### 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 ARGUMEN T REQUESTED

D. MATT BINGHAM Criminal District Attorney Smith County, Texas
AARON REDIKER Assistant District Attorney State Bar of Texas Number 24046692 Smith County Courthouse, 4 th Floor Tyler, Texas 75702 Phone: ( 903 ) 590

- 1720 Fax: ( 903 ) 590

- 1719 Emai l: arediker@smith

- county.com ACCEPTED 12-14-00163-cr TWELFTH COURT OF APPEALS

TYLER, TEXAS 2/4/2015 11:17:24 PM CATHY LUSK CLERK1 T ABLE OF C ONTENTS

Index of Authorities

................................ ................................ ................................ .... 2

Statement of Facts

................................ ................................ ................................ ...... 3
Summary of Argument

................................ ................................ ............................... 5

I. I SSUE O NE : While a second, nearly identical judgment entered before mandate had issued in a ppellant’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. I SSUES T WO AND T HREE : The assessment of $300 in appointed attorney fees should be deleted from the bill of costs.

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

................................ ................................ ................................ .................. 10

Certificate of Com pliance

................................ ................................ ........................ 12

Certificate of Service

................................ ................................ ................................ 122 I NDEX OF A UTHORITIES

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

................................ ............ 6 Ex part e Seidel , 39 S.W. 3 d 221 (Tex. Crim. App. 2001 )

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

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

................................ ...... 6 Hardy v. State , 297 S.W. 3 d 785 (Tex. App.

— Texarkana 2009 , pet. ref’d)

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

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

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

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

................................ ................. 7 Owen v. State , 352 S.W.3d 542 (Tex. App.

— Amari llo 2011 , pet. ref’d)

................. 10 Simon v. State , 442 S.W. 3 d 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. 3 d 530 (Tex. Crim. App. 1999 )

................................ ................ 7 Sta te v. Moore , 225 S.W. 3 d 556 (Tex. Crim. App. 2007 )

................................ ........... 8

Texas Statutes
T ex. 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)

................................ ................................ ............................ 103 N UMBER 12 - 14 - 00 163 - 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

T O THE H ONORA BLE C OURT OF A PPEALS : 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.

S TATEMENT OF F ACTS After a bench trial, the trial court entered the original judgment of conviction against appellant on 2 April 2007 for the offense of state ja il 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

o f 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, an d appellant pleaded “true” to each alleged violation ( Id . at 123

- 28, 131

- 32 ). Neverthe less, 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 cond itions of supervision, e xtending 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 court5

granted on 1 3 June 2014, finding that appellant had violated the conditions of her community supervision by fail ing to submit mail

- in reports and failing t o obtain a GED ( Id . at 146

- 47 ; I Rep.’s R. at 46 )

.
S UMMARY OF A RGUMENT 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, en tered 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 or iginal 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 impos ition 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 cou rt.6

I. I SSUE O NE : 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 eff ect 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

. S TANDARD OF R EVIEW "The only question legitimately before this Court on a probation revocatio n 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 I sabell v.
State , 494 S.W.2d 572, 573

- 574 (Tex. Cr im

. App. 1973) ). Even one sufficient ground for revocation will support the trial court's order revoking prob ation. Jones v. State , 571 S.W.2d 191, 193 (Tex. Crim. App. 1978)

.
A RGUMENT In his first issue, appellant argues that the judgment and supervision orde r 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. Cri m. 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 or der 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, be7

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. I d . 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

r esulting in a void judgment: (1) the document purporting to be a charging instrument (i.e. indictment, inform ation, 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 misdem eanor 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 incompl ete, 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

- 66 9

. “ A void8

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, 22 5 (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
fil e 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 month 1

. Obtain a GED within 1 year and provide proof to your supervision officer for which you will receive 50 hours credit for Community Service Restitution 2

.

1 Condition 32 in the original supervision order and condition 33 in the 2008 order. 2 Condition 59 in the original su pervision 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 R ep.’s R . at 46 ). The conditions forming
the basis for the revocation of appellant’s community supervision were thus present in the original ju dgment (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 community

supervision 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 i n 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. I SSUES T WO AND T HREE : The assessment of $300 in appointed attorney fees should be deleted from the bill of costs

. A RGUMENT
I n 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 o f 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 t o prepare and file a corrected b ill of c osts and withdrawal notification).11 P RAYER
WH EREFORE, 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, Texa s, in th e above

- captioned cause. Respectfully submitted,
D. MATT BINGHAM Criminal District Attorney Smith County, Texas

/s/ Aaron Rediker Aaron Rediker Assistant District Attorney SBOT #: 2404 6692 100 North Broadway, 4 th Floor Tyler, Texas 75702 Office: ( 903 ) 590

- 1720 Fax: ( 903 ) 590

- 1719 (fax) arediker@smith

- county.com12 C ERTIFICATE OF C OMPLIANCE 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 c alculated by
Microsoft Word 2013

.

/s/ Aaron Rediker Aaron Rediker

C ERTIFICATE OF S ERVICE The undersigned hereby certifies that on this 4 th day of February 2015, t he State’s
Brief in the above

- numbered caus e has been electronically filed, and a legible copy of the State's Brief has been sent by email to James W. Huggler Jr. , attorney fo r appellant,

at jhugglerlaw@sbcglobal.net

.

/s/ Aaron Rediker Aaron Rediker