Summary
deleting all court costs, $300.00 because they were attorneys' fees, balance of $270.00 ostensibly because bill of costs did not contain that amount at all
Summary of this case from Hill v. StateOpinion
NO. 12-11-00335-CR
08-31-2012
CHRISTOPHER MAGNUM PROCTOR, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 114TH
JUDICIAL DISTRICT COURT
SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Christopher Magnum Proctor appeals the trial court's order revoking his deferred adjudication community supervision, following which he was sentenced to imprisonment for fifteen years. In two issues, Appellant contends that the trial court abused its discretion in revoking his community supervision and assessing excessive court costs where such costs were not supported by sufficient evidence. We modify and affirm as modified.
BACKGROUND
Appellant was charged by indictment with aggravated assault with a deadly weapon and pleaded "guilty." The trial court deferred finding Appellant "guilty" and placed him on community supervision for ten years.
On September 6, 2011, the State filed a motion to proceed to final adjudication alleging that Appellant had violated certain terms and conditions of his community supervision. Specifically, the State alleged that Appellant violated the terms and conditions of his community supervision by committing the crime of aggravated assault against Latonya Proctor (Proctor), a member of Appellant's family or household.
On September 28, 2011, the trial court conducted a hearing on the State's motion. At the commencement of the hearing, Appellant pleaded "not true" to the allegation that he committed the aggravated assault as alleged in the State's motion.
The State called Smith County Sheriff's Deputy Jeff Hobson as its first witness. Hobson testified that he encountered Proctor and Appellant at Lindsey Park on August 27, 2011. Hobson further testified that Proctor told him that Appellant had choked her. Hobson stated that Proctor was distraught and crying at the time she gave her statement. Hobson further stated that Proctor had a three to four-and-one-half inch bleeding scratch across her neck. Hobson testified that Proctor's injuries were consistent with those of a choking victim.
The State next called Proctor as a witness. Proctor testified that on August 27, 2011, Appellant said he would kill her and her sons and began choking her with both hands. Proctor further testified that Appellant kicked her and shouted obscenities at her. Proctor stated that Appellant also hit her in her head with his fist. Proctor further stated that it caused her pain when Appellant was choking her and that she had trouble swallowing afterward. Proctor testified that her head was hurting badly and she could feel the swelling. Proctor further testified that she went to the emergency room for her injuries. Proctor stated that the doctor told her she had a concussion.
Appellant testified on his own behalf. He stated that he and Proctor had an argument on the date in question. However, Appellant denied hitting, choking, or threatening to kill Proctor.
At the conclusion of the hearing, the trial court found that Appellant violated the terms and conditions of his community supervision as alleged in the State's motion. Thereafter, the trial court adjudicated Appellant "guilty" of aggravated assault with a deadly weapon, revoked Appellant's community supervision, and sentenced Appellant to imprisonment for fifteen years. This appeal followed.
REVOCATION OF COMMUNITY SUPERVISION
In his first issue, Appellant contends that the trial court erred in revoking his community supervision because the evidence is insufficient to support the revocation. The only question presented in an appeal from an order revoking community supervision is whether the trial court abused its discretion in revoking the defendant's community supervision. See Lloyd v. State, 574 S.W.2d 159, 160 (Tex. Crim. App. [Panel Op.] 1978). The standard of proof in a revocation proceeding is a preponderance of the evidence. Id. In order to satisfy its burden of proof, the state must prove that the greater weight of the credible evidence before the trial court creates a reasonable belief that a condition of community supervision has been violated as alleged in the motion to revoke. See Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993).
Here, Proctor testified that Appellant choked her and threatened to kill her. She further testified that Appellant hit and kicked her. Proctor stated that it hurt when Appellant choked her and she could not swallow. She further stated that her head hurt, that she could feel the swelling, and that she was told by an emergency room doctor that she had a concussion.
Hobson testified that Proctor told him that Appellant had choked her. Hobson further testified that Proctor was distraught and crying at the time she gave her statement. Hobson stated that Proctor had a three to four-and-one-half inch bleeding scratch across her neck and that her injuries were consistent with that of a choking victim.
Based on the foregoing evidence, we conclude that the greater weight of the credible evidence before the trial court created a reasonable belief that Appellant violated a condition of his community supervision as alleged in the State's motion to revoke. Although Appellant denied hitting, choking, or threatening to kill Proctor, there was ample evidence from Proctor and Hobson to support the allegation that he committed the crime of aggravated assault against her. Therefore, we hold that the trial court did not abuse its discretion by revoking Appellant's community supervision and adjudicating him guilty of aggravated assault with a deadly weapon. Appellant's first issue is overruled.
COURT COSTS
In his second issue, Appellant argues that the trial court's assessment of court costs in the amount of $570.00 is excessive and not supported by sufficient evidence. The State agrees. The supplemental record contains a certified copy of an Ableterm Database entry showing court costs and attorney's fees assessed on September 28, 2011. The entry indicates that attorney's fees in the amount of $300.00 were assessed and no fines, court costs, restitution, or other fees were assessed.
Under Article 26.05(g) of the Texas Code of Criminal Procedure, the trial court has authority to order reimbursement of appointed attorney fees if the court determines that a defendant has financial resources that enable him to offset, in part or in whole, the costs of the legal services provided. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2011); see also Mayer v. State, 274 S.W.3d 898, 901 (Tex. App.-Amarillo 2008), aff'd, 309 S.W.3d 552 (Tex. Crim. App. 2010). Here, the record before us does not contain any such determination or finding by the trial court that Appellant had any financial resources or was "able to pay" the appointed attorney fees. Furthermore, our review of the record has not revealed evidence indicating that Appellant possessed the financial resources to offset the costs of the legal services. See Mayer, 274 S.W.3d at 901. Accordingly, we hold that the trial court's judgment assessing $570.00 in court costs is erroneous and that the judgment should be modified. Appellant's second issue is sustained.
CONCLUSION
We have sustained Appellant's second issue. Having done so, we modify the trial court's judgment by deleting the assessment of court costs in the amount of $570.00. Having overruled Appellant's first issue, we affirm the trial court's judgment as modified.
BRIAN HOYLE
Justice
Panel consisted of Worthen, C.J., Griffith, J., and Griffith, J.
(DO NOT PUBLISH)
NO. 12-11-00104-CR
CHRISTOPHER MAGNUM PROCTOR, Appellant
V.
THE STATE OF TEXAS, Appellee
Appeal from the 114th Judicial District Court
of Smith County, Texas. (Tr.Ct.No. 114-0588-09)
THIS CAUSE came to be heard on the appellate record and briefs filed herein; and the same being considered, it is the opinion of this court that the judgment of the trial court below should be modified and as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED by this court that the judgment of the court below be modified by deleting the assessment of court costs in the amount of $570.00, and as modified, the judgment of the trial court is affirmed; and that this decision be certified to the trial court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.