Opinion
06-21-00057-CR
01-19-2022
VIVIAN LEWIS, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Date Submitted: October 11, 2021
On Appeal from the 188th District Court Gregg County, Texas Trial Court No. 50274-A
Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
RALPH K. BURGESS JUSTICE
Appellant Vivian Lewis was incarcerated in the Gregg County Jail and struck a detention officer. She was charged with and convicted of assault on a public servant. Lewis appeals her conviction, challenging the sufficiency of the evidence, the accuracy of the judgment regarding her plea, and the assessment of certain fees in the judgment. Upon review of the record and applicable law, we find (1) that the evidence is sufficient to support the verdict, (2) that the judgment erroneously reflects that Lewis pled guilty, (3) that the trial court erred in imposing attorney fees as a condition of community supervision, (4) that the trial court erred in assessing a time payment fee both in the judgment and as a condition of community supervision, and (5) that the trial court did not err in assessing a $50.00 Crime Stopper fee as a condition of community supervision. We further find that it was error to prematurely impose the time payment fee in the bill of costs. Consequently, we modify the trial court's judgment to reflect that Lewis pled not guilty and by removing the assessment of a time payment fee as part of the court costs. We further modify the judgment by deleting the condition of community supervision requiring Lewis to reimburse the county for court-appointed counsel's attorney fees. Finally, we modify the bill of costs by deleting the prematurely imposed time payment fee. As modified, we affirm the trial court's judgment.
See Tex. Penal Code Ann. § 22.01(b)(1) (Supp.).
I. The Evidence at Trial
Tonya Tucker was a detention officer at the Gregg County Jail. As part of her job, she managed the inmates' shower routine. According to Tucker, her standard procedure was to call inmates' names and inquire if they were going to take a shower, document whether they were going to take a shower, and give them a "hygiene sheet" or "shower setup." On November 10, 2019, while performing those duties, Tucker encountered inmate Lewis. Tucker testified, "I started calling out names to ask them if they're going to take a shower that day. Ms. Lewis kept saying I didn't call her name. And I told her she had to wait until I got to her name . . ." Tucker testified that, when she called Lewis's name, Lewis stated that she intended to shower and that, when Tucker attempted "to hand her a shower setup," Lewis said an expletive.
Tucker declined to repeat Lewis' exact statement, but agreed with the State's assertion that Lewis called her a "bitch" and said "fuck it."
Tucker then became aware that Lewis had either a smock or blanket in her cell. Because Lewis was on suicide watch, Lewis was not allowed that extra piece of personal property, and Tucker removed it to the hall. Tucker testified, "[Lewis] told me she knew I was going to take it." As Tucker continued documenting the names of inmates who would shower, she saw shower shoes, which were also prohibited items, in Lewis's cell. Tucker told Lewis she had to take the shower shoes as well, and Lewis told Tucker that she "wasn't going to take them." According to Tucker, when she reached down to pick up the shoes, Lewis struck her in the face. Tucker testified that she twisted Lewis's arm behind and got a handcuff around one of Lewis's wrists, but Lewis resisted Tucker's attempts to restrain her. During the altercation, Tucker's microphone fell off, but she was able to retrieve the microphone and call for backup assistance. Other staff arrived shortly. Tucker confirmed that she was in uniform and was acting in the course of her duties and in her official capacity as a detention officer.
The supervisor on Tucker's shift that night was Sergeant Donald Whitehead. Whitehead testified that he was in his office when he heard Tucker calling for assistance over the radio. Whitehead testified that Tucker repeated her assistance request "several times quickly over the radio as if something was wrong, something was happening." Whitehead arrived at Lewis's cell to find Tucker and four other female officers restraining Lewis. He escorted Tucker across the hall to the nursing center to debrief her about the situation. Whitehead testified that he "got the impression [Tucker] was assaulted while she was in the scope of her duties." He continued, "She was just trying to take items away from an inmate who was on suicide watch who hadn't been cleared by our county doctor, and the items . . . aren't -- they're not safe for someone who's on suicide watch." Whitehead went on to explain that Lewis had "a pair of shoes and an extra blanket," which "can be a danger to the inmates." In describing Tucker's appearance at the time he encountered her, Whitehead testified, "It was a flustered appearance, when you would think of an adrenaline dump, when she was involved in something physical or some kind of an exercise -- after an exercise how you feel with rigorous exercise." He went on to state that Tucker "was breathing heavily." He also testified, "[W]hen she was speaking it was an excited talk, excited, elevated, faster rate talk than you and I are talking now to know that she was in some kind of stress or that she had just done something to elevate her stress level." Although he thought about taking pictures of Tucker's face, he noted her "skin [was] very dark," and he "couldn't see any abrasions[, ] . . . any bruising[, ] . . . [or any] cuts."
Whitehead admitted that he "couldn't see [Tucker] in pain" and that she was not crying or tearful. However, he also testified, "[S]he told me that it hurt when she was hit, when she was struck." Whitehead further testified that he had the "nursing staff check Ms. Tucker out immediately." One other staff member who helped restrain Lewis went to a local hospital to "have her knee checked out," but Whitehead did not know the extent of her injuries, if any.
Lewis testified that she did not assault Tucker but that Tucker, instead, assaulted her. Lewis testified, "[Tucker] pushed me down and had me up against the block and had me with my head up against the railing, because it's iron, and she tried to bend my wrist to put my hands behind my back." Regarding the shower shoes, Lewis testified,
I had some shoes in the bunk because I'm supposed to have shoes because of my medical condition. I have AIDS. My T-cell counts was only 2. They made a document of that when I first got booked in to [sic] Gregg County Jail. It was already noted as far as the nurse's station go and as far as the doctor go that I'm supposed to have those shoes in the cell because my T-cell counts was so low.
No documentation was offered to support those claims. The State does not contest Lewis's testimony about her medical status. Lewis acknowledged being on psychotropic and antidepressant drugs. Those included Prozac, Remeron, and Mirtazapine, according to Lewis.
Lewis's description of the preceding events was also different from Tucker's testimony. Lewis said, "[Tucker] told me that I wasn't on the shower list at all and told me to sit my A-S-S down." Lewis denied using any expletives in addressing Tucker. Lewis testified that, when Tucker took her blanket, she told Tucker, "Fine, you can take my blanket, but you're not supposed to take the shoes." She denied using an expletive in reference to Tucker. Lewis said she explained to Tucker that the shoes were authorized and asked Tucker to consult "the log" regarding Lewis's medical condition. Lewis testified that Tucker responded by saying, "No, you're not supposed to [have] them," and then told Lewis, "You don't want to 'F' with me."
Lewis also testified that Tucker knew Lewis was authorized to have the shoes "because [Tucker] had already asked questions about those shoes . . . when she got on duty." She also claimed that Tucker had already seen the log that, according to Lewis, documented her authorization for the footwear.
Lewis denied ever striking Tucker but claimed that Tucker had inflicted injuries to her head, elbows, and knees. She denied resisting Tucker's efforts to restrain her but accused Tucker of using such force that Lewis feared her wrist would be broken. Lewis said that she had witnesses to support her version of events, but her attorney "said that he couldn't get [in touch with] them." After considering the testimony, the trial court found Lewis guilty and sentenced her to ten years' imprisonment. The trial court then suspended that sentence and ordered Lewis to participate in community supervision for five years.
II. The Evidence Was Legally Sufficient to Support the Conviction
A. Standard of Review
"In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt." Williamson v. State, 589 S.W.3d 292, 297 (Tex. App.-Texarkana 2019, pet. ref'd) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.); Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.-Texarkana 2010, pet. ref'd)). “Our rigorous legal sufficiency review focuses on the quality of the evidence presented.” Id. (citing Brooks, 323 S.W.3d at 917-18 (Cochran, J., concurring)). “We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury 'to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Id. (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).
"Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge." Id. (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). "The 'hypothetically correct' jury charge is 'one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.'" Id. (quoting Malik, 953 S.W.2d at 240).
"In our review, we consider 'events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act.'" Id. (quoting Hooper, 214 S.W.3d at 13 (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985))). "It is not required that each fact 'point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.'" Id. (quoting Hooper, 214 S.W.3d at 13). "Circumstantial evidence and direct evidence are equally probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone." Id. (citing Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13 (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004))). "Further, 'we must consider all of the evidence admitted at trial, even if that evidence was improperly admitted.'" Id. (quoting Fowler v. State, 517 S.W.3d 167, 176 (Tex. App.-Texarkana 2017), rev'd in part by 544 S.W.3d 844 (Tex. Crim. App. 2018) (citing Moff v. State, 131 S.W.3d 485, 489-90 (Tex. Crim. App. 2004))).
The fact-finder, as "the sole judge of the credibility of the witnesses and the weight to be given their testimony[, could] 'believe all of [the] witnesses' testimony, portions of it, or none of it.'" Williamson, 589 S.W.3d at 297 (quoting Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App. 2014)). "We give 'almost complete deference to a jury's decision when that decision is based upon an evaluation of credibility.'" Id. (quoting Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008)). "The trial judge, when sitting as the sole trier of facts, is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony." Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995).
Lewis waived her right to a jury trial.
To convict Lewis, the State was required to prove that Lewis intentionally, knowingly, or recklessly caused bodily injury to Tucker by hitting her with Lewis's hand and that, at the time of that assault, Tucker was lawfully discharging an official duty. Lewis argues that the evidence was insufficient to prove that she caused any injury to Tucker and that Tucker was lawfully discharging her official duty at the time of the incident. We disagree.
B. Evidence of Injury
Lewis first claims there was insufficient evidence of injury. She points to Whitehead's testimony that there were no observable injuries to Tucker's face after he and other staffers separated Tucker from Lewis. Lewis also cites the absence of any medical evidence to substantiate Tucker's injuries. While it is true that no medical or treatment notes were admitted, the fact Whitehead felt the need to have the staff nurse examine Tucker, who had told Whitehead that "she was struck on the right side of her face," suggests Whitehead had some indication Tucker had suffered injury. Also, Whitehead explained that his inability to observe any injuries was due to Tucker's complexion.
Lewis also points to the fact that Tucker was alone with Lewis in the cell when the altercation occurred and that Tucker's testimony that she sat on Lewis's bunk with Lewis on Tucker's left arguably conflicted with the offense report stating Tucker said she had been hit on the right side of her face. She also points to Tucker's admission on cross-examination: "I can't tell you definitely that -- which side of the face it was." And she points out that she denied having hit Tucker. However, Tucker explained that the incident occurred "almost two years" before trial and that "it happened really fast." "Although faced with conflicting inferences, a reviewing court must presume that the trier of fact resolved any such conflict in favor of the prosecution, and must defer to that resolution." Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). The trial court was free to believe Tucker's version of the events and disbelieve Lewis's version.
In addition, "[t]he Texas Penal Code broadly defines 'bodily injury' as 'physical pain, illness, or any impairment of physical condition.'" Garcia v. State, 367 S.W.3d 683, 688 (Tex. Crim. App. 2012) (quoting Tex. Penal Code Ann. § 1.07(a)(8)). "Any physical pain, however minor, will suffice to establish bodily injury." Id. (citing Laster v. State, 275 S.W.3d 512, 524 (Tex. Crim. App. 2009)). "A fact finder may infer that a victim actually felt or suffered physical pain because people of common intelligence understand pain and some of the natural causes of it." Randolph v. State, 152 S.W.3d 764, 774 (Tex. App.-Dallas 2004, no pet.). Accordingly, we find that the evidence was sufficient to support the trial court's finding that Lewis injured Tucker.
C. Evidence that Tucker Was Performing Official Duty as a Public Servant
Lewis also complains that the evidence was insufficient to prove Tucker was "lawfully discharging an official duty" at the time of the altercation. She argues that the State provided no evidence refuting Lewis's testimony that she was authorized to possess the shoes Tucker removed from her cell, which led to the assault. We disagree.
Tex. Penal Code Ann. § 22.01(b)(1). Lewis testified that she knew Tucker was a detention officer, saw Tucker in her uniform, and understood the rules and policies of the jail.
Lewis testified that she was "supposed to have shoes because of [her] medical condition"; she claimed she had AIDS and a low T-cell count. She testified that her AIDS status was well documented in prison records. She continued, "It was in records and it was in the nurse's station and it was also documented down that I'm supposed to have those shoes in there because of my medical situation." However, when asked if Lewis was allowed to have shoes in her cell, Whitehead answered that a doctor would have to approve an exception allowing Lewis to have shoes in her cell, and Whitehead knew of no such approval. He testified that inmates on suicide watch were "allowed to have shoes when they[] [were] outside of their cell but not when they[] [were] inside of their cell."
Tucker also testified that inmates were limited in the amount of particular personal items they could possess partly because possession of extra of such items could pose a danger to the inmate or others. Among the surplus items that Tucker saw in Lewis's cell was a smock or blanket, and Tucker testified that Lewis said she knew Tucker was going to take that item. This suggests that Lewis knew that the blanket was prohibited. Although Lewis disputed Tucker's version of events, once again, the trial court was the sole judge of the credibility of the witnesses and solely responsible for resolving conflicts in testimony. Viewing the evidence in the light most favorable to the verdict, we find that a rational finder of fact could have disbelieved Lewis's testimony in favor of that of Whitehead and Tucker. Accordingly, we find that the evidence was legally sufficient to support the judgment.
We overrule this point of error.
III. Certain Modifications to the Judgment of Conviction Are Required
A. The Judgment Must Be Modified to Correctly Show Lewis's Plea
In her second point of error, Lewis points out that the trial court's judgment incorrectly states that she pled guilty to the indictment. Lewis waived her right to a jury trial and entered a plea of not guilty to the court, which then heard evidence. At the end of evidence and argument, the trial court found Lewis guilty of the indicted offense. The State agrees that the judgment improperly states Lewis's plea to the court.
"This Court has the power to correct and modify the judgment of the trial court for accuracy when the necessary data and information are part of the record." Anthony v. State, 531 S.W.3d 739, 743 (Tex. App.-Texarkana 2016, no pet.) (citing Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd)). "The authority of an appellate court to reform incorrect judgments is not dependent upon the request of any party, nor does it turn on the question of whether a party has or has not objected in the trial court." Id. (quoting Asberry, 813 S.W.2d at 529-30). Accordingly, we will modify the trial court's judgment to correctly indicate that Lewis pled not guilty to the indicted offense.
B. The Judgment Must Be Modified to Delete the Condition of Community Supervision Requiring Lewis to Reimburse the County for Attorney Fees
Before trial, Lewis claimed indigency, and the trial court appointed an attorney to represent her. However, after convicting Lewis and suspending her sentence, the court required Lewis to pay the fees of her appointed attorney as part of the conditions of her community supervision. The State agrees that this was error.
"Although the trial judge has discretion to determine the amount of the attorney's fee, due process requires that there must be evidence in the record to provide a factual basis for the amount set by the trial court." Meza v. State, 153 S.W.3d 238, 244 (Tex. App.-El. Paso 2004, no pet.). In Meza, as in Lewis's case, there was "no factual basis to support the amount of attorney's fees" imposed in the trial court's community supervision conditions. Id. at 245. Accordingly, we modify the judgment by deleting the condition of community supervision that Lewis reimburse the county for the payment of attorney fees.
In Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2017), the Court of Criminal Appeals held that "the defendant's financial resources and ability to pay are explicit critical elements in the trial court's determination of the propriety of ordering reimbursement of costs and fees." Id. at 556. Further, a "defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant's financial circumstances occurs." Tex. Code Crim. Proc. Ann. art. 26.04(p) (Supp.).
In an unpublished case, this Court found that the trial court erroneously imposed attorney fees as a condition of the defendant's community supervision without any "determination or finding [in the record] by the trial court that there was a material change in [the defendant's] financial circumstances or that he had the financial resources to pay the appointed attorney fees." Escobar v. State, No. 06-18-00120-CR, 2019 WL 1907312, at *2 (Tex. App.-Texarkana Apr. 30, 2019, no pet.) (mem. op., not designated for publication). "Although unpublished opinions have no precedential value, we may take guidance from them 'as an aid in developing reasoning that may be employed.'" Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.-Texarkana 2017, pet. ref'd) (quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.-Amarillo 2003, pet. ref'd)).
C. The Trial Court's Imposition of a Crime Stoppers Fee in the Judgment Did Not Duplicate the Imposition of Payment of Court Costs in the Terms and Conditions of Community Supervision
In her fourth point of error, Lewis complains that there are duplicative court costs assessed against her. After convicting Lewis, the trial court suspended her sentence and placed her on community supervision. The terms and conditions of Lewis's community supervision required her, among other things, to pay a Crime Stopper fee of $50.00. The bill of costs includes the standard, statutorily mandated consolidated court cost of $185.00. Although no Crime Stopper fee was assessed in the bill of costs, the standard court cost includes a percentage allotted to the "crime stoppers assistance account." Tex. Local Gov't Code Ann. § 133.102(e)(1). Lewis claims that, by imposing a Crime Stopper fee in the terms and conditions of community supervision, the court improperly duplicated the Crime Stopper fee already included in the standard court costs.
Lewis is correct that, in some circumstances, courts have improperly assessed a separate Crime Stopper fee where that fee had already been assessed in the court costs. However, Lewis's case is different from those situations. Here, the trial court imposed the statutorily required court costs, part of which were assigned to the "crime stoppers assistance account." See Tex. Local Gov't Code Ann. § 133.102. The court also required that Lewis pay a separate $50.00 fee to Crime Stoppers as a condition of her community supervision. This latter fee is authorized by the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 42A.301(a)(19) (stating that a court may, as a condition of community supervision, require a defendant to "make one payment in an amount not to exceed $50.00 to a crime stoppers organization"). Accordingly, the Crime Stopper Fee imposed as a condition of Lewis's community supervision was not duplicative of the portion of the court costs directed to crime victims' assistance. We overrule this point of error.
Lewis directs us to Phillmon v. State, 580 S.W.3d 377 (Tex. App.-Houston [1st Dist.] 2019), aff'd, 609 S.W.3d 532 (Tex. Crim. App. 2020), and Jackson v. State, 562 S.W.3d 717 (Tex. App.-Amarillo 2018, no pet.). Phillmon was convicted in one trial of two offenses. Phillmon, 580 S.W.3d at 383. The court's judgment for Count 1 assessed court costs, but the judgment for Count 2 did not (see Tex. Code Crim. Proc. Ann. art. 102.073(a)). However, the judgment did include "a line item assessment of $45" for the "Crime Victim's Compensation Act." Id. The State conceded error, and the court found the $45.00 fee in Count 2 was "improperly assessed" because that fee was "assessed twice when considering both judgments together." Id. The Court of Appeals deleted the $45.00 fee from Count 2's judgment. Id. In Jackson, the trial court convicted the defendant of a felony and sentenced him to eight years' confinement. Jackson, 562 S.W.3d at 719. The court's judgment imposed, inter alia, court costs as well as a separate fee of $50.00 payable to Crime Stoppers. Id. at 723. The appellate court struck the $50.00 Crime Stoppers fee because it was "inappropriate to assess a separately-charged fee to Crime Stoppers" where the court costs had already "assess[ed] a percentage of the consolidated court costs to the compensation of victims of crime." Id. at 724.
D. The Holding in Dulin v. State Requires Us to Strike the Time Payment Fee
Lewis's final point of error complains of a time payment fee-$15.00-included in the bill of costs and in the assessment of court costs in both the judgment and the conditions of her community supervision. Lewis cites to the recent Court of Criminal Appeals holding in Dulin v. State, wherein the court concluded that a time payment fee like the one in this case "must indeed be struck for being prematurely assessed because a defendant's appeal suspends the duty to pay court costs and therefore suspends the running of the clock for the purposes of the time payment fee." Dulin v. State, 620 S.W.3d 129 (Tex. Crim. App. 2021). In Dulin, the Court of Criminal Appeals stated, "[A]ssessment of the time payment fee in this case would be premature because appellate proceedings are still pending." Id. The State agrees that Dulin governs this case. Accordingly, pursuant to Dulin, we strike the time-payment fee "in [its] entirety, without prejudice to [it] being assessed later if, more than 30 days after the issuance of the appellate mandate, the defendant has failed to completely pay any fine, court costs, or restitution" owed. Id. We will modify the trial court's bill of costs and judgment by deleting the time payment fee.
IV. Conclusion
We modify the trial court's judgment to reflect that Lewis pled not guilty to the indicted offense and by removing the assessment of a time payment fee as part of the court costs. We modify the judgment by deleting the condition of community supervision requiring Lewis to pay the fees of her court-appointed counsel. Finally, we modify the bill of costs by deleting the prematurely imposed time payment fee. As modified, we affirm the trial court's judgment.
As modified, we affirm the trial court's judgment.