### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00040
- CR

Chad Allen Kelley, Appellant

v. The State of Texas, Appellee

FROM THE 207TH DISTRICT COURT OF COMAL COUNTY NO. CR2016
- 130, THE HONORABLE GARY L. STEEL, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Pursuant to a negotiated plea agreement, appellant Chad Allen Kelley pled guilty
to the first

- degree offense of possession with intent to deliver a controlled substance, methamphetamine, in an amount of four grams or more but less than 200 grams , see Tex. Health & Safety Code § § 481.1 02(6), .1 1 2(a), (d) , and was placed on deferred adjudication community supervision for ten years , s ee Tex. Code Crim. Proc. art. 42A.101

. 1 T he trial court subsequently granted the S ta te ’ s motion t o adjudi cate after finding that appellant had violated the terms and conditions of his supervision. Se e Tex. Crim. Proc. Code art. 42A.108. The court revoked appellant ’ s community supervision, adjudicated hi s guilt , and assessed his puni sh me nt at twen t y

1 At the time a ppellant was placed on deferred adjudication community supervision, the statutes governing communi ty supervision were codified in article 42. 12 of the C ode o f Criminal Procedure. Effect ive Januar y 1, 2017, the community supervis ion statutes were re

- codifie d in cha pter 42A of the Code of Criminal Procedure. See Act of May 26, 2015, 84th Leg., R.S., ch. 770 , § 1.01, 2015 Tex. Gen. Laws 2321, 232 1

– 65. Beca use t he re

- codification was a non

- substanti ve re vision of the community supe rvision laws, we cite to the current statutes in this opinion.2

years ’ confinement in the Texas Department of Criminal Justice

. See id

. arts. 42A.108, .110; Tex. Penal Code § 12.3 2

. On appe al, appellant contests the revocation of his community supervision based on the violation of purportedly “void ” super vision co n d i tions , c hallenges the restitution order , complains about error in the impo sition of the fine and restitution order , a nd seeks additional jail

- time credit to his sentence

. We wil l modify the trial court ’ s judgme nt adjudicating guilt and , as modified , af f i r m the judgme nt

.
BACKGROUND On March 2, 2016, a ppellant was indicted in the 207th Judicial D istrict Court of Comal County , T e xas , for possession with intent to deliver a contro lled substance, methamphetamine, in an amount of four grams or more but les s t h an 20 0 grams

. On July 19, 2016 , appellant pled guilty to the charged offe nse p ursuant to a pl e a - bargain agreement

. In exchange for appellant ’ s guilty plea, the State agreed to recommend that appellant be pl aced on deferred adjudication community sup e r v is ion for ten years. The negotiated agreement included a $ 2,000 fine , $180 restitution to the T e xas Department of Public Safety (DPS) , and 200 c ommunity

s ervice hours

. The plea proceeding occurred in the 207th Judicial D istrict Court of Comal County , T e x as , before the Honorable Gary L. Ste el , pr esiding jud ge of the 2 74 th Judicial D istrict
Court

. 2 The tri a l court a ccept ed the plea

- bargain agr eement , deferred adjudication of appellant’s guilt , placed him on community supervision f or ten years ( to start up o n appellant’s release fro m state jail 3 ), and assessed “ a $2,000 fine, $180 of restitution [ to DPS ] , court costs,

2 T he record reflects that Judge Steel was the trial judge who presided over all of the proceedings in this case

.

3 Also as part of the plea agreem ent, appe l la nt pled guilty to two additional charges of possession of less than one gram of a controlled substance , methamphetami ne, w hich were state3

reimburse [ ment ] [to] the C ou nty fo r court

- appointed attorney ’ s fees [,] and 200 hours of community service restitution and the conditions that a re recommended by the prob ation department. ”

The trial court’s order of deferred adjudication , which was signed by Judge Ste el

on July 26, 2016, reflected that appellant was placed on community supervision in the
207 th J udicial D istrict Court of Comal C o un ty, Texas

. The Conditio ns of Community Supervision , which were file d on J uly 26, 2016 , reflect ed in the body of the doc ument that

a ppellant was placed on community supervision “by the Honorable Gary Steel [of the]
27 4 th District Court of Comal County, Tex as , ” and Judge Steel ’s sig nature ha d the notation “274th” by his nam e. Th e style of the cause appearing at the top of the document i ndicated that the supervision conditions were imposed “ I N THE 22 ND DISTRICT COURT OF COMAL
COU NTY, TEXAS .”

The rec ord ind icates that appellant w as released from state jail on January 23, 2017

. An order amending appellant ’s community supervision was signed by Judge Steel on March 14, 2017 . The style of the cause on th at order reflect ed that it w a s entered “ IN
THE 274 TH D IST RICT COURT OF COMAL COUNT Y, TEXAS .” Two months later, on
Ma y 22, 2017 , an order modify ing the conditions of appe llant’s community supervision to commit him to a residential treatment center was signed by Judge Steel

. The style of the cause on th at or d er reflect ed that it was enter ed “ IN THE DISTRICT COURT OF COMAL COU NTY,
T EXAS .” Subsequent o rder s amending appellant ’s community supervision were signed by
jail felonies. S ee Tex. Health & Safety Code § § 481.1 02(6), .1 1 5 (a), ( b )

. The trial c ourt found a ppellan t guilty o f those o ffenses , sentenced him to serve one year in a state jail facility for ea ch offense (with credit for ti me ser ve d) , a nd ordered the sentence s to be se rved concurrently. See Tex. Penal Code § 12.3 5(a)

.4

Judge Steel on September 9, 2017, on October 11, 2017, and on November 9, 2017. The style of the ca u se on each of these order s re flect ed that the order was entered “ IN THE 2 74TH DISTRICT COURT OF COMAL COUNTY, TEXAS .”

On July 9, 2018, the State filed a motion to adjudicate

. T he adjudicat ion hearing was conducted before Judge S te el in the 207th Ju d i ci a l D istr ict Co urt of Comal County, Texas

. 4 Appellant pled true to all of the allegations in the motion to adjudicate

. 5 T he court revoked appellant’s community supervision , adjudic ated hi s guilt , and sentenced him to twenty years in pri son. The judgm e n t a djudica ting g uilt , signed by Judge Steel, reflects that the judg ment was entered in the 207th Judicial D istrict Court of Comal County, Texas

.
DISCUSSION Appellant raises four points of error. In his first point of error , he argues that the trial c o u rt c ould not revoke his community supervision based on his violation of “ void ” supervision conditions

. In his second point of error, he challenges the restitution order to DPS

. In his third point of error, h e contends that the trial court erred when i m p o sin g the fine and

4 The reporter’s record indicates that bot h t h e plea hearing and the adjudication hearing occu r red before Judge Steel in t he 274th Judicial District Court of Comal Coun ty, Texas. However, an A gr eement to C o r rect I naccuracy in R eporter ’ s R ecord was filed in this Court, in which the parties agreed th a t the reporter’s record is inaccurate in showing tha t the hearings occurred in the 274th J udicial D i strict Court and th at the hearings actually took place i n the 207th Judicial District Court of Coma l County, Texas

.

5 The State ’ s motion to adj udicate co n t ained eleven paragraph s alleging that appellant had violated the terms and c ondit ions of supervision in various ways, includ ing : fail ing to abstain from the us e of controlled substances ( m ethamphetamine and amphetamine ) ; fail ing to report to hi s communi t y supervision offic er ; fail ing to p ay court costs ; fail ing to pay various f ees asso ciated with his supervision ; fail ing to sub mit a spe cimen for drug testing ; fail ing to particip ate in the mental health caseload ; fail ing to attend AA or NA meetin gs; and f a il ing to complete the A ftercare Program following residential d rug treatment.5

ordering the restitutio n . In his fourth point of error, appellant seeks modification of the written judgment adjudicati n g guilt to grant additional j ail

- time credit against his sentence

.

“ Void ” Supe rvision Conditions In first point o f er ro r, appellant argues th at the trial court that imposed and modified the terms and conditions of his community supervision , which h e maintains was the 274th Judicial District Cour t , lacked jurisdiction to do so

. Thus , according to appellant, the
terms and c onditions imposed or modified were “void” and his violation of these “ void ” terms and conditions could not form the basis for the revocation of his c om munity supervision (or , there fore, the subsequent adjudi cation of his guilt).

T he concepts of jur i sdi ct ion , judicial po wer, and aut hority of courts and judges

— and the interaction between them

— are complex and often confusing, and the parties seem to conflate the m in their briefing

. We need not parse them out here, however, as ap p ellant’s argument is p r em i se d on his contention that the terms and conditions of his community supervision were imposed , and later modified, by a court without the statutory authority to do so under article 42A.051 of the C o de of Criminal Procedure

. A s appellant correctly note s , t h i s
statute pr ovides that “ only the court in which the defendant was tried ” may impose or modify the condit ions of community supervision. 6 Tex. Code Crim. Pro c . art. 42A.051 (a)

– ( b)

. Here the

6 Specificall y, article 42A.051 of the C o de of Criminal P ro cedure provides : (a) Unless the judge has transferred jurisdiction of the case to another court under Art icle 42A.1 5 1 , only the court in which the defendant was tried may: (1) grant community supervision; (2) impose conditions; or (3) di scharge the defendant.6

court in which appellant was tried

— that is, the co urt in wh i ch ap pellant was indic ted and that accepted his guilt y plea

— was the 207th Judicial District Court , not the 27 4 th Judicial District
Court. Therefo re, t he 274th Judicial District Court did not have authority under article 42A.0 51 to impose or modify the te r m s an d con ditions of supervision in t his c ase.

H o wever , the record refutes appellant ’ s assertion that the 207th Judicia l District
Court “ did not impose or modify a single condition ” of appellant ’ s community supervision

. T he original order of deferred a d j ud ic ation en tered by Judge Steel in the 207th Judicial District Court imposed

— on its face

— a $2,000 fine and $180 restitution to the T e xas Department of Public Safety

. Further, the May 22, 2017, order modifying supervision condi tions to commit appellant
t o a r esidential treatment center , which added the condition that appellant complete the Aftercare Program following his stay at the residential treatment center , was entered “ in the Dist rict Court of Comal County, Texas.” Gi ven that this orde r wa s entere d in a cause pending in the
207 th Judicial District Court , it can be construed as being enter ed in the 2 0 7th Judicial Dist rict
Court

. Thus, these terms and conditions

— that ap pellant pay a $2,000 fine, t hat he pay $180 i n restitution to D PS , and that he co m plete the Aftercare Program

— were imposed or modified by the 207th Judicial District C ourt , the court in which a ppellant was tried

.

T he State’s motion to adjudicate included allegations that appellant violated the
term s and conditions of h is super vision b y fa i l ing to pay the $2,000 fine , by fail ing to pay th e (b) The judge of the court ha ving jurisdiction of the case may, at any time during the period of commu nity s u pervision, modify the conditions of community supervision. Except as provided by Article 42A.052(a), only the judge may mo dify the conditions. Tex. Code Crim . Pro c . art. 42A. 051

. We note that a fter a tra n s fer described in subsection (a) , “ th e cou rt ac c e pting jurisdiction subsequently shall proceed as if the defendant ’ s trial and conviction had occurred in that court. ” Id. art. 42A.151 (b). The record does not reflect, and th e State does not contend, that such a t ransfer occurred here.7

$180 restitution to DPS , and b y fail ing to complete the Aftercare Program. Appellant pled true to all of the allegations in the motion to adjudi cate , including the violation of th ese three terms and condi tions. Further, t he tria l court f ound that appellant violated the terms and conditions of his community supervision as alleged in the State’s motion to adjudicate, which specific ally alleged, among other things, that appellant failed to pa y th e $2,00 0 fin e, failed to pay the $180
restitution to DPS , and fa iled to complete the Aftercare Program.

T h us, t h e record demonstrates that the court in which appellant was tried ( the 207th Judicial District Court ) :

• g ranted appellant community supervi sion ;

• impo sed t he fine and restitution as terms and conditions of appellant ’ s supervision in the or iginal order o f deferred a djudication ;

• modified the terms and conditions of appellant ’ s supervision in the May 22, 2017 order modifying conditions of supe rvis ion to i nclud e t he additional condition of completing the Aft erca re Program ;

• accepted appellant ’ s plea of true to violating the terms and conditions of his supervision as alleged in the State ’ s motion to adjudicate

— including appellant ’ s failure to pay the fine, h is fa ilu re to pay the restitution , and his failure to complet e the A ftercare P rogram ;

• revoke d appellant’s community supervision based , in part, on appellant ’ s failure to pay the fine, his failure to pay the restitution , and his failure to comp let e the A ft ercar e P rogram ; and

• adjudicate d appellant ’ s guilt

. Consequently, t h e record supports the trial court ’ s revo cation of app ellant ’s community supervision an d adjudication of guilt. See Tex. Code Crim. Pro c . art s . 42A.051 (a)

– (b) , .754 ; s ee also Garc ia v. St ate , 387 S.W.3d 20, 26 (Tex. Crim. App. 2012) (“[P]roof of a single violation will support revocation.”) ; Smith v. State , 286 S.W.3d 333, 3 42 (Tex. Crim. App. 2009) ( affirm ing that Court of Criminal Appeals has “ long held that ‘o ne sufficient g roun d for8

re v ocat ion wo uld support th e trial court ’ s order revoking’ community supervision”) (quoting Jones v. State , 571 S.W.2d 191, 193 (Tex. Crim. App. 1978))

.

We overrule appellant’s first point of error.

R estitution Order As part of the plea

- barg ain agreemen t in t hi s case, the par ties agreed that appellant would “pay $180.00 Restitution payable to [the] DPS Laboratory.” T he exhi bits admitted in support of appellant’s guilty plea contained a lab report from the Texas Department of Public Safety Cr ime Laborato r y , wh ic h was accompanied b y a form requesting

“ reimbursement to the law enforcement agency , the Texa s Department of Public Safety , Crime
L aboratory , for its c o sts incurred i n the analysis ” o f th e controlled substance in this case ; the form ref lect ed that t he su m of the cost was $180

. In accord ance with the plea agreement and the evidence admitted, t he trial court incorporated the reimbursement for the lab fees into the terms and conditions of appellant ’ s supervision , although the court referre d to the rei m burse me nt as “restitution.” 7 When the t rial court revoked appellant’s community supervision, adjudic ated his guilt, and sentenced him to prison , the trial court ord ered appellant to pay $180 restitution to the Texas Department of Public Safet y .

In his s e cond p oint of error , a ppellant challenges the trial court’s restitution order.
He contends that the trial court did not have authority to order him to pay rest itution to DPS

7 We note that “ r eimbursement” and “restitution” are not identical terms as used in the Code of Cri minal Procedure. See Brown v. State , No. 06

- 11

- 00022

- CR, 2011 WL 3275284, at *1 (Tex. App.

— Te xarkana Aug. 2, 2011, no p et.) (mem. op., not designated for publica tion) (dis c u ssing distinction between “restitution ” and “reimb ursement” in C o de of Criminal Procedure ).9

when the court imposed his twenty

- year prison sentence and thu s , he arg ues , the resti tu tion order is not support ed by sufficient evid ence.

W e begin our analysis by dete rmining whether appellant has p reserved this complaint for appellate review. The State maintains that appellant failed to preserve his challenge to the rest itution o rder fo r appellate review b ecause he fail ed to object to the restitution order when he was placed on deferred adju dicatio n community supervision . The State further

con tends that appellant waived a ny complaint about the restitution order becau se r estituti o n to
DP S was part of the plea bargain. Howe ver, the State conflates reimbursement for lab fees imposed as a condit ion of community supervision ( even though, as note d above , the reimbursement was referred to as “restitution” in this case) with res titution to a vi ctim of the crime

. Compare Tex. Code Crim. Pro c. art. 42A.301 (b)(18) (providing that c onditions of community supervision may include reimbursement for lab fees ), with id. art. 42.037(a) ( granting trial court discretion to order defenda nt t o make r estitu ti on to “ any victim of the offense ” ) ;

s ee Se xton v. State , No. 1 1

- 18

- 00278

- CR, 2019 WL 4316791, at *1 (Tex. Ap p.

— East land Sept. 12, 2019 , pet. ref ’ d) (mem. op., not designated for publication) ( stating that although trial

cou rt has author ity to requi re def en dant to reimburse DPS for lab fees as condition of community

s upervision , trial court has no authority to as sess DP S lab fees as restitution when defendant is sentenced to impri sonment ); Aguilar v. State , 279 S.W.3d 350, 353 (Tex. App.

— Aust in 2007, no
pe t. ) (explaining that trial court can order defendant to pay DPS lab fees “ but only as a condition of community superv isio n ”)

.

Moreover, w hen a defendant receives deferred adjudi cation, no sentence is imposed. Taylor v. State , 131 S.W.3 d 49 7, 502 ( Tex. C ri m. App

. 2004). Th us, w hen the defendant violates a condition of deferred adjudication community supervision, the t rial court10

may proceed to adjudicate guilt, assess punishment, and pronounce sentence. See Tex. Code Crim. Pro c . art. 42 A.11 0 (a) (“A fter a n adjudi cation of gu ilt, all proceedings, including
assessment o f punishment , pronouncement of sentence, granting of community supervision, and defendant ’ s appeal continue as if t he adjudication of guilt had not been deferred.”) ; Ross v. Stat e , No. 0 3

- 00

- 0 02 60

- CR, 2001 WL 579 93, at *1 (Tex. App.

— Austin Jan. 25, 2001, n o pet.) (mem

. op., not designated for publication) ( o bserving that “ [a] mong the consequences of a violation of the conditions of deferred adjudication supervision is adjudica tion of guil t, aft er which
assessment of punishment and imposition of sentence con tinue as if adjudication had not been deferred ”)

. W hen guilt is adjudicated, the judgment adjudicating guilt sets aside the order deferring adjudication. Taylor , 131 S.W.3 d at 502; see Mc Coy v . State , 81 S.W.3 d 917, 919 (Tex. Ap p.

— Dallas 2002, pet. ref ’ d) (“ By adjudicating guilt, the trial court supplants its previous order deferring adjudication of guilt and imposi ng comm unity supervision. ”).

H e re, a fter appellant admitt ed v iolating his su pe rvision condition s, his community

su pervision was revoked, an d the trial court adjudicated his guilt . T he restitution order that appellant challenges here was imposed when he was sentenced to prison upon adjudication , which “set aside ” th e order o f defe rr ed adjudication, including the resti tution previously imposed

as a condition of community supervision

. A sentence that is assessed upon adjudication is not imposed pursuant to a plea bargain

. See Ditto v. State , 988 S.W.2 d 236, 238

– 3 9 (T ex. Crim. App. 19 99) ( observing th at, upon adjudica ti on of guilt after violati on of deferred adjudication community supervision , trial court has no further obligation to comply with plea bargai n because bargain ha s already been satisfied by i nitial sente ncin g). Th us, th e State’s reliance on the previous terms of the plea bargain , or appellant’s failure to object to such, is misplaced.11 T he State further cla ims that appellant is e stopped from raising a sufficiency challenge because he agreed to the restitution t o D PS as part of the plea bargain. See Price

v. Stat e , No. 12

- 10

- 00363

- CR, 2011 WL 3618088, at *3 ( Tex. App.

— Ty ler Aug. 17, 2011, no pet.) (mem. op., not designated for publication) ( stating t hat “ an appellant w aives the right to compla in that a restitution assess ment lacks the necessary evidentiary support when an appellant expressly requests that the trial court assess restitution in a plea ag reement ”) ; A yala v. State , No. 07

- 16

- 00411

- CR, 201 7 WL 3611617, at *2 (Tex. App.

— Amarillo A ug. 10, 2017, pet. ref ’ d) (mem. op., not designated for publication) ( “ By agreeing to the assessment as part of the plea and effectively asking the cour t to abid e by the plea agreement, appellant waived his right to
comp lain that the assessment lacked eviden tiary support .”)

. As w e prev iously noted , h owever, the restitution that the trial court ordered upon appellant’s adjudication was not imposed pursuan t to a pl ea agreement. Furthermore , the plea bargain involved resti tuti on to DPS as a condition of

commun ity supervision. T hus, we ca nnot agree that appellant ’s plea

- bargain agreement

— already satisfied by his in itial placement on community supervision

— es top s him from raising a sufficien cy challenge in this subsequent pro ceed ing

.

Finally , t he State also maintains that appellant’s failu re to object to the restitution order when he was sentenced at the adjud icat ion hearing fai led to preserve thi s complaint for
app ellate review. “If a def endant wishes to complain about the appropriateness of (as opposed to the factual basis for) a t rial c ourt ’ s restit ution order, he must do so in the trial court, and he must do s o ex plicitly.” Idowu v. State , 73 S.W.3d 918, 921 (T ex. Crim. App. 2002); see Tex. R. App.
P. 33.1(a) (providing general preservation of error requirements). However, c hall enges to the suffic iency of the evidence supporting a restitution order can be rai sed for the fir st time on appeal. Idowu , 73 S.W.3d a t 921

– 22 ; see Moore v. St ate , 371 S.W.3d 221, 225 (Tex. Crim. App.12

2012) (explaining that “[i] n contrast to evidence

- suff icienc y challenges, for which no preservation of error is required , challenges to the propriety o f trial

- court rulin gs must be
preserve d for appeal ”); Mayer v. State , 309 S.W.3d 552, 555 (Tex. Crim. App. 2010) (stating that “ a claim regarding sufficiency o f the evidence need not be preserved for appellate review at the t ri al level, and it is not forfe ited by the failure to do so” (quoting Moff v. State, 131 S.W.3 d 485 , 489 (Tex. Crim. App. 2004) )

. The State appears to characterize appellant ’s challenge as a
comp laint to the propriety of the restitution order. Appellant, h owever, ma inta ins that his

co mplaint that DPS is not a victim for p urposes of the restitutio n statute “ is an argument about the sufficiency of the evidence ” supporting the restitution orde r , “ no t the appropr iateness of restitution. ” As appellant present s his compla int, w e agree. We tur n now to the m erits of appellant’s sufficiency challenge

.

A sentencing court may order a defe ndant to pay restitution to “ a ny victim of the of fense. ” Tex . Code Crim. Pro c. art. 42.0 37(a); Hanna v. State , 426 S.W.3d 87, 92 (Tex. Crim. App . 20 14). However,
due process places three limitations on the restitution a trial judge may order: (1) the restitution ordered must be for only the offense for which the defend ant is cr iminally responsible; (2) the restitution must be for only the victim or victims of the o ffense for which t he defendant is charged; and (3) the amount must be just and supported by a factual basis within the record.

Burt v. State , 445 S.W. 3d 752, 758 (Tex . Crim. App. 2014)

. “[ F ] or purposes of the restitution
statute, a ‘ vict im ’ is any person who suffered los s as a direct re sult of the criminal offense. ”
Hanna , 426 S.W.3d at 94. “ The phrase ‘ as a result of the offense ’ includes the not ion of both actual and proximate causation. ” Id. at 95. This Court has previously con clud ed that e xpenses incurred by the T exas Department of Pub lic Safety laboratory in performing its dru g - testing13

f unctions in connection with the investig ation of a crimina l offens e are no t sustained as a result of being a victim o f crime, and are not, the refo re , subject to a restitution order

. 8 Aguilar , 279 S.W.3d at 3 53

.

W e agree with appellant that the evidence in this case is not sufficient to support the restitution order to DPS as a victim of the instan t offe nse und er a rticle 42.0 37(a)

. See Tex. Code Crim. Proc. art. 42.0 37(a); Aguilar , 279 S.W.3d at 3 53

. Therefore , w e sustain appellant ’ s second point of error and m odify the judgment adjudicating guilt to delete th e restit ution or der. 9

8 We note that several of our sister courts of appeals have concluded th e same or issue d opinions consistent with t his conclusion

. See Wesley v. Sta t e , No . 06

- 1 9

- 00269

- CR, 2020 WL 345 6599, at *2 (Tex. App.

— Texarkana June 25, 2020, no pet.) (mem. op., not designated for publication); Britt v. State , No. 13

- 19

- 00166

- CR, 2020 WL 2776530, at *1 n.3 (Tex. App.

— Corpus Chr is ti

– Edinburg May 28, 2020, no pet.) (mem. op., not designated for publ ication); Sheridan v. State , No. 11

- 19

- 00303

- CR, 2020 WL 1887710, at *2 (Tex. App.

— Eastland Apr. 16, 2020, no pet.) (mem. op., not designated for publication); Jackson v. State , 562 S.W .3 d 717, 724 (Tex. App.

— Amarillo 201 8 , no pet.) ; Zimmerman v. State , No

. 05

- 17

- 00492

- CR, 2018 WL 3968419, at *7 (Tex. App.

— Dallas Aug. 20, 2018 , pet

. dism ’d ) (mem. op., not designated for publication) ; King v. State , No. 12

- 17

- 00194

- CR, 2018 WL 345737, at *1 (Tex. App.

— Tyl er Jan. 10, 2018, no pet.) ( me m . op., not designated f or publi cation ); Mi lligan v. State , No. 02

- 16

- 00035

- CR, 2016 WL 6123643, at *1 n.2 (Tex. App.

— Fort Worth Oct. 20, 2 016, no pet.) (mem. op., not desig nated for publication); Abraham v. State , No. 04

- 13

- 0 0180

- CR, 2014 WL 291 7378, at * 1 (Tex. App.

— San Antonio June 25 , 2014 , no pet.) (mem. op., not designated for publication), although one of our sister courts agreed only in part , see Horton v. State, No. 10

– 09

– 00258

– CR, 2010 WL 2010932, at *3 (Tex. App.

— Wac o May 19, 2010, pet. ref'd ) (m e m. op., not designated for publicatio n) ( a greeing that “ DPS does not incur lab fees as the result of being the victim of a crime ” but conc luding that reimbursement for lab fees could be assessed as “reparation”)

. Given this consensus, we are un persuaded b y the State ’s argument that Aguilar departs from recognized principles of causation and “ leads to an absurd result which conflicts with the Legislature’s intent

. ”

9 Because we resolve this issue on sufficiency grounds, we do not add ress appell ant’s alte r native conte ntion that, because the trial court lacked authority to order appellant to pay la b fees as restitution to D PS, the restit ution order was “void , ” other than to note that , in support of that contention , a ppellant asserts that this Cour t “has cha r acterized suc h an impermissible order as void,” citing to our opinion in Ireland v. S tate , No. 03

- 14

- 00616

- CR, 2015 WL 49149 82, a t *1 (Tex. App.

— Austin Aug. 12, 2015, no pet.) (mem. op., not designated for publication)

. However, appellant misre ads that o p inion. While this Court set forth the defendant ’ s argument

— “that the restitution ordered in the wri tten judgment adjud icati ng g u ilt should be14

See Burt , 445 S.W.3d at 75 7

– 5 8 ( holding that deletion of written restitution orde r is appropriate when trial judge does not have statutory authority to impo se specific restitution order).
Imposit ion of Fine
T he trial court senten ced appel lant to twenty years in prison and pro nou nced that
any pa rt of the previously imposed fine would “ remain due and owing

. ” C o nsisten t with that pronouncement, the written ju dgment adjudicating guilt reflects a fine of $2,000 “ with credit for
any mo ney previ ously p aid. ” In his third point of error , ap pellant argu es that the trial cou rt erred in failing to state the exact amount of the fi ne imposed because the court “ did not pronounce how much money was still owing and therefore did not state the amo unt of th e fine

. . . being made a part of Appella nt’s sentence

. ” 10

Generally, a defendant may not assert error pertaining to his sentence or punishment when he failed to object or otherwise raise the error in the trial court. Merc ado

v. State , 718 S.W.2 d 291, 29 6 (Tex. Crim. App. 1986); see Tex. R . Ap p. P . 33.1(a). A defendant ’ s failure to ti mely object, or his acquiescence, may result in the forfeiture of his complaint. See Mercado , 718 S.W.2d at 296. “A sentencing issue may be preserved by objecting at the p unishme nt hearing, or when the sen te nce is p ronounced.” Burt v. State , 396 S .W.3d 574, 577 (Tex. Crim. App. 2013) ; see, e.g . , Idowu , 73 S.W.3d at 92 3

. In some

deleted because it constitutes a void sentence”

— and sustained that point of error, deleting the restit ution orde r because the trial court did not have statutory authority to impose the restitution order at issue i n that case , we did not ho ld that the ord er was “void.” Id. at *2

. It was the defendant , not thi s Court, that characterized it as such.

10 For the same r eason, a ppellant also contend s that the trial c ourt faile d to state the exact amount of the restitution ordered . Howev er , g iven ou r disposition of ap pellant ’ s second point of error , which resulted in the deletion of the restitution or der, we do not addre s s that contention here.15

instance s , “if the appellant did not have the opportunity to obj ect in the punishment hearing,” a
sent encing issue may be raised in a mo tion for new trial. Burt , 396 S.W.3d at 57 7 & n.4

.

Here, as the S tate correctly notes, appellant failed to present any complaint about his sentence

—

including the imposition of the f ine

— to the trial court at the a djudica tion hearing when he was sentenced

.

Appellant appears to su ggest that his f ailu re to object is excus ed be cause his statutory and due proc ess right to have his sentence orally pronounced in his presence was violated

. S ee Burt , 445 S.W.3d at 757 (o bservin g that “ fairness to the defendant requ ires that his
sente nce be ‘ pronou nced o rally in his pr esence ’ ” ) ; Te x. Code Crim. Proc. a rt. 42.03, § 1(a) (providing tha t “ sentence shall be pronounced in the defendant ’ s presence ” )

. However, the

recor d demonst rates t hat appellant was present when his sen tence

— including the fine , which t he

rec ord reflects was the same $2,000 f ine previously imposed

— was orally pronounced and he had the oppor t unity to object to the fine amount . C ontra ry to appellant’s co nt enti on , the unkno wn

“ exact ” amount wa s not t he fin e amount but the portion unpaid and still ow ed by appellant. The fine imposed was $2,000 wh ether appellant had paid $0, $2,000, or so me amount in between ; how muc h appel lant had paid did not impact th e a mount of the fine i mposed

.

B ec ause t he fine was orally pronounced in appellant ’ s presence and appellant had the opport unity to object to the fine amount but did not raise any such complaint at any time before appeal , we conclude that this c ompla int was n ot preser ved for ap pellate review. See Tex. R. App. P. 33.1(a) ; see, e.g. , Hardema n v. State , 1 S.W. 3d 689, 690 (Tex. Crim. App. 1999) (concluding that defend ant failed to preserve error when he was given opportunity to object

w hen se ntence was pronounced but did n o t )

. We overrule appellant’s third point of error.16 Time Credit In his final poin t of error, appellant seeks modification of the written judgment adjudicating guilt to include add itional jail

- time credit agains t his twen ty

- year sent ence .

The trial co u rt is required to credit the senten ce of a criminal defendant for time the defendant spent “in jail for the case . . . from the time of his arrest and confinement until his sentence by the tria l court” except for time s erve d as a condition of com munity su p er vision

. Tex. Code Crim. Proc. ar t. 42.03, § 2(a)(1); see Ex parte Bynum , 772 S.W. 2d 113, 114 (Tex. Crim. App. 1989) (“It is settled that an individual is entitled to all time spent in jail ‘ on said cause.’”). “ T he t rial c ourt is required to g rant the [ de fendant] pre

- sentence jail time c redit when [the] sentence is pronounced. ” Ex par te Ybarra , 149 S.W.3d 147, 148 (Tex. Crim. App. 2004). Further, t he credit for time served must be contained in the trial court ’ s judg ment

. See Tex. Code Crim. Proc. art

. 4 2.01, § 1 ( 18 ) (“The judgment shal l reflect . . . any credit for time serv ed [.]”)

.

When sentencing appellant in this case, the trial court gave appellant “credit for
time serv ed as allowed under the rules and laws o f th is state

. ” The written judg ment of adjudication reflects time cred it for three separate periods that appellant serv ed in jail :

• from his original arrest until his relea se on bond ( “01/ 09/15 to 04/09/15”) ;

• from his arrest after his bond was revoked un t il his placement on communit y supe r vi sio n ( “ 02/04/16 to 07/09 /16 ” ) ; and

• from his arrest on his community

- supe rvision violation until his adjudication and sentencing ( “02/07/18 to 12/20/18 ” ).
Appellant contends that he is entitled to an addition al ten da ys o f jail

- time credit becau se th e

s ec on d period should reflec t time credit from “ 02/04/16 to 07/19/16 ”

— rather than 07/09/16

— because the original plea hearing was on July 19, 2016, rather than July 9, 2016 , and the record17

reflects that appellant was in carc erat ed in jail on this charg e until hi s placement on communi ty supervision on that date. The State does not op pose granting the additional ten day s of time credit, indicating that the date in th e judgment appears to be a typographical error.

This Cou rt h as a uthority to modify inco rrect jud g me nts when the necessary information is availa ble to do so. See Tex. R. A pp. P. 43.2(b); Bigley v. State , 865 S.W.2d 26,
27

– 28 (Tex. Crim. App. 1993). Furt her, this Court has “ the power to modify whatever the tria l

co urt could have corrected by a judgme n t nunc pro tunc when the information necessary to correct the judgment app ears in the record .” Ette v. State , 551 S.W.3d 783, 792 (Tex. App.

— Fort Worth 2017), aff ’ d , 559 S.W.3d 511 (Tex. Crim. App. 2018) ; accord Mo rris v. State , 496 S.W.3d 833, 836 (Tex. Ap p.

— Houston [1st Dist.] 2016, pet. ref ’ d) ; see Ybarra , 149 S.W.3d
at 148 ( explaining that, i n event trial court fai ls to award pre - sentenc e jail

- time credit when sentence is pronounced , trial court has authority to correct judgment to reflect ap propriate ti me credit by judgm ent nunc pro tunc ( citing Tex. R. App. P. Rule 23.2 ) )

.

Accordingl y, we sustain appellant’s fourth point o f error and modify the written judgment adjudicating g uilt with respect to the se cond peri od of time credit , modifying the date
f ro m “ 07/09/16 ” to “ 07/19/1 6

. ”

CONCLUSI ON

We con clu de that the record supports the trial court ’ s revocation of appellant ’ s community supervision and adjudicat ion of guilt , t h at the evidence is not sufficient to supp ort the restitution order to DPS , that a p pel lant failed to preserve his comp laint about t he imposition of the fine for appellant review , and that appellant is entitled to an additional ten days of time credi t against his se ntence

. Accordingly , we modi f y t he written judgment to delete the order o f $ 18018

restitution to th e Texas Department of Public Safety and to reflect that the “ Time Credited ” is

“ FROM 01/09/15 TO 04/09/15 02/04/16 TO 07/ 1 9/16 02/07/18 TO 12/20/18

. ” As so modified , we affirm the tria l cour t ’ s judgment adjudicati ng guilt

.

________________________________ __________ Edward Smith , Justice Before Justices Tri ana, Kell y , and Smith
M o dified and, as Modif

ied, Affirm e d Filed: January 8, 2021
Do N ot Publish