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concluding that the facts in the record were insufficient to allow us to modify the trial court's court costs and abating the appeal to the trial court to determine the proper amounts to be assessed
Summary of this case from Welch v. StateOpinion
No. 09-07-00554-CR
Submitted on August 26, 2009.
Opinion Delivered October 7, 2009. DO NOT PUBLISH
On Appeal from the 252nd District Court, Jefferson County, Texas, Trial Cause No. 99594.
Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
MEMORANDUM OPINION
Justin Ryan LeTulle appeals from the trial court's judgment ordering him to pay court costs, restitution, and administrative financial obligations. Because the court's assessments are not sufficiently supported by the record, we set aside the judgment, abate this appeal, and remand the case. Pursuant to a plea bargain agreement, Justin Ryan LeTulle pled guilty to aggravated assault. The trial court determined the evidence was sufficient to find LeTulle guilty, but deferred its adjudication of LeTulle's guilt. Instead, the court placed LeTulle on community supervision for seven years, assessed a fine of $1,000.00, and ordered LeTulle to pay restitution in the amount of $922.93. In September 2007, the trial court heard the State's first amended motion to revoke LeTulle's unadjudicated community supervision. LeTulle pled "true" to three alleged violations of his conditions of community supervision: 1) failing to pay court-assessed fees in the amount of $92.00, 2) committing the offense of evading arrest, and 3) committing the offense of driving while intoxicated. LeTulle pled "not true" to other alleged violations, including one that he owed $922.93 in restitution. The trial court accepted the pleas of true and reset the case for sentencing at a later date. At the sentencing hearing, the trial court found that LeTulle violated the conditions of his community supervision, found him guilty of aggravated assault, and assessed punishment at seven years of confinement. At sentencing, however, the trial court did not orally pronounce that LeTulle was required to pay any sums of money. While the trial court's written judgment conforms with the court's oral assessments regarding the years of confinement, the written judgment requires LeTulle to pay certain sums that were not assessed at the time of sentencing: 1) $550.00 in court costs, 2) $922.93 in restitution, and 3) $6049.00 in administrative financial obligations. On appeal, LeTulle raises one issue. He contends the trial court erred by entering a judgment and sentence contrary to its pronouncement. He argues that the pronouncement of sentence did not include any fines or monetary obligations. LeTulle concedes that "the ultimate resolution" may be a reformation of the judgment to reflect the monetary assessments appropriate under the Texas Code of Criminal Procedure. However, he specifically asserts that reformation is not proper unless the trial court first conducts a hearing. In an unpublished case, we noted that because certain assessments were not part of the defendant's punishment, they did not have to be orally pronounced at sentencing. See Lee v. State, No. 09-07-00257 CR, 2007 WL 3101905, at *2 (Tex. App.-Beaumont Oct. 24, 2007, no pet.) (not designated for publication) (citing Revia v. State, No. 09-07-00068 CR, 2007 WL 2446099, at *2 (Tex. App.-Beaumont Aug. 29, 2007, no pet.)) (not designated for publication). These assessments include supervision fees, court costs, crime stoppers' fees, or fees associated with presentence investigation reports. Id. While Lee is not binding precedent, it presented facts similar to those of this case. See Tex. R. App. P. 47.7(a). Here, the appellate record contains insufficient evidence to support the trial court's assessments of $6049.00 in administrative financial obligations, $550.00 in court costs, and $922.93 in restitution. The record shows that LeTulle pled "true" to owing $92.00 in court-assessed fees. As to other court-assessed fees, the State suggests that we consider the ones contained in the deferred adjudication order. However, the administrative obligations of $660.00 and court costs of $200.00 set out in the deferred adjudication order fall far short of the $6049.00 and $550.00 assessed by the trial court. Moreover, the deferred adjudication order cannot support the amounts assessed by the trial court because it was set aside when the trial court entered its order adjudicating guilt. See Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004) ("[W]hen guilt is adjudicated, the order adjudicating guilt sets aside the order deferring adjudication, including the previously imposed fine."). When, as is the case here, the facts in the record are insufficient to allow us to modify the trial court's assessments, we conclude that the proper remedy is to remand the case to the trial court to determine the amounts to be assessed. See Lee, 2007 WL 3101905, at *2; cf. Barton v. State, 21 S.W.3d 287, 290 (Tex. Crim. App. 2000). Thus, we sustain LeTulle's sole appellate issue to the extent it complains that the trial court abused its discretion when it entered a judgment for administrative financial obligations in the amount of $6049.00, court costs in the amount of $550.00, and restitution in the amount of $922.93, each of which is without a sufficient factual basis in the record. Accordingly, we abate the appeal, set aside the assessed amounts of $6049.00, $550.00, and $922.93, and remand the case for a hearing to determine the proper assessments to be contained in the judgment. A supplemental record containing the trial court's determination of the proper assessments against LeTulle shall be filed with this Court by November 13, 2009. The brief of the appellant shall be due thirty days after the appeal is reinstated, the State's brief shall be due thirty days after the appellant's brief is filed. We remove the case from the submitted docket. The appeal will be re-submitted after the briefs on the merits have been filed. ABATED AND REMANDED.
The trial court's oral pronouncements related to sentencing were as follows:
In your case, I find the evidence to be sufficient to find Counts 3, 4 and 5 to be true. They are therefore true. I hereby revoke your unadjudicated probation. I now find you guilty of the offense of aggravated assault causing serious bodily injury. You're therefore guilty of that offense. I assess your punishment at 7 years[']confinement in the Institutional Division.
We note that LeTulle does not argue that restitution is punishment or request we modify the trial court's judgment to delete its assessment of restitution. See Brown v. State, No. 2-08-063-CR, 2009 WL 1905231, at *2 (Tex. App.-Fort Worth July 2, 2009, no pet.) (not designated for publication).
In addition to a fine of $1000.00 and restitution of $922.93, the deferred adjudication order contained the following costs and fees: a PSI fee of $350.00, court costs of $200.00, supervision fees of $60.00, and crime stoppers' fees of $50.00, for a total of $660.00.