court admitted each of those items into evidence over Appellant's relevance objection. The trial court also admitted the two syringes and the lab analysis over Appellant's relevance objection.

In addition, the trial court heard evidence regarding a forged check in the amount of $450 made payable to Appellant. A police investigation revealed that the account holder of the check did not know Appellant, had not issued a check payable to him, and did not sign the check in question. The police were able to determine that the check was cashed by Appellant and also secured a photo of him cashing the check, along with a copy of his driver's license.

The trial court also heard evidence, without objection, concerning two prior felony offenses for which Appellant had received deferred adjudication-a 2003 order for the third degree felony offense of possession of a controlled substance and a 2013 order for the state jail felony offense of theft. Appellant also testified at his punishment hearing. During his testimony, he admitted selling Agent Lewis methamphetamine in November 2016; however, he denied that he had anything to do with any attempt to pass the counterfeit money. He did admit he was a passenger in the suspect vehicle; however, he denied any *721knowledge concerning the two syringes and claimed he was unaware of their presence in the vehicle. He further admitted while some of the counterfeit money was in his possession, it had been given to him as payment from a third party for mowing lawns and trimming trees. He further denied having any involvement with the burglary where one of the knives was allegedly stolen. As to the $450 forged check, Appellant claimed that it was payment for a television set he had posted for sale on the Internet.

Appellant filed an application for probation and requested that the trial court release him on conditions of community supervision. The State, on the other hand, requested that the court sentence him to the maximum sentence of ten years in prison.

EXTRANEOUS OFFENSES-ISSUE ONE

By his first issue, Appellant contends he was harmed when the trial court admitted and considered, during the punishment phase of his trial, evidence of extraneous offenses not rationally attributable to him. Specifically, he complains about the admission of the two knives, coin collections, and counterfeit money. As to the knives, he contends the evidence is insufficient to "link" him to the knife that was reported stolen. He also contends the coin collections should not have been admitted because there was no evidence they had ever been reported stolen, and as to the counterfeit money, he contends the "affirmative links" are insufficient because the contraband was not on his person or subject to his exclusive possession at the time of its seizure.

An argument that evidence is not "rationally attributable" to a defendant, or that evidence is not "linked" to an accused is distinguishable from an objection that evidence is not relevant. Evidence is "relevant" if it has *any* tendency to make a fact more or less probable than it would have been without that evidence, so long as the fact in question is of consequence in determining the action. TEX. R. EVID . 401. The strength or weakness of the evidence is not a matter of *relevance* if it meets that criteria. The fact that *relevant* evidence may have weak or limited probative value is more appropriately the subject of a Rule 403 objection. *See* TEX. R. EVID . 403 (providing that relevant evidence may be excluded if its probative value is substantially outweighed by a danger of unfair prejudice, issue confusion, potential for deception (misleading), undue delay, or needless presentation of cumulative evidence).

At trial, Appellant objected to the *relevance* of the questioned evidence; however, on appeal, he argues its weight and probative value. Because his arguments on appeal do not comport with the objection he made at trial, he has failed to preserved error for appellate review. *See**Wilson v. State,*71 S.W.3d 346, 349 (Tex. Crim. App. 2002).

However, even if we were to construe Appellant's objection at trial as encompassing the arguments he makes on appeal, we would still not find a sufficient basis for reversal because a trial court has "wide discretion to determine the admissibility of evidence at the punishment phase." *Munguia v. State,* No. 11-16-00048-CR, 2018 WL 826751, at *1, 2018 Tex. App. LEXIS 1084 at *3 (Tex. App.-Eastland Feb. 8, 2018, no pet.) (mem. op., not designated for publication). This is because section 3(a)(1) of article 37.07 of the Texas Code of Criminal Procedure provides as follows:

> [r]egardless of the plea and whether the punishment be assessed by the judge of the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, *722including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

TEX. CODE CRIM. PROC. ANN . art. 37.07, § 3(a)(1) (West Supp. 2018).

Furthermore, as an appellate court, we review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. *Montgomery v. State* , 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g). "Under an abuse of discretion standard, an appellate court should not disturb the trial court's decision if the ruling was within the zone of reasonable disagreement." *Bigon v. State* , 252 S.W.3d 360, 367 (Tex. Crim. App. 2008). Under this broad standard, we cannot say the trial court abused its discretion in admitting any evidence pertaining to the circumstances of Appellant's arrest (encompassing the knives, coin collections, and counterfeit money) or the extraneous offense pertaining to the $450 forged check. Issue one is overruled.

PUNISHMENT ASSESSED-ISSUE TWO

By his second issue, Appellant contends the trial court abused its discretion by sentencing him to penitentiary time rather than community supervision and rehabilitation. In making this argument, Appellant does not claim any fundamental error exists with respect to the sentence imposed. Instead, he merely contends that he has a drug problem that would be better addressed by rehabilitation-centered community supervision.

A trial court's sentencing order is subject to review by an appellate court under an abuse of discretion standard. *See**Jackson v. State,*680 S.W.2d 809, 814 (Tex. Crim. App. 1984) ; *Moore v. State* , No. 11-13-00050-CR, 2014 WL 6997620, at *2, 2014 Tex. App. LEXIS 13318 at *5 (Tex. App.-Eastland Dec. 11, 2014, no pet.) (mem. op., not designated for publication). As a general rule, a trial court's sentence will not be disturbed if that sentence is within the statutory range of punishment for the offense in question because such a sentence complies with the objectives of the penal code. *Jackson,*680 S.W.2d at 814.

Although Appellant accepted responsibility for the offense for which he entered a plea of guilty, the evidence showed a high probability that he was associated with, if not actively engaged in, other criminal activity. He also testified to his inability to theretofore overcome his drug addiction, even though he had been subject to deferred adjudication community supervision during the time he was suffering from that addiction. In addition, the offense prosecuted was for the third degree felony offense of *possession* of a controlled substance, whereas the evidence established that he had engaged in the second degree felony offense of *delivery* of a controlled substance. Furthermore, as a part of his open plea, the State agreed to dismiss two pending forgery cases and not proceed to indictment on another charge of possession of a controlled substance in conjunction with the two syringes found in the immediate vicinity of Appellant's location in the vehicle when it was searched. Under these circumstances, it cannot be said that the trial court abused its discretion in assessing a period of confinement within the *723statutory range of punishment in lieu of granting Appellant's request for community supervision.

That being said, the trial court did abuse its discretion in accessing certain financial obligations not properly a part of Appellant's sentence. Immediately following the punishment phase of trial and the arguments of counsel, the trial court orally pronounced that Appellant be sentenced to "eight years confinement in the Texas Department of Criminal Justice, a fine of $1,000 plus court costs, and attorney's fees of [Appellant's court-appointed defense counsel] to be reimbursed to the County." The final judgment, however, ordered eight years confinement, a $1,000 fine, $423 in court costs, $1,800 in attorney's fees, $180 "restitution," and $50 for a Crime Stoppers fee.

While the record reflects that at both the trial and appellate stages of this proceeding the trial court found "[Appellant] does not meet the indigency standards of this Court," in both instances the trial court also found that it was in "the interest of justice" to appoint counsel to represent Appellant. The judgment of the trial court attempts to assess those fees against Appellant. In order to assess attorney's fees against a defendant following conviction, a trial court must determine that the defendant has sufficient financial resources that enable him to offset in whole or in part the costs of legal services provided. TEX. CODE CRIM. PROC. ANN . art. 26.05(g) (West Supp. 2018). The trial court's findings in this case fall short of that requirement because a finding that one "does not meet the indigency standards of this Court" is not the same as a finding that one has the present ability to pay, in whole or in part, the sum assessed.4 Furthermore, because there is no evidence of record demonstrating that Appellant's present financial resources were sufficient to meet that standard, the trial court erred in ordering the repayment of those fees.5*See**Mayer v. State* , 309 S.W.3d 552, 556-57 (Tex. Crim. App. 2010) (trial court judgment modified to delete unauthorized attorney's fees and affirmed as modified). Accordingly, the judgment of the trial court is modified to delete any obligation to pay attorney's fees.

The judgment also attempts to assess a $50 fee for Crime Stoppers. Section 133.102 of the local government code requires a person convicted of a felony to pay a consolidated court cost of $133. TEX. LOC. GOV'T CODE ANN . § 133.102(a)(1) (West Supp. 2018). That statutory provision uses percentages to allocate the $133 cost to several accounts and funds. § 133.102(e). Those accounts include funds for "crime *724stoppers assistance" and "compensation to victims of crime." § 133.102(e)(1), (e)(8). Because section 133.102 assesses a percentage of the consolidated court costs to the compensation of victims of crime, it is inappropriate to assess a separately-charged fee to Crime Stoppers. *See* § 133.102(a)(1), (e)(1), (e)(8). *See also**Smith v. State,* No. 02-16-00412-CR, 2017 WL 2276751, at *2, 2017 Tex. App. LEXIS 4810 at *4-5 (Tex. App.-Fort Worth May 25, 2017, pet. ref'd) (mem. op., not designated for publication); *Aviles-Barroso v. State* , 477 S.W.3d 363, 398-99 (Tex. App.-Houston [14th Dist.] 2015, pet. ref'd) ; *Owen v. State,*352 S.W.3d 542, 548 n.10 (Tex. App.-Amarillo 2011, no pet.). Accordingly, the judgment of the trial court is modified to delete any obligation to pay the $50 Crime Stoppers fee.

Finally, the judgment attempts to assess a $180 fee for "restitution" to the Texas Department of Public Safety Crime Laboratory, presumably for the cost of testing the controlled substance the subject of the State's prosecution. A trial court has no authority to order a defendant to reimburse the Texas Department of Public Safety for lab fees as a part of his sentence, and such fees are not properly the subject of a restitution order under article 42.037(a) of the Texas Code of Criminal Procedure. *See**Aguilar v. State,*279 S.W.3d 350, 353 (Tex. App.-Austin 2007, no pet.). *See also* TEX. CODE CRIM. PROC. ANN . art. 42.037(a) (West 2018). As such, the judgment of the trial court is further modified to delete any obligation to pay $180 restitution.

In sum, issue two is sustained, in part, and the judgment of the trial court is reformed to delete any obligation to pay attorney's fees of $1,800, a Crime Stoppers fee of $50, and restitution to the Texas Department of Public Safety Crime Laboratory of $180. The trial court is ordered to prepare and file a *Judgment Nunc Pro Tunc* reflecting these reformations and the trial court clerk is ordered to provide a copy of that judgment to the Institutional Division of the Texas Department of Criminal Justice.

CONCLUSION

As reformed, the judgment of the trial court is affirmed.

**CONCURRING and DISSENTING OPINION**

Brian Quinn, Chief Justice

I join with the majority's opinion save for its disposition of the attorney's fees issue.

Appellant requested appointed counsel before trial and on appeal. The trial court found that appellant did "not meet the indigency standards of this court" in both instances, but, in both instances, it appointed counsel for appellant in the "interest of justice." So too did it find, in both instances, that:

> The Defendant is ORDERED to immediately report to the Office of Court Collections and make payments of at least $50.00 per month toward their court appointed attorney fee; total payments not to exceed $500.00.

If the trial court decides that one requesting appointed counsel has the financial resources enabling him to offset in whole or in part the costs of the legal services provided him, that court is required to order him to pay, as court costs, the amount that it finds the defendant is able to pay. *See* TEX. CODE CRIM. PROC ANN . art. 26.05(g) (West Supp. 2018); *Mayer v. State* , 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). To this I add the definition of "indigent" provided us by our Court of Criminal Appeals. In *Whitehead v. State* , 130 S.W.3d 866 (Tex. Crim. App. 2004), we were told that a defendant is indigent if *725"he is financially 'without the means to employ counsel' of his choosing." *Id.* at 878 (quoting TEX. CODE CRIM. PROC ANN . art. 26.04(o) ). These statutes and definition, coupled with the deferential standard of review we must accord the trial court's factual determinations, *see**Whitehead* , 130 S.W.3d at 876 (stating that "[a]lthough the standard of review for a trial court's determination of indigence is not as deferential as the standard in *Ross* , deference is still a part of the standard"), led me to the following conclusion. The trial court implicitly found that 1) appellant had some financial means or resources with which to employ counsel; 2) those means, however, were not enough to pay for the entire cost of counsel; and 3) the financial resources he did have enabled him to pay at least $50 per month, not to exceed $500. *See**Charles v. State* , 146 S.W.3d 204, 208 (Tex. Crim. App. 2004) (stating that, when deciding if a trial court abused its discretion, we presume that all reasonable factual findings that could have been made against the losing party were made). Thus, the trial court was obligated by article 26.05(g) and *Mayer* to order payment of the amount appellant could pay.

In short, I disagree with the majority's conclusion that a finding of " 'not indigent' is not the same as a finding that one has the present ability to pay, in whole or in part, the sum assessed." Finding that a defendant is not indigent while requiring the defendant to pay a particular amount to reimburse the cost of an appointed counsel is comparable to finding that the defendant had the financial resources to pay the sum assessed. So, the trial court was obligated to require such payment.

As for the suggestion that no evidence of record demonstrates that appellant's "present financial resources were sufficient to meet that standard," I cannot disagree. The current appellate record before us has no such evidence. Yet, that does not mean the trial court had no evidence before it to support the findings of non-indigency and an ability to pay some of the cost. One may say that this sounds like legal "hair-splitting" and it may well be. But, is that not our job (rhetorical question)? And does resolution of disputes not often call for splitting hairs (again, rhetorical)?

The burden lies on an appellant to provide the reviewing court with an appellate record sufficient to illustrate his entitlement to reversal. *Word v. State* , 206 S.W.3d 646, 651-52 (Tex. Crim. App. 2006) ("It is usually the appealing party's burden to present a record showing properly preserved, reversible error."). Aspects of the record before the trial court involving issues about which he does not complain need not be included in the appellate record. Indeed, including unnecessary items in the record may result, in some situations, in the party receiving a bill for including them. *See* TEX. R. APP. P . 34.5(b)(3) (stating that in civil cases, if a party requesting more items than necessary to be included in the clerk's record or any supplement, an appellate court may require that party to pay the cost for including the unnecessary items). Here, appellant did not complain on appeal about the trial court's assessment of attorney's fees as part of the cost or its finding on non-indigency. So, he had no reason to request that the appellate record include evidence tendered in support of his application for appointed counsel and apparent contention below that he lacked the means to hire an attorney. Yet, such evidence most likely exists, and it was most likely considered by the trial court.

As a prerequisite to obtaining appointed counsel, appellant was required to complete a questionnaire, under oath, detailing his financial resources and undergo examination by a judge or magistrate when requesting *726appointed counsel. TEX. CODE CRIM. PROC. ANN . art. 26.04(n) (West Supp. 2018) (so requiring); *Whitehead* , 130 S.W.3d at 873 (same). He was also obligated to execute, under oath, a statement that he was without means to employ counsel. TEX. CODE CRIM. PROC. ANN . art. 26.04(o) ; *Whitehead* , 130 S.W.3d at 873. The information contained in these mandatory items along with the data acquired through questioning would provide the trial court the fodder upon which to decide whether he was indigent. *See* TEX. CODE CRIM. PROC. ANN . art. 26.04(m) (stating that, when determining indigence, the court may consider the defendant's income, source of income, assets, property owned, outstanding obligations, necessary expenses, the number and ages of dependents, and spousal income that is available to the defendant); *Whitehead* , 130 S.W.3d at 875 (stating the same).

Given these statutory prerequisites, I cannot but conclude that it was much more likely than not that the trial court had evidence before it when deciding whether appellant was indigent. That evidence would determine the accuracy of the trial court's findings. More importantly, it would be that evidence which we must consider before concluding that the trial court's findings lacked evidentiary support. As said in *Whitehead* , an appellate court's review of the record itself is generally limited to the evidence before the trial court "***at the time of the trial court's ruling*** ." *Whitehead* , 130 S.W.3d at 872 (emphasis added). This is nothing short of mandating that our assessment of the accuracy of the trial court's factual finding regarding indigence be focused on the evidence before the court when it found appellant to be non-indigent and able to pay up to $500. Yet, such evidence is not part of the current record. Nor was supplementation of the current record sought to provide it or determine whether it actually existed. *See* TEX. R. APP. P . 34.4(c) (stating that relevant items omitted from the clerk's record may be included in a supplemental clerk's record); TEX. R. APP. P . 34.6(d) (stating the same but with regard to the reporter's record). Due to these circumstances, I cannot join in the majority's conclusion that the trial court's findings had no evidentiary support.

For the reasons stated above, I would simply reduce the amount of attorney's fees assessed to reflect the trial court's actual determination. I would modify the judgment to reflect that appellant had an obligation to pay attorney's fees of $500.

1

Tex. Health & Safety Code Ann . § 481.115(c) (West 2017).

2

This case was transferred to this court from the Eleventh Court of Appeals-Eastland, pursuant to a docket equalization order entered by the Texas Supreme Court. *See* Tex. Gov't Code Ann . § 73.001 (West 2013). We have applied precedent from that court where applicable. *See* Tex. R. App. P . 41.3.

3

The additional counterfeit money consisted of three counterfeit $20 bills, nine $100 bills with the words "for motion picture use only" written on them, and thirty-three $100 bills with the words "for cinema use only" written on them.

4

In his *Concurring and Dissenting Opinion,* Chief Justice Quinn takes issue with this statement based on what he determines to be an implicit finding that Appellant had some financial means or resources with which to employ an attorney because, after committing Appellant to eight years of incarceration, the trial court checked a paragraph on a printed form that ordered him to "report to the Office of Court Collections and make payments ... not to exceed $500." Chief Justice Quinn then speculates that evidence "most likely exists" and that "it was more likely than not that the trial court had evidence before it when deciding whether appellant was indigent." Irrespective of what we might speculate the evidence was, the fact remains the trial court did not make a determination that Appellant had financial resources that enabled him to offset in part or in whole the costs of the legal services provided.

5

The only evidence of record indicating Appellant's ability to pay is his *Application for Court Appointed Attorney,* where he declares "under penalty of perjury" that he receives no income and no public assistance, is unemployed, is disabled, supports himself through the assistance of his mother, father, and a friend, and owns only $300 in assets.