Opinion
NO. 03-15-00332-CR
05-05-2017
Terri Regina Lang, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF BURNET COUNTY, 424TH JUDICIAL DISTRICT
NO. 42185 , THE HONORABLE EVAN C. STUBBS, JUDGE PRESIDING MEMORANDUM OPINION
A jury convicted appellant Terri Regina Lang of the offense of organized retail theft involving merchandise valued at $500 or more but less than $1,500, see Tex. Penal Code § 31.16(b)(1), (c)(3), and the trial court assessed her punishment at confinement for 20 months in a state jail facility, see id. §§ 31.16(c)(3), 12.35. On appeal, appellant challenges the sufficiency of the evidence and complains about the imposition of court-appointed attorney's fees. We find no reversible error. However, through our own review of the record, we have found non-reversible clerical error in the written judgment of conviction. Sustaining appellant's complaint about attorney's fees, we will modify the judgment to correct the errors and, as modified, affirm the trial court's judgment of conviction.
Effective September 1, 2015, subsection (c) of the organized retail theft statute was amended to change the value ladder and offense classification scheme for the offense. See Act of May 25, 2007, 80th Leg., R.S., ch. 1274, § 1, sec. 31.16, 2007 Tex. Gen. Laws 4258, amended by Act of May 31, 2015, 84th Leg., R.S., ch. 1251, § 13, sec. 31.16, 2015 Tex. Gen. Laws 4209, 4215 (current version at Tex. Penal Code § 31.16). However, because the value and classification changes in the statute are not implicated by the issues in this appeal, we cite to the version of the statute in effect at the time of the offense in this opinion.
BACKGROUND
Because the parties are familiar with the facts of the case, its procedural history, and the evidence adduced at trial, we provide only a general overview of the facts of the case here. We provide additional facts in the opinion as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.1, 47.4. The facts recited are taken from the testimony and other evidence presented at trial.
As appellant was shopping at HEB, an employee observed her putting the groceries and merchandise items inside reusable bags in her cart instead of directly in the cart. The employee thought this unusual and continued to observe appellant as she shopped for about one hour before she approached the checkout. In addition to several reusable bags inside of the cart, appellant had one bag tied to the right-hand side of the cart away from the register. The employee saw appellant remove all the bags inside the cart and place them on the conveyor belt for the cashier to scan. She did not do so with the bag tied to the side of the cart. The employee alerted her manager about the possibility of someone leaving the store with merchandise not paid for.
After appellant paid for the items scanned by the cashier, she headed toward the main doors to exit the store, opening a beverage that she removed from the bag tied to the side of the cart on the way. The employee and her manager stopped appellant before she left the store, returned her inside, and called the police. The value of the items in the bag tied to the cart, which appellant had not paid for, was $582.10. The cost of the purchased items was $262.17.
DISCUSSION
In her first two points of error, appellant challenges the sufficiency of the evidence supporting her conviction for organized retail theft.
Sufficiency of the Evidence
Due process requires that the State prove, beyond a reasonable doubt, every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014). When reviewing the sufficiency of the evidence to support a conviction, we consider all the evidence in the light most favorable to the verdict to determine whether, based on that evidence and the reasonable inferences therefrom, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). We assume that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. Jackson, 443 U.S. at 318; see Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009).
Because factfinders are permitted to make reasonable inferences, "[i]t is not necessary that the evidence directly proves the defendant's guilt; circumstantial evidence is as probative as direct evidence in establishing the guilt of the actor, and circumstantial evidence alone can be sufficient to establish guilt." Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)); see Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016); Nowlin v. State, 473 S.W.3d 312, 317 (Tex. Crim. App. 2015). The standard of review is the same for direct and circumstantial evidence cases. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); Nowlin, 473 S.W.3d at 317; Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014).
Appellant was charged by indictment with the offense of organized retail theft under Penal Code section 31.16. The indictment alleged, in relevant part, that appellant
did then and there intentionally conduct and promote and facilitate an activity in which [appellant] received and possessed and concealed and stored stolen retail merchandise, to wit: groceries, herbal supplements, energy drinks and animal treats, and the total value of the merchandise involved in the activity was greater than $500 but less than $1500[.]See Tex. Penal Code § 31.16(b)(1). In challenging the sufficiency of the evidence, appellant maintains that the evidence is insufficient to support her conviction because "organized retail theft is not an activity that can be committed alone through ordinary shoplifting." She makes two arguments regarding sufficiency of the evidence. First, appellant argues that the evidence was insufficient because organized retail theft cannot be committed alone and there was no evidence that appellant acted with others. Second, appellant asserts that the evidence was insufficient because the offense cannot be committed by "merely shoplifting." Appellant presents her sufficiency argument by raising two "conundrums": "[C]an an ordinary shoplifter commit organized retail theft when acting alone, and relatedly, can such a shoplifter commit organized retail theft by the very act of shoplifting, that is, does the statute criminalize the underlying theft?" (emphases in brief).
To resolve these questions, and appellant's sufficiency challenges, we must construe the organized retail theft statute. See Boston v. State, 410 S.W.3d 321, 325 (Tex. Crim. App. 2013) (construing robbery statute to resolve appellant's claim that evidence was insufficient). In analyzing a statute, we "seek to effectuate the 'collective' intent or purpose of the legislators who enacted the legislation." Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991); see Cary v. State, 507 S.W.3d 750, 756 (Tex. Crim. App. 2016); Johnson v. State, 423 S.W.3d 385, 394 (Tex. Crim. App. 2014). To do so, we first look to the literal text of the statute because "the text of the statute is the law in the sense that it is the only thing actually adopted by the legislators, probably through compromise, and submitted to the Governor." Whitfield v. State, 430 S.W.3d 405, 408 (Tex. Crim. App. 2014) (quoting Boykin, 818 S.W.2d at 785). To determine the plain meaning of the statutory language, we consult dictionary definitions, apply the normal rules of grammar and common usage, and consider words and phrases in context. Cary, 507 S.W.3d at 756; Ex parte Perry, 483 S.W.3d 884, 902 (Tex. Crim. App. 2016); Yazdchi v. State, 428 S.W.3d 831, 837 (Tex. Crim. App. 2014); see Tex. Gov't Code § 311.011(a). We presume that every word in a statute has been used for a purpose and that each word, clause, and sentence should be given effect if reasonably possible. Cary, 507 S.W.3d at 756; Perry, 483 S.W.3d at 902-03; Yazdchi, 428 S.W.3d at 837.
We give effect to the plain meaning of the statute's language unless the language is ambiguous or the plain meaning leads to absurd results that the Legislature could not have possibly intended. Cary, 507 S.W.3d at 756; Chase v. State, 448 S.W.3d 6, 11 (Tex. Crim. App. 2014); Boykin, 818 S.W.2d at 785. Only if the text of a statute is ambiguous, or the plain meaning leads to such absurd results, should we review extra-textual resources to discern the collective intent of the legislators that voted to pass the bill. Cary, 507 S.W.3d at 756; Boykin, 818 S.W.2d at 785. Ambiguity exists when the statutory language may be understood by reasonably well-informed persons in two or more different senses; conversely, a statute is unambiguous when it permits only one reasonable understanding. State v. Schunior, 506 S.W.3d 29, 34-35 (Tex. Crim. App. 2016); Phillips v. State, 463 S.W.3d 59, 65 (Tex. Crim. App. 2015); Yazdchi, 428 S.W.3d at 838; see Chase, 448 S.W.3d at 11 (statute is ambiguous when it is "reasonably susceptible to more than one understanding").
Appellant relies on section 311.023 of the Government Code, which articulates relevant factors that courts may consider when construing a statute "whether or not the statute is considered ambiguous on its face," see Tex. Gov't Code § 311.023, to engage in a review of the legislative history of the statute to support his claim that "an absurdity results." However, the Court of Criminal Appeals has determined that despite the broad latitude afforded by the Legislature in the Code Construction Act, only if the statutory language is ambiguous, or leads to absurd results that the Legislature could not have possibly intended, may courts consult extra-textual sources. See Gipson v. State, 428 S.W.3d 107, 112 (Tex. Crim. App. 2014); Johnson, 423 S.W.3d at 394; see also Whitfield, 430 S.W.3d at 408 ("If the plain language of a statute would lead to absurd results, or if the language is not plain but rather ambiguous, then and only then, out of absolute necessity, is it constitutionally permissible for a court to consider . . . such extra textual factors as executive or administrative interpretations of the statute or legislative history.") (quoting Boykin, 818 S.W.2d at 785-86); Ex parte Spann, 132 S.W.3d 390, 393 (Tex. Crim. App. 2004) ("[D]espite the broad latitude afforded by the legislature [in Government Code section 311.023], this Court considers 'extra-textual factors' such as legislative history only when the plain language of the statute is 'ambiguous' or when a literal interpretation would lead to 'absurd results.'") (citing Boykin, 818 S.W.2d at 785). As an intermediate appellate court, we are bound by the decisions of the Texas Court of Criminal Appeals in criminal cases and have no authority to disregard or overrule them. See Ex parte Quyen Trung Ly, 409 S.W.3d 843, 844 (Tex. App.—Beaumont 2013, no pet.); Lockard v. State, 364 S.W.3d 920, 924-25 (Tex. App.—Amarillo 2012, no pet.); State v. DeLay, 208 S.W.3d 603, 607 (Tex. App.—Austin 2006), aff'd sub nom. State v. Colyandro, 233 S.W.3d 870 (Tex. Crim. App. 2007); see also Tex. Const. art. V, § 5 (a) (providing that Texas Court of Criminal Appeals is final authority for interpreting criminal law in Texas). Accordingly, we must first analyze the organized retail theft statute to determine if the statute is ambiguous or its plain meaning leads to absurd results that the Legislature could not have possibly intended before we may resort to extra-textual sources, such as the legislative history of the statute.
The State does not address the issue of whether the organized retail theft statute is ambiguous or whether the plain meaning of the statutory language would lead to an absurd result, but also references legislative intent in its argument.
Penal Code section 31.16, the organized retail theft statute, provides,
A person commits an offense if the person intentionally conducts, promotes, or facilitates an activity in which the person receives, possesses, conceals, stores, barters, sells, or disposes of:Tex. Penal Code § 31.16(b). "Retail merchandise" is defined as "one or more items of tangible personal property displayed, held, stored, or offered for sale in a retail establishment." Id. § 31.01(11). The range of punishment for the offense is dictated by "the total value of the merchandise involved in the activity." See id. § 36.16(c). The statute also provides for increased punishment when the person engages in certain aggravating conduct when committing the offense. See id. § 36.16(d).
(1) stolen retail merchandise; or
(2) merchandise explicitly represented to the person as being stolen retail merchandise.
In analyzing whether the statute can be violated by an "ordinary shoplifter" acting alone, we first observe that the statute has no explicit language regarding acting with others as compared to other provisions within the Penal Code expressly referring to the conduct of others. See, e.g., Tex. Penal Code §§ 71.02 (a) (providing that person who commits offense of engaging in organized criminal activity must act with intent to act with others (in a "combination") to commit one or more of certain enumerated offenses), 71.01(a) (defining "combination").
Specifically, section 71.02 provides
A person commits an offense if, with the intent to establish, maintain, or participate in a combination or in the profits of a combination or as a member of a criminal street gang, the person commits or conspires to commit one or more of [certain enumerated offenses].)Tex. Penal Code § 71.02 (a) (emphasis added). Under section 71.01,
"Combination" means three or more persons who collaborate in carrying on criminal activities, although:Id. § 71.01(a); see also id. § 71.01(d) (defining "criminal street gang").
(1) participants may not know each other's identity;
(2) membership in the combination may change from time to time; and
(3) participants may stand in a wholesaler-retailer or other arm's-length relationship in illicit distribution operations.
In her analysis, while acknowledging that the term "conduct" is "sometimes used generally to mean 'do,'" appellant focuses on alternative definitions to aver that "in its precise meanings [conduct] generally requires leading directing, guiding, and so forth." In addition, appellant cites to dictionary definitions defining "promote" as to "help (something) to grow or develop" and defining "facilitate" as to "make [something] easier [or] help bring [it] about." Based on these definitions, appellant argues that each of these terms "requires or implies the involvement of someone else" or "[implies] group activity to a common purpose." We disagree that collective or group action is required by the statute.
After conducting our review of dictionary definitions of these terms, see Lopez v. State, 253 S.W.3d 680, 685 (Tex. Crim. App. 2008) ("We initially consult dictionary definitions for the plain meaning of a word[.]"); Olivas v. State, 203 S.W.3d 341, 345-46 (Tex. Crim. App. 2006) (looking to common dictionary definitions for guidance in determining plain meaning of undefined words in Penal Code), we conclude that the definitions of these terms do not require (and are not limited to) collective behavior or group involvement. For example, the most common dictionary definitions for "conduct" include:
• to organize and carry out; behave in a specified way; see https://en.oxforddictionaries.com/definition/ conduct;See also https://www.merriam-webster.com/thesaurus/conduct ("to manage the actions of (oneself) in a particular way."). The most common dictionary definitions for "promote" include:
• to direct or take part in the operation or management of; see https://www.merriam-webster.com/dictionary/conduct;
• to behave or manage (oneself); to direct in action or course; manage; carry on; see http://www.dictionary.com/browse/conduct; and
• to do or carry out; to behave or manage (oneself); see https://www.collinsdictionary.com/dictionary/english/conduct.
• to support or actively encourage (a cause, venture, etc.); further the progress of; see https://en.oxforddictionaries.com/definition/promote;The most common definitions of "facilitate" include:
• to contribute to the growth or prosperity of; further; see https://www.merriam-webster.com/dictionary/promote;
• to help or encourage to exist or flourish; further; see http://www.dictionary.com/browse/promote; and
• to further or encourage the progress or existence of; see https://www.collinsdictionary.com/dictionary/english/promote.
• to make (an action or process) easy or easier; see https://en.oxforddictionaries.com/definition/ facilitate;In looking at the definitions of these terms, although an individual's behavior may contribute toward a greater collective effort or a broader group objective, the requirement of collective action or group behavior is not inherent in the definitions.
• to make easier; help bring about; see https://www.merriam-webster.com/dictionary/facilitate;
• to make easier or less difficult; help forward (an action, a process, etc.); and see http://www.dictionary.com/browse/facilitate;
• to make easier; assist the progress of; see https://www.collinsdictionary.com/dictionary/english/facilitate.
Moreover, appellant's interpretation defines these terms out of context. See Tex. Gov't Code § 311.011(a) (mandating that statutory words are to be "read in context"); see also Nguyen v. State, 1 S.W.3d 694, 696 (Tex. Crim. App. 1999) ("[W]e endeavor to give effect to the whole statute, which includes each word and phrase, if possible. . . . [W]e cannot interpret a phrase [or word] within a statute in isolation[.]"); Thomas v. State, 919 S.W.2d 427, 430 (Tex. Crim. App. 1996) ("We always strive to give words and phrases meaning within the context of the larger provision."). The statute refers to the actor committing the offense (the defendant) in the singular: "a person commits an offense" with no mention of other actors. The prohibited behavior is defined by the terms "conducts, promotes, or facilitates," which are transitive verbs that are part of a phrase that includes a direct object: "an activity." "Activity" is defined as:
• a specific deed, action, function, or sphere of action; see http://www.dictionary.com/browse/activity;This indicates that what the defendant "conducts, promotes, or facilitates" is a thing, not a person. This interpretation is reinforced by subsection (d)(1) of the statute, which increases the punishment for the offense to the next higher category "if it is shown on the trial of the offense that . . . the person organized, supervised, financed, or managed one or more other persons engaged in an activity described by Subsection (b)." Tex. Penal Code § 31.16(d)(1). When the statute envisions the defendant acting in concert with others, it directly states that relationship. The direct object of the transitive verbs used in this subsection is "one or more persons." Thus, in contrast to the direct object following the transitive verbs used in defining the prohibited behavior, in subsection (d) what the defendant "organize[s], supervise[s], finance[s], or manage[s]" is a person (or persons), not a thing. Further, the aggravating factor under subsection (d)(1) is the organization, supervision, financing, or management of "one or more other persons engaged in an activity described by Subsection (b)." Id. (emphases added). Thus, subsection (d)(1) makes clear that a single person can engage in the prohibited behavior defined in the statute, i.e., "an activity described by Subsection (b)."
• any specific deed, action, pursuit; see https://www.collinsdictionary.com/dictionary/english/activity;
• a specified pursuit in which a person partakes; and see http://www.thefreedictionary.com/activity;
• a pursuit in which a person is active; see https://www.merriam-webster.com/dictionary/activity.
Appellant asserts that "by using the word 'activity[,'] the legislature cannot simply have meant 'doing' or 'action'—the law always proscribes conduct—but rather something more. That 'something more' must be something done with someone else." However, the statutory language does not support appellant's construction of the "something more" associated with "activity." The term "activity" is modified by the dependent clause "in which the person receives, possesses, conceals, stores, barters, sells, or disposes of" stolen retail merchandise. This clause uses a definite article to refer to the actor, "the person," which refers back to the single actor who "conducts, promotes, or facilitates" the activity. From a plain reading of the statute, the "something more" is that the "activity" be one that causes the actor to "receive, possess, etc." stolen retail merchandise, not that it be done with others.
Reading all words and phrases in context, the statute is violated when a person "organizes, carries out, takes part in, does" (per the definition of conducts), "furthers, helps" (per the definition of promotes), "makes easier, or helps bring about" (per the definition of facilitates) a "specified action or pursuit" (per the definition of activity) where that person "receives, possesses, conceals, stores, barters, sells, or disposes of" stolen retail merchandise. Nothing in the statutory language requires that the person committing the offense work with others when engaging in the prohibited behavior.
Appellant claims that "an absurdity results" because "every shoplifter, acting alone, necessarily violates both the 'simple' theft statute and the organized retail theft statute by the very same course of conduct." She cites no authority to support her contention that the mere fact that a statute governs conduct prohibited by another Penal Code provision renders the statute "absurd." The Legislature can enact different statutes that apply to the same conduct with one focusing on a particular aspect of the conduct. For example, a person who inflicts serious bodily injury to a child, elderly individual, or disabled individual engages in conduct that violates Penal Code section 22.04, the statute prohibiting injury to a child, elderly individual, or disabled individual. See Tex. Penal Code § 22.04(a)(1). However, such conduct also violates Penal Code section 22.02, the aggravated assault statute. See id. § 22.02(a)(1). The Legislature enacted a separate statute to address the protection of these specific types of vulnerable individuals. We are not persuaded that the mere fact that the organized retail theft statute applies to the conduct of "mere shoplifters" who can be prosecuted under the general theft statute renders the plain meaning of the statute absurd. It may very well be that the Legislature enacted this statute to address the theft of a particular type of property, retail merchandise, believing that the theft of this type of property warranted special attention.
Appellant also suggests that the statute results in an absurdity if it can be violated by the act of "ordinary shoplifting." She maintains that by using the phrase "stolen retail merchandise," the statute "envisions a person whose criminal activity begins after the thief has done his work." She maintains that the statute addresses "post-theft activity, not a theft itself." We must again disagree. "Stolen" is the past participle of "steal." The Penal Code defines "steal" as "to acquire property or service by theft." Id. § 31.01(7). A person commits theft if she "unlawfully appropriates property with intent to deprive the owner of property." Id. § 31.03(a). Thus, the person who unlawfully appropriates retail merchandise also "possesses" stolen retail merchandise. See id. § 1.07(39) ("'Possession' means actual care, custody, control, or management."). Appellant's commission of theft is covered by the statute. That the statute also addresses others who may come into contact with the stolen retail merchandise after the theft (those who receive, possess, conceal, store, barter, sell, or dispose of it) does not inevitably mean that the person who committed the act of theft that rendered the merchandise "stolen" is excluded. Given the Legislature's heightened concern over the theft of retail merchandise—as evidenced by the enactment of a statute solely addressing stolen retail merchandise—it could very well be that the Legislature intended to address every phase concerning the theft of such merchandise, including the moment it becomes stolen, and to punish all those associated with the property, including the one who caused it to be "stolen." We cannot conclude that the application of the statute to the "ordinary shoplifter" causes absurd results that the Legislature could not possibly have intended.
Appellant does not assert that the evidence is insufficient to show that appellant committed theft with her shoplifting conduct.
Applying the principles of statutory construction to section 31.16(b), we conclude that the statutory language permits only one reasonable understanding concerning whether the statute requires proof that the defendant acted with others in committing this offense—it does not—and whether the offense criminalizes the underlying act of theft—it does. Thus, the statute is unambiguous. See Schunior, 506 S.W.3d at 35 (statute is unambiguous when it reasonably permits no more than one understanding); Phillips, 463 S.W.3d at 65 (same). Further, we cannot conclude that a plain reading of the statute's text leads to absurd results that the Legislature could not have possibly intended. Accordingly, because we conclude that the statute is unambiguous and does not lead to absurd results, we need not, indeed may not, resort to extra-textual sources. See Bays v. State, 396 S.W.3d 580, 584-85 (Tex. Crim. App. 2013) ("If the language is unambiguous, our analysis ends because the Legislature must be understood to mean what it has expressed, and it is not for the courts to add to or subtract from such a statute."). Consequently, we give effect to the plain meaning of the statute, which does not require proof that appellant committed this offense working with others and applies to the underlying theft appellant committed. See State v. Vasilas, 187 S.W.3d 486, 489 (Tex. Crim. App. 2006) ("The seminal rule of statutory construction is to presume that the legislature meant what it said."); Seals v. State, 187 S.W.3d 417, 421 (Tex. Crim. App. 2005) ("But these are not the words that the legislature actually used. . . . The only interpretation that is permitted under the seminal rule of statutory construction: We presume that the legislature meant what it said." ).
The evidence in this case demonstrated that appellant unlawfully appropriated retail merchandise from HEB when she concealed various items in the reusable shopping bag tied to her shopping cart and attempted to leave the store without paying for the items. After committing the theft, she possessed stolen retail merchandise as she tried to leave the store with the unlawfully appropriated items. This evidence was sufficient to support the jury's verdict convicting appellant of organized retail theft. We overrule appellant's first two points of error.
Imposition of Attorney's Fees
In her third point of error, appellant contests the trial court's order for the repayment of court-appointed attorney's fees in the judgment of conviction. When the trial judge sentenced appellant in open court, he ordered her to pay "$1,060 fine, plus court cost[s], plus reimbursement to the county of court-appointed attorney fees." The written judgment of conviction reflects the imposition of $1,500.00 attorney fees with the following statement: "THE DEFENDANT ACKNOWLEDGED HIS/HER ABILITY TO PAY COURT APPOINTED ATTORNEY FEES IN PERIODIC PAYMENTS UPON RELEASE FROM INCARCERATION, AND IS HEREBY ORDERED TO PAY COURT APPOINTED ATTORNEY FEES IN THE AMOUNT OF $1,500.00."
A trial court's authority to order a defendant to repay the cost of court-appointed legal counsel is expressly conditioned on the court determining that the defendant has the financial resources and ability to pay. Tex. Code Crim. Proc. art. 26.05(g). The defendant's financial resources and ability to pay are explicit critical elements under article 26.05(g) that must be supported by the record evidence. Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). The record reflects that the trial court found appellant to be indigent prior to trial and appointed a public defender to represent her. Once an accused is found to be indigent, she is presumed to remain so through the proceedings absent proof of a material change in her circumstances. Tex. Code Crim. Proc. art. 26.04(p); Mayer, 309 S.W.3d at 557. Nothing in the record indicates a change in appellant's financial circumstances or demonstrates that appellant has the ability to pay court-appointed attorney's fees. In fact, the record reflects that after trial appellant completed another form reflecting her inability to afford counsel (that reflected no change in appellant's status as a recipient of public assistance), and the trial court appointed counsel to represent her on appeal. Thus, as the State concedes, the trial court erred in ordering the payment of attorney's fees in its oral pronouncement of sentence and in its written judgment of conviction. We sustain appellant's third point of error.
When the evidence does not support the order to pay attorney's fees, the proper remedy is to delete the order. Mayer, 309 S.W.3d at 557. Accordingly, we modify the judgment of conviction to delete the order for repayment of $1,500.00 attorney's fees.
Clerical Error in Written Judgment
In addition, on review of the record, we observe that the written judgment of conviction in this case contains non-reversible clerical error. The judgment of conviction states that the "Statute for Offense" is "31.16(1) Penal Code." This is a typographical error; there is no section 31.16(1). The applicable statutory provision for the offense as alleged in the indictment is section 31.16(b)(1) of the Penal Code, the statutory provision that defines the offense of organized retail theft as indicted in this case. In addition, the applicable statutory provisions include section 31.16(c)(3), the subsection that, at the time of the offense, established the level of the offense as a state jail felony because the total value of the merchandise involved in the activity was $500 or more but less than $1,500. This Court has authority to modify incorrect judgments when the necessary information is available to do so. See Tex. R. App. P. 46.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). Accordingly, for the sake of clarity and accuracy, we modify the judgment to reflect that the "Statute for Offense" is "31.16(b)(1), (c)(3) Penal Code."
As noted previously, the value ladder and offense classification scheme for the offense were amended in 2015. See Act of May 31, 2015, 84th Leg., R.S., ch. 1251, § 13, sec. 31.16, 2015 Tex. Gen. Laws 4209, 4215. Subsection (c)(3) now establishes the level of the offense as Class A misdemeanor if the total value of the merchandise involved in the activity is $750 or more but less than $2,500. See Tex. Penal Code § 31.16(c)(3).
CONCLUSION
Having concluded that the evidence is sufficient to support appellant's conviction for organized retail theft but that the written judgment of conviction contains non-reversible error, we modify the trial court's judgment to reflect that the "Statute for Offense" is "31.16(b)(1), (c)(3) Penal Code" and to delete the order for repayment of $1,500.00 attorney's fees, and affirm the judgment of conviction as modified.
/s/_________
Melissa Goodwin, Justice Before Justices Puryear, Goodwin, and Field Modified and, as Modified, Affirmed Filed: May 5, 2017 Do Not Publish