NUMBER 12-14-00163-CR

IN THE TWELFTH DISTRICT COURT OF APPEALS

TYLER, TEXAS

KATHIE MEADOWS SPEARS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 7th District Court of Smith County, Texas

Trial Cause Number 007-1236-05

STATE’S BRIEF

ORAL ARGUMENT REQUESTED

D. MATT BINGHAM

Criminal District Attorney

Smith County, Texas

AARON REDIKER

Assistant District Attorney

State Bar of Texas Number 24046692

Smith County Courthouse, 4th Floor

Tyler, Texas 75702

Phone: (903) 590-1720

Fax: (903) 590-1719

Email: arediker@smith-county.com

ACCEPTED

12-14-00163-cr

TWELFTH COURT OF APPEALS

TYLER, TEXAS

2/4/2015 11:17:24 PM

CATHY LUSK

CLERK

 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 2/4/2015 11:17:24 PM CATHY S. LUSK Clerk
1

TABLE OF CONTENTS

Index of Authorities....................................................................................................2

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

Summary of Argument...............................................................................................5

I.ISSUE ONE: While a second, nearly identical judgment entered before mandate had 

issued in appellant’s first appeal was void, the original judgment of conviction was still 

in full force and effect at the time appellant violated the conditions of her community 

supervision, and therefore the trial court did not abuse its discretion in granting the 

State’s application to revoke........................................................................................6

Standard of Review.....................................................................................................6

Argument....................................................................................................................6

II.ISSUES TWO AND THREE: The assessment of $300 in appointed attorney fees 

should be deleted from the bill of costs.....................................................................10

Argument..................................................................................................................10

Certificate of Compliance ........................................................................................12

Certificate of Service................................................................................................12
2

INDEX OF AUTHORITIES

Texas Cases

Davis v. State, 195 S.W.3d 708 (Tex. Crim. App. 2006)............................................6

Ex parte Seidel, 39 S.W.3d 221 (Tex. Crim. App. 2001)............................................8

Ex parte Spaulding, 687 S.W.2d 741 (Tex. Crim. App. 1985) ...................................8

Flournoy v. State, 589 S.W.2d 705 (Tex. Crim. App. 1979) ......................................6

Hardy v. State, 297 S.W.3d 785 (Tex. App.—Texarkana 2009, pet. ref’d) ................9

Isabell v. State, 494 S.W.2d 572 (Tex. Crim. App. 1973) ..........................................6

Jones v. State, 571 S.W.2d 191 (Tex. Crim. App. 1978)............................................6

Lundgren v. State, 434 S.W.3d 594 (Tex. Crim. App. 2014)......................................9

Nix v. State, 65 S.W.3d 664 (Tex. Crim. App. 2001) .................................................7

Owen v. State, 352 S.W.3d 542 (Tex. App.—Amarillo 2011, pet. ref’d) .................10

Simon v. State, 442 S.W.3d 581 (Tex. App.—San Antonio 2014, no pet.).................9

Spears v. State, No. 12-07-00168-CR, 2008 Tex. App. LEXIS 98 (Tex. App.—Tyler 

Jan. 9, 2008, no pet.) ..............................................................................................4

Speth v. State, 6 S.W.3d 530 (Tex. Crim. App. 1999) ................................................7

State v. Moore, 225 S.W.3d 556 (Tex. Crim. App. 2007)...........................................8

Texas Statutes

Tex. Code Crim. Proc. Ann. art. 42.12, § 15(b).........................................................4

Texas Rules

Tex. R. App. P. 25.2(g) ..............................................................................................9

Tex. R. App. P. 27.1(b) ............................................................................................10

Tex. R. App. P. 34.5(d) ............................................................................................10
3

NUMBER 12-14-00163-CR

IN THE TWELFTH DISTRICT COURT OF APPEALS

TYLER, TEXAS

KATHIE MEADOWS SPEARS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 7th District Court of Smith County, Texas

Trial Cause Number 007-1236-05

STATE’S BRIEF

TO THE HONORABLE COURT OF APPEALS:

Comes now the State of Texas, by and through the undersigned Assistant Criminal 

District Attorney, respectfully requesting that this Court overrule appellant’s first 

alleged issue, and after the assessment of attorney fees is deleted from the bill of costs,

affirm the judgment of the trial court in the above-captioned cause.

STATEMENT OF FACTS

After a bench trial, the trial court entered the original judgment of conviction 

against appellant on 2 April 2007 for the offense of state jail felony theft (Clerk’s R. 
4

at 71-72). Appellant received a sentence of confinement for two years in the Texas 

Department of Criminal Justice—State Jail Division, probated for a term of five years 

under numerous conditions of supervision (Id. at 71-76). This Court affirmed her 

conviction on 9 January 2008, issuing its mandate on 27 March 2008 (Id. at 88-90). 

Spears v. State, No. 12-07-00168-CR, 2008 Tex. App. LEXIS 98 (Tex. App.—Tyler 

Jan. 9, 2008, no pet.) (mem. op., not designated for publication). On 5 March 2008, 

three weeks before issuance of the mandate, the trial court entered a second judgment 

of conviction, almost identical to the first, with nearly the same conditions of 

community supervision (Clerk’s R. at 93-98). Only the dates and names of counsel of 

record for each party were changed in the second judgment (Id. at 93-94), and the 

specific conditions of community supervision forming the basis of appellant’s 

subsequent revocation are identical in each probation order (Id. at 73-76, 95-98). On 

25 April 2011, the State filed its first application to revoke appellant’s community 

supervision, and appellant pleaded “true” to each alleged violation (Id. at 123-28, 131-

32). Nevertheless, the State’s application to revoke was dismissed on 30 November 

2011, and at the end of the following year, the trial court amended the conditions of 

supervision, extending the term for an additional five years (Id. at 131-32). See Tex. 

Code Crim. Proc. Ann. art. 42.12, § 15(b) (West 2014). On 2 April 2014, the State 

filed its second application to revoke (Clerk’s R. at 134-37), which the trial court 
5

granted on 13 June 2014, finding that appellant had violated the conditions of her 

community supervision by failing to submit mail-in reports and failing to obtain a GED 

(Id. at 146-47; I Rep.’s R. at 46). 

SUMMARY OF ARGUMENT

As the original judgment of conviction and conditions of community supervision 

were not void, the trial court did not abuse its discretion in revoking appellant’s 

supervision. The original judgment remained in full force and effect despite the 

subsequent void judgment, entered by the trial court before this Court had issued its 

mandate in a prior appeal. As the conditions forming the basis of the revocation were 

contained in the original judgment and supervision order, the trial court properly 

revoked appellant’s community supervision after finding that she had violated them. 

Lastly, while neither the judgment revoking appellant’s supervision nor the withdrawal 

order show the imposition of any court costs, the bill of costs does reflect the 

assessment of $300 in appointed attorney fees. Thus, the Court should order the trial 

court clerk to delete the appointed attorney fees from the bill of costs, or abate the 

appeal and remand the cause for entry of an appealable order by the trial court.
6

I. ISSUE ONE: While a second, nearly identical judgment entered before 

mandate had issued in appellant’s first appeal was void, the original judgment 

of conviction was still in full force and effect at the time appellant violated the 

conditions of her community supervision, and therefore the trial court did not 

abuse its discretion in granting the State’s application to revoke.

STANDARD OF REVIEW

"The only question legitimately before this Court on a probation revocation 

proceeding is whether or not there was an abuse of discretion in the trial court," 

Flournoy v. State, 589 S.W.2d 705, 709 (Tex. Crim. App. 1979) (quoting Isabell v. 

State, 494 S.W.2d 572, 573-574 (Tex. Crim. App. 1973)). Even one sufficient ground 

for revocation will support the trial court's order revoking probation. Jones v. State, 

571 S.W.2d 191, 193 (Tex. Crim. App. 1978).

ARGUMENT

In his first issue, appellant argues that the judgment and supervision order entered

on 5 March 2008 were void, and the trial court’s subsequent revocation of her 

community supervision was therefore an abuse of discretion (Appellant’s Br. 5, 7-8). 

As the Court of Criminal Appeals explained in Davis v. State, 195 S.W.3d 708, 710

(Tex. Crim. App. 2006):

In Basaldua v. State, we recognized, in the "regular" probation context, that the 

Legislature has authorized appeal in two instances: (1) from an order granting 

probation and (2) from an order revoking probation. There is no legislative 

authority for entertaining a direct appeal from an order modifying the conditions 

of community supervision. A complaint about a modification can, however, be 
7

raised in an appeal from a revocation if the validity of the revocation depends 

on the validity of the modification. (footnotes omitted).

However, “[a] complaint about a condition that was not a basis for revocation,” will 

not be considered on direct appeal. Id. at 711. “[A] defendant can raise on appeal 

from a revocation proceeding an error in the original plea hearing if the error would 

render the original judgment void.” Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 

2001). “The sentence and the conditions of community supervision are each separate 

parts of the ‘judgment.’” Speth v. State, 6 S.W.3d 530, 532 (Tex. Crim. App. 1999). 

In Nix, the Court of Criminal Appeals provided a nearly exhaustive list of errors 

resulting in a void judgment: 

(1) the document purporting to be a charging instrument (i.e. indictment, 

information, or complaint) does not satisfy the constitutional requisites of a 

charging instrument, thus the trial court has no jurisdiction over the defendant, 

(2) the trial court lacks subject matter jurisdiction over the offense charged, such 

as when a misdemeanor involving official misconduct is tried in a county court 

at law, (3) the record reflects that there is no evidence to support the conviction, 

or (4) an indigent defendant is required to face criminal trial proceedings 

without appointed counsel, when such has not been waived, in violation of 

Gideon v. Wainwright. 

Nix, 65 S.W.3d at 668 (footnotes omitted). Further, “for a judgment to be void, the 

record must leave no question about the existence of the fundamental defect. If the 

record is incomplete, and the missing portion could conceivably show that the defect 

does not in fact exist, then the judgment is not void, even though the available portions 

of the record tend to support the existence of the defect.” Id. at 668-669. “A void 
8

judgment is a nullity from the beginning, and is attended by none of the consequences 

of a valid judgment. It is entitled to no respect whatsoever because it does not affect, 

impair, or create legal rights.” Ex parte Seidel, 39 S.W.3d 221, 225 (Tex. Crim. App. 

2001) (quoting Ex parte Spaulding, 687 S.W.2d 741, 745 (Tex. Crim. App. 1985)

(Teague, J., concurring)).

Regarding the second voiding defect listed in Nix, “the subject-matter jurisdiction 

of the trial court over the case and the defendant extends, should the defendant timely 

file a sufficient notice of appeal, to the point in time at which the record is filed in the 

appellate court.” State v. Moore, 225 S.W.3d 556, 568 (Tex. Crim. App. 2007). As 

the trial court lacked jurisdiction to enter the 2008 judgment and supervision order 

before this Court had issued its mandate in the appeal of the original judgment of 

conviction, the 2008 judgment appears to be void. However, both the original 

supervision order and the 2008 order contained the following identical conditions

(Clerk’s R. at 73-76, 95-98):

If supervision of your case is transferred from Smith County, send completed, 

dated and signed mail-in reports to your Smith County Supervision Officer by 

the 15th of each month1.

Obtain a GED within 1 year and provide proof to your supervision officer for 

which you will receive 50 hours credit for Community Service Restitution2. 

 

1 Condition 32 in the original supervision order and condition 33 in the 2008 order.

2 Condition 59 in the original supervision order and condition 60 in the 2008 order.
9

At the revocation hearing on 13 June 2014, and based on her pleas of “true”, the trial 

court found that appellant had violated both of these conditions as alleged in the State’s 

application to revoke (Id. at 134-37, 146-47; I Rep.’s R. at 46). The conditions forming 

the basis for the revocation of appellant’s community supervision were thus present in 

the original judgment (Clerk’s R. at 73-76). “[I]f a defendant files a timely and 

effective notice of appeal, that filing stays the commencement of the communitysupervision term imposed until appellate mandate has issued affirming the judgment 

of conviction.” Lundgren v. State, 434 S.W.3d 594, 598 (Tex. Crim. App. 2014). See

Tex. R. App. P. 25.2(g). After this Court issued its mandate on 27 March 2008, 

Conditions 32 and 59 in the original judgment remained in full force and effect and 

were unaffected by the void judgment subsequently entered by the trial court. See 

Hardy v. State, 297 S.W.3d 785, 792 (Tex. App.—Texarkana 2009, pet. ref’d)

(original order placing defendant on community supervision in full force and effect 

despite subsequent void order releasing him from supervision). Cf. Simon v. State, 442 

S.W.3d 581, 585 (Tex. App.—San Antonio 2014, no pet.) (modification of 

supervision order before mandate issued was void, and because subsequent revocation 

based solely on violation of that condition, trial court abused its discretion). Therefore, 

the trial court did not abuse its discretion in revoking appellant’s community 

supervision based on these conditions, and her first alleged issue should be overruled. 
10

II. ISSUES TWO AND THREE: The assessment of $300 in appointed attorney 

fees should be deleted from the bill of costs.

ARGUMENT

In her second and third issues, appellant argues that the trial court erred by 

imposing appointed attorney fees as court costs and that the Smith County District 

Clerk erred by including these fees in the itemized bill of costs (Appellant’s Br. 9-15). 

The record does not reflect the trial court’s imposition of any court costs following the 

revocation of appellant’s supervision, either in the judgment or the withdrawal order 

(Clerk’s R. at 146-51). However, the bill of costs does show the assessment of $300

in appointed attorney fees as court costs by the District Clerk (Id. at 151-52). While 

the bill of costs itself does not appear to be a final, appealable order, and the appellant’s 

claims are most likely premature, this Court may abate the appeal, remand the cause 

for entry of an appealable order granting or denying relief on the erroneous bill of 

costs, and then order the trial court clerk to prepare and file a corrected bill, if 

necessary. See Tex. R. App. P. 27.1(b), 34.5(d); Owen v. State, 352 S.W.3d 542, 548 

(Tex. App.—Amarillo 2011, pet. ref’d) (appeal abated and cause remanded for entry 

of final, appealable order by trial court and trial court clerk subsequently ordered to 

prepare and file a corrected bill of costs and withdrawal notification).
11

PRAYER

WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that the 

Court overrule appellant’s first issue, and after the assessment of attorney fees is 

deleted from the bill of costs, affirm the judgment of the 7th District Court of Smith 

County, Texas, in the above-captioned cause.

Respectfully submitted,

D. MATT BINGHAM

Criminal District Attorney

Smith County, Texas

/s/ Aaron Rediker

Aaron Rediker

Assistant District Attorney

SBOT #: 24046692

100 North Broadway, 4th Floor

Tyler, Texas 75702

Office: (903) 590-1720

Fax: (903) 590-1719 (fax)

arediker@smith-county.com
12

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned attorney 

certifies that the word count for this document is 1,900 words as calculated by 

Microsoft Word 2013.

/s/ Aaron Rediker

Aaron Rediker

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this 4th day of February 2015, the State’s 

Brief in the above-numbered cause has been electronically filed, and a legible copy of 

the State's Brief has been sent by email to James W. Huggler Jr., attorney for appellant, 

at jhugglerlaw@sbcglobal.net.

/s/ Aaron Rediker

Aaron Rediker