Opinion
No. 06-19-00233-CR
04-17-2020
DANTE DEVAUGHN ROBERSON, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 241st District Court Smith County, Texas
Trial Court No. 241-1761-18 Before Morriss, C.J., Burgess and Stevens, JJ. ORDER
Dante DeVaughn Roberson pled guilty to intoxication manslaughter, and pursuant to a plea agreement, a Smith County District Court sentenced him to serve fifteen years' imprisonment and ordered the payment of restitution. This appeal followed.
Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001. We are unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
The trial court gave Roberson permission to appeal. See TEX. R. APP. P. 25.2(a)(2)(B).
Roberson's appellate attorney filed a brief setting out the procedural history of the case, summarizing the evidence elicited during the course of the trial court proceedings, and concluding that the appellate record presents no arguable grounds to be raised on appeal. Counsel has filed a brief pursuant to Anders v. California, and he has provided a professional evaluation of the record demonstrating why there are no plausible appellate issues to be advanced. See Anders v. California, 386 U.S. 738, 743-44 (1967); In re Schulman, 252 S.W.3d 403, 406 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State, 813 S.W.2d 503, 509-10 (Tex. Crim. App. 1991); High v. State, 573 S.W.2d 807, 812-13 (Tex. Crim. App. [Panel Op.] 1978). Counsel also filed a motion with this Court seeking to withdraw as counsel in this appeal.
However, the record in this case shows that although the trial court ordered Roberson to pay restitution, it did not pronounce an amount of restitution or to whom restitution should be paid. Instead, in its pronouncement of Roberson's sentence, the trial court ordered that he was to pay restitution "as determined to be due by the post or presentence investigation." In its written judgment entered the same day, the trial court stated that the restitution amount was "TBD" and that the restitution payee was to be determined by the post or presentence investigation report.
"[D]ue process requires that the defendant be given fair notice of all of the terms of his sentence, so that he may object and offer a defense to any terms he believes are inappropriate." Burt v. State, 445 S.W.3d 752, 757 (Tex. Crim. App. 2014) (citing Ex parte Madding, 70 S.W.3d 131, 136 (Tex. Crim. App. 2002)). In this case, the trial court orally pronounced the "fact" of restitution at sentencing, but it did not state the amount of restitution or to whom it was to be paid. Consequently, Roberson was not "given an opportunity to challenge the sufficiency of the evidence or the specific amount of restitution due" or to challenge the propriety of the payee of the restitution. Id. at 760. In such a case, "it is appropriate to remand a case for a restitution hearing when it is clear during the sentencing hearing that restitution will be ordered, but the amount or recipients of restitution are not orally pronounced." Id. at 761. In a case, as here, in which "the trial court's erroneous action or failure or refusal to act prevents the proper presentation of a case to the court of appeals" and the error can be corrected by the trial court, we "must direct the trial court to correct the error[] . . . then proceed as if the erroneous action or failure to act had not occurred." TEX. R. APP. P. 44.4; Keys v. State, 340 S.W.3d 526, 529 (Tex. App.—Texarkana 2011, pet. ref'd).
Consequently, we abate this cause to the trial court for a restitution hearing at which the trial court shall (1) determine the amount of restitution and to whom it should be paid and (2) orally pronounce the amount of restitution and to whom it should be paid in Roberson's presence. The restitution hearing is to be conducted within thirty days of the date of this order. The reporter's record of the hearing shall be filed in the form of a supplemental reporter's record within twenty days of the date of the hearing, together with a supplemental clerk's record containing the trial court's judgment.
Because the trial court, by pronouncing in Roberson's presence the amount of the restitution and to whom it should be paid, is completing the sentencing of Roberson, the judgment issued following the restitution hearing shall not be a judgment nunc pro tunc. Instead, it will be the only valid judgment in this case. Consequently, the judgment shall properly reflect the date sentence is imposed as the date the trial court orally pronounces the amount of restitution and to whom it should be paid, thereby completing the sentencing of Roberson. Because Roberson has been incarcerated since October 9, 2019, the trial court is directed to credit Roberson with all time served from and including October 9, 2019, through the date the sentencing is completed and imposed.
All appellate timetables are stayed and will resume on our receipt of the supplemental records. On reinstatement, this Court will consider the merits of Roberson's brief.
IT IS SO ORDERED.
BY THE COURT Date: April 17, 2020