Texas Court of Appeals, 5th District (Dallas) Cases

Jason Jacob Osifo v. the State of Texas

• 2022-12-30

Date Filed2022-12-30

Docket05-20-00750-CR

Cited0 times

StatusPublished

Full Opinion (html_with_citations)

Affirmed as Modified and Opinion Filed December 30, 2022

In The
Court of Appeals
Fifth District of Texas at Dallas
05-20-00750-CR
05-20-00751-CR
05-20-00752-CR
05-20-00753-CR
05-20-00754-CR

JASON JACOB OSIFO, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 296th Judicial District Court
Collin County, Texas
Trial Court Cause Nos. 296-81128-2020, 296-81129-2020, 296-81394-2016,
296-82063-2017, 296-82064-2015

MEMORANDUM OPINION
Before Justices Partida-Kipness, Pedersen, III, and Nowell
Opinion by Justice Pedersen, III
In this appeal from five judgments entered after a non-jury proceeding,

appellant brings three issues concerning (1) whether a 2018 plea to aggravated

robbery was voluntarily and knowingly made; (2) duplicate costs; and (3) “time

payment” fees. The State brings a cross-point and urges that we modify the

judgments in two of appellant’s cases to accurately reflect sentences orally
pronounced from the bench. We sustain the State’s cross-point and affirm the two

judgments as modified. We affirm the remaining three judgments.

Procedural Background

In 2020, the trial court disposed of five cases against appellant in one

proceeding.1 We review the judgments of these five cases.

Based on appellant’s pleas of guilty at the 2020 hearing, the trial court found

appellant guilty in two cases. The trial court revoked community supervision in two

cases in which appellant had been placed on probation. And the trial court

adjudicated appellant’s guilt in another case in which appellant had been placed on

deferred adjudication community supervision.

Judgments in two cases resulted in appellant’s convictions for unlawful

possession of a firearm by a felon, trial cause number 296-81129-2020, and for

possession of a controlled substance, trial cause number 296-81128-2020. Appellant

pleaded guilty to the two offenses. The trial court sentenced appellant to confinement

in both cases. Appellant appeals here from these two judgments.

The trial judge was familiar with appellant’s remaining three cases. In one of

those cases—aggravated robbery, trial cause number 296-82063-2017—the trial

court had previously deferred adjudication of guilt and placed appellant on

1
Appellate cause number 05-20-00750-CR corresponds with trial cause number 296-81128-2020; 05-
20-00751-CR with 296-81129-2020; 05-20-00752-CR with 296-81394-2016; 05-20-00753-CR with 296-
82063-2017; and 05-20-00754-CR with 296-82964-2015.
–2–
community supervision. In the other two cases—burglary of a habitation, trial cause

number 296-81394-2016, and misdemeanor assault, trial cause number 296-81394-

2016—the trial court had previously sentenced appellant to confinement, ordered

appellant’s “shock probation,” and then sentenced appellant to probation and

community supervision. At the July 2020 hearing, appellant pleaded true to the

state’s allegations in its motion to adjudicate guilt and its motions to revoke

probation. The trial court sentenced appellant to confinement in each of these three

cases. Appellant also appeals here from these three judgments.

Appellant’s First Issue: 2018 Guilty Plea

Appellant frames his first issue as follows:

The trial court failed to meet its obligations under Tex. Code Crim.
Proc. Art. 1.15 to ensure that Appellant’s plea to the underlying charge
was knowingly and voluntarily given when presented with evidence
showing Appellant was not, in fact, guilty of the aggravated robbery to
which he pleaded. Because the plea was not knowingly and voluntarily
given, the Order of Deferred Adjudication is void, and no later
adjudication can be taken from it.

Appellant’s first issue is relevant to his 2020 adjudication of guilt and sentence for

aggravated robbery from which he appeals here. As noted, the trial court had

previously deferred adjudication and placed appellant on community supervision for

this offense, as recited in the 2018 order of deferred adjudication. The 2018 order

included a deadly weapon finding for use of a firearm. Appellant’s first issue

concerns his guilty plea to aggravated robbery in the 2018 proceeding.

–3–
The State casts appellant’s first issue as: “Appellant claims that his underlying

guilty plea in his aggravated robbery case was not supported by sufficient evidence

and was not entered voluntarily and knowingly.” The State argues we do not have

jurisdiction to address appellant’s “collateral attacks.”

Background

At the 2018 hearing, the aggravated-robbery victim, who was attempting to

deliver a pizza when robbed at gunpoint, testified appellant did not hold a firearm

and did not threaten him during the robbery. Appellant insisted he had no knowledge

that a participant in the robbery, Ty-Ty, intended to rob the victim or that Ty-Ty

would use a firearm to facilitate the robbery. Appellant’s co-defendant testified Ty-

Ty said the pizza would be “on her.” But there was testimony that appellant took the

pizza box from the victim and warned Ty-Ty of an approaching vehicle. The trial

court deferred a finding of guilt and placed appellant on community supervision for

ten years. The trial court entered a deadly weapon finding in its judgment. The trial

court certified that appellant had a right to appeal. Appellant failed to appeal from

the 2018 order of deferred adjudication.

The 2020 proceeding included the trial court’s adjudication of whether

appellant had violated terms and conditions related to his 2018 order of deferred

adjudication for aggravated robbery. The trial court asked appellant if the State’s

allegations were true or not true. Appellant asked whether the trial court remembered

appellant’s stating at the 2018 hearing that appellant did not possess the firearm

–4–
during the aggravated robbery of the pizza delivery person. The trial court

responded:

[W]e are not here to talk about or argue at all about that case because
that’s already been done. The State has now said that you violated the
terms and conditions of your probation while you were on probation for
aggravated robbery.

Appellant entered an open plea of “true.” The trial court found the State’s allegations

to be true, adjudicated appellant’s guilt, and sentenced appellant to thirteen years in

prison. The judgment recited that appellant had the right to appeal punishment only.

Discussion

Appellant contends that “no evidence” supported the deadly weapon finding

in the 2018 aggravated robbery order. Appellant cites article 1.15 of the Texas Code

of Criminal Procedure, which provides, in part: “[I]n no event shall a person charged

be convicted upon his plea without sufficient evidence to support the same.” TEX.

CODE CRIM. PROC. ANN. art. 1.15. Appellant argues that in any guilty plea, the

“sufficient evidence” requirement of article 1.15 is absolute.

However, appellant failed to appeal from the 2018 order. Appellant cannot

dispute the sufficiency of the 2018 order on appeal from revocation, as he attempts

here. “A defendant must raise issues relating to the original plea proceeding,

including evidentiary sufficiency, only in a timely appeal taken when deferred-

adjudication community supervision is first imposed.” Perez v. State,

424 S.W.3d 81, 86

 (Tex. Crim. App. 2014). “Sufficiency challenges, like those raised under


                                         –5–
Article 1.15, cannot be raised on appeal from revocation.” See Fox v. State, No. 02-

19-00240-CR,

2020 WL 579111

, at *2 (Tex. App.—Fort Worth Feb. 6, 2020, pet.

ref’d) (mem. op., not designated for publication) (noting, “Thus, to the extent that

Fox disputes the sufficiency of her judicial confession under Article 1.15, her

challenge cannot be considered on appeal from revocation.”). We reject appellant’s

no-evidence argument.

      Appellant nonetheless argues that the 2018 order in the underlying plea

hearing is void and thus is susceptible to attack here. Appellant’s argument again is

based on insufficiency of the evidence to support the 2018 order. Although the

general rule is that the sufficiency of the evidence to sustain a conviction cannot be

collaterally attacked, one exception is where there is a void judgment. See Arnold v.

State, No. 05-11-00917-CR,

2012 WL 2768620

, at *2 (Tex. App.—Dallas July 10,

2012, no pet.) (mem. op., not designated for publication) (noting, “In criminal cases,

a judgment is void if there is no evidence to support the conviction.”). For a judgment

to be void due to no evidence, the record must show a due process violation arising

from a complete absence of evidence to support the conviction. See Wolfe v. State,

560 S.W.2d 686, 688

 (Tex. Crim. App. [Panel Op.] 1978); Crume v. State,

342 S.W.3d 241, 244

 (Tex. App. – Beaumont 2011, no pet.). But the record reflects that

appellant entered a plea of guilty. Although appellant’s plea of guilty alone may not

satisfy the requirements of article 1.15 on direct appeal, a guilty plea constitutes



                                         –6–
some evidence for purposes of due process. See Arnold,

2012 WL 2768620

, at *2.

We reject appellant’s void-judgment argument.

        Appellant also argues that his guilty plea is void because it was not made

voluntarily or intelligently. Appellant argues he demonstrated a lack of

understanding of the law in relation to the facts when pleading guilty because there

was “no evidence” to support the deadly weapon allegation. From this, appellant

argues “the Order of Deferred Adjudication was void because the trial court erred

by accepting Appellant’s inadequate admission of guilt rather than accepting it only

as to the lesser-included offense of robbery. As a result, the Judgment and sentence

imposed in 2020 are also void.” Initially, we reject this argument, which essentially

is a variant of appellant’s no-evidence argument that we found unconvincing above.

Moreover, a claimed “involuntary plea” does not give rise to a void judgment. See

Jordan v. State,

54 S.W.3d 783, 785

 (Tex. Crim. App. 2001). We reject appellant’s

argument that the 2018 and 2020 orders are void. 2

        We overrule appellant’s first issue.




    2
      The State characterizes appellant’s argument as an impermissible “hybrid” attack on the 2018 order
that conflates an art. 1.15 sufficiency challenge and a void judgment challenge. The State complains that
appellant argues that although a guilty plea constitutes some evidence for purposes of due process,
appellant’s plea was invalid (and therefore void) because it was not entered into knowingly, voluntarily,
and with an understanding of the law in relation to the facts. The Second Court of Appeals has rejected an
argument that merged a void judgment inquiry with an article 1.15 inquiry. See Fox v. State, No. 02-19-
00240-CV,

2020 WL 579111

, at *2 (Tex. App.—Fort Worth Feb. 6, 2020, pet. ref’d) (mem. op., not
designated for publication) (“Fox would join these two principles into a single argument, but . . . the law
does not support such a hybridization. Rather, each principle must be considered separately . . . .”). We
agree with the reasoning contained in Fox and separately address the two issues.

–7–
Appellant’s Second Issue: Duplicate Costs

In his second issue, appellant complains of improper duplicate costs in four

of the five cases. Appellant cites the law concerning duplicate costs. Appellant fails

to address specific costs assessed in three cases in 2018 and additional costs assessed

in those same three cases and in two additional cases in 2020. Appellant fails to

specifically identify a single duplicate cost.

The law of duplicate costs

The Texas Code of Criminal Procedure prohibits duplicative fees in certain

criminal actions. See TEX. CODE CRIM. PROC. ANN. art. 102.073(a) (“In a single

criminal action in which a defendant is convicted of two or more offenses or of

multiple counts of the same offense, the court may assess each court cost or fee only

once against the defendant.”). Article 102.073(a) does not limit its reach to

convictions arising out of the same criminal episode, but rather it applies to

convictions of “two or more offenses or of multiple counts of the same offense.”

Hurlburt v. State,

506 S.W.3d 199

, 202–03 (Tex. App.—Waco 2016, no pet.). The

phrase “in a single criminal action” in Article 102.073(a) is interpreted as including

“allegations and evidence of more than one offense . . . [which] are presented in a

single trial or plea proceeding.”

Id. at 203

; see Guerin v. State, No. 02-18-00509-

CR,

2019 WL 4010361

, at *1 (Tex. App.—Fort Worth Aug. 26, 2019, no pet.) (mem.

op., not designated for publication) (“This court and others have interpreted ‘a single



                                          –8–
criminal action’ to include a trial on multiple offenses regardless of whether they

were committed in a single criminal episode.”).

                                     Discussion

      To the extent that appellant challenges the court costs imposed in his three

2018 proceedings, identified above, he is barred from doing so. See Perez,

424 S.W.3d at 86

 (failure to file timely appeal of assessment of costs in deferred

adjudication order forfeits “any appellant complaint” regarding those costs); Pugh

v. State, No. 03-18-00027-CR,

2018 WL 4039572

, at *3 (Tex. App.—Austin Aug.

24, 2018, no pet.) (mem. op); Weatherspoon v. State, No. 03-15-00236-CR,

2015 WL 286384

, at *2 (Tex. App.—Austin Jan. 22, 2016, no pet.) (mem. op., not

designated for publication). Thus, our review of costs in these cases is limited to

costs imposed in appellant’s 2020 proceeding and not those imposed earlier at the

time of deferred adjudication or imposition of parole. See Perez,

424 S.W.3d at 86

;

Pugh,

2018 WL 4039572

 at *3; Weatherspoon,

2015 WL 286384

 at *2.

      Appellant may not now challenge costs imposed in 2018 related to court

proceedings for aggravated robbery, burglary of a habitation, and misdemeanor

assault. We overrule appellant’s second issue to the extent he claims the above costs,

assessed in 2018, are duplicative.

               Costs related to the 2020 proceeding and convictions

      We have jurisdiction to address costs imposed in all five cases in the 2020

proceeding. See Perez,

424 S.W.3d at 86

 (noting court of appeals did not have

                                         –9–
jurisdiction to consider costs imposed in conjunction with earlier deferred-

adjudication order but did have jurisdiction to consider costs in the current appeal

from an adjudication of guilt).

       The State notes that although appellant’s brief sets out applicable law

regarding duplicative court costs, appellant fails to specifically apply the law to

appellant’s five cases, three of which have “complicated procedural histories.”

Indeed, the record contains ten bills of costs entered over the course of several years.

The ten bills of costs have 201 separate entries for various costs. Of these 201 costs,

Appellant fails to specifically identify a single duplicative cost in the ten bills of

costs. Appellant simply recites the law, generally notes that some unidentified

costs—presumably contained somewhere in the 201 of them here—are duplicative,

concludes that “[a]ppellant’s judgments should be reformed to reflect only

permissible costs of court . . . ,” and leaves it at that.

       The State argues appellant insufficiently presents his assertions of duplicative

costs by failing to identify or complain of a single cost or to explain why such a cost

would be duplicative and cites to Coronel v. State,

416 S.W.3d 550, 556

 (Tex.

App.—Dallas 2013, pet. ref’d) (“[A]ppellant does not challenge the propriety or

legality of the specific costs assessed; therefore, we do not address these issues.”);

Houston v. State,

410 S.W.3d 475, 479

 (Tex. App.—Fort Worth 2013, no pet.) (“We

decline to undertake a review of the correctness of each cost charged in the bill of

costs when Houston has not done so.”); Edwards v. State, Nos. 09-13–00360-CR &

                                           –10–
09-13-00361-CR,

2014 WL 1400747

, at *4 (Tex. App.—Beaumont Apr. 9, 2014,

no pet.) (mem. op., not designated for publication) (“We decline to undertake any

further review of the correctness of each cost charged in the bill of costs when

[appellant] has not specified which item he challenges and the basis for his

challenge.”).

      To assert an issue on appeal, an appellant's brief must contain a “clear and

concise argument for the contentions made, with appropriate citations to authorities

and to the record.” TEX. R. APP. P. 38.1. An appellant waives an issue on appeal if

he does not adequately brief an issue by failing to provide supporting arguments,

substantive analysis, and appropriate citations to authorities and to the record. See

Noble v. State, No. 05-21-00326-CR,

2022 WL 17351908

, at *5 (Tex. App.—Dallas

Dec. 1, 2022, no pet.) (mem. op., not designated for publication) (citing Lucio v.

State,

351 S.W.3d 878, 896-97

 (Tex. Crim. App. 2011); Chaves v. State,

630 S.W.3d 541

, 555 (Tex. App.—Houston [1st Dist.] 2021, no pet.)). An appellate court has no

obligation to construct and compose issues, facts, and arguments with appropriate

citations to authorities and the record for the appellant. See Wolfe v. State,

509 S.W.3d 325, 343

 (Tex. Crim. App. 2017). A brief that fails to apply the law to the

facts does not comport with the Rule 38.1 and presents nothing for our review. See

Swearingen v. State,

101 S.W.3d 89, 100

 (Tex. Crim. App. 2003). Appellant failed

to provide this Court with substantive argument, analysis, or apply the law to the



                                       –11–
facts in this issue. Therefore, we find he waived this issue concerning costs related

to the 2020 proceeding.

        We overrule appellant’s second issue.

                      Appellant’s Third Issue: “Time Payment Fees”

        In his third issue, appellant argues the trial court erred in prematurely

assessing a time-payment fee previously authorized by section 133.103 of the Texas

Local Government Code.3

        Section 133.103 provided that “[a] person convicted of an offense shall pay,

in addition to all other costs, a fee of $25 if the person . . . has been convicted of a

felony or misdemeanor; and . . . pays any part of a fine, court costs, or restitution on

or after the 31st day after the date on which a judgment is entered assessing the fine,

court costs, or restitution.” Machina v. State, No. 10-18-00156-CR,

2020 WL 1183157

, at *9 (Tex. App.—Waco Mar. 11, 2020, pet. ref’d) (mem. op., not

designated for publication) (quoting language of former TEX. LOC. GOV’T CODE

ANN. § 133.103).




    3
        The Texas Legislature passed legislation, effective January 1, 2020, that transfers Texas Local
Government Code section 133.103 to Texas Code of Criminal Procedure article 102.030 and revises the
statute to provide that all of the fees collected under the section are “to be used for the purpose of improving
the collection of outstanding court costs, fines, reimbursement fees, or restitution or improving the
efficiency of the administration of justice in the county or municipality.” See Act of May 23, 2019, 86th
Leg., R.S., S.B. 346, § 2.54, 2019 Tex. Sess. Law Serv. Ch. 1352. The changes apply only to a cost, fee, or
fine assessed on a conviction for an offense committed on or after the effective date of the Act. Id. § 5.01.
Because the offenses in which the complained-of fees were assessed in these cases were committed before
January 1, 2020, the former law applies. Id.; Ovalle v. State,

592 S.W.3d 616

, 617 n.1 (Tex. App.—Dallas
2020), vacated on other grounds, Ovalle v. State, No. PD-0127-20,

2021 WL 1938672

, at *1 (Tex. Crim.
App. May 12, 2021) (per curiam).
                                                    –12–
      Appellant argues that the fee was prematurely assessed in three of his cases:

the aggravated robbery, the burglary of a habitation, and the misdemeanor assault.

Appellant correctly urges the pendency of an appeal “stops the clock” for purposes

of the time payment fee. Dulin v. State,

620 S.W.3d 129

, 133 (Tex. Crim. App.

2021).

      But the state correctly argues the charges identified by appellant were assessed

in prior proceedings, in 2018, when the trial court placed appellant on deferred

adjudication in the aggravated robbery case and on community supervision in the

burglary and assault cases. As noted, appellant failed to timely appeal from the 2018

orders in these three cases. Appellant’s failure to appeal was a “procedural default,”

and appellant has “forfeited any appellate complaint as to that sum[.]” Perez,

424 S.W.3d at 86

. Hence, appellant cannot complain here of “time-payment fees”

imposed in 2018 and not timely appealed.

We overrule appellant’s third issue.

The State’s Cross-Point

In its single cross-point, the State asks us to modify the judgments in two of

appellant’s cases to accurately reflect the sentences pronounced by the trial court at

the plea hearing. The State urges that we modify the judgment in the unlawful

possession of a firearm case to reflect a ten-year sentence, rather than a five-year

sentence and the judgment in the aggravated robbery case to reflect a thirteen-year

sentence, rather than a ten-year sentence.

–13–
In the unlawful possession of a firearm case, the judgment shows a sentence

of five years in TDCJ. The docket sheet corresponds to the judgment. However, the

reporter’s record reflects that the trial court orally assessed appellant’s punishment

at ten years in TDJC. In the aggravated robbery case, the judgment reflects a

sentence of ten years in TDCJ. The docket sheet corresponds with the judgment. The

reporter’s record, however, shows the trial court orally assessed appellant’s

punishment at thirteen years in TDCJ.

The Texas Court of Criminal Appeals has stated: “It is well established that a

trial court’s oral pronouncement of a sentence in open court is the sentence imposed.

The written judgment or a docket entry is ‘merely the written declaration and

embodiment of that oral pronouncement.’” McClinton v. State,

121 S.W.3d 768, 770


(Tex. Crim. App. 2003) (emphasis in original). The Court had previously explained:

       The rationale for that rule is that the imposition of sentence is the crucial
       moment when all of the parties are physically present at the sentencing
       hearing and able to hear and respond to the imposition of sentence.
       Once he leaves the courtroom, the defendant begins serving the
       sentence imposed.

Ex parte Madding,

70 S.W.3d 131, 135

 (Tex. Crim. App. 2002). “Thus, a trial court

does not have the statutory authority to impose one sentence orally to the defendant

and then, at some later date, enter a different, greater or lesser, sentence in his written

judgment outside the defendant’s or State’s presence.” McClinton,

121 S.W.3d at 770

.



                                          –14–
      At sentencing, appellant’s counsel did not object to the ten- or thirteen-year

sentence. Moreover, appellant’s counsel represents in briefing here that “[a]ppellant

was sentenced to 10 years confinement” in conjunction with unlawful possession of

a firearm by a felon and “[a]ppellant was sentenced to 13 years confinement” in

conjunction with aggravated robbery.

      This Court has power to modify an incorrect judgment to make the record

speak the truth when we have the necessary information before us to do so. See TEX.

R. APP. P. 43.2(b); Bigley v. State,

865 S.W.2d 26, 27-28

 (Tex. Crim. App. 1993);

Asberry v. State,

813 S.W.2d 526, 529-30

(Tex. App.—Dallas 1991, pet. ref’d).

Accordingly, we modify the trial court’s judgments as the State requests:

In trial cause 296-82063-2017, the judgment is modified as follows:

Based on the Court’s opinion of this date, the judgment of the trial court
is MODIFIED as follows:
in the Judgment Adjudicating Guilt, the phrase “Ten (10) Years,
Institutional Division, TDCJ” is deleted from the section entitled
“Punishment and Place of Confinement” and “Thirteen (13) Years,
Institutional Division, TDCJ” is substituted in that section.
As REFORMED, the judgment is AFFIRMED

In trial cause 296-81129-2020, the judgment is modified as follows:

Based on the Court’s opinion of this date, the judgment of the trial court
is MODIFIED as follows:
in the Judgment of Conviction by Court-Waiver of Jury Trial, the
phrase “Five (5) Years TDCJ, Correctional Institutions Division” is
deleted from the section entitled “Punishment and Place of Confinement”
and “Ten (10) Years, TDCJ, Correctional Institutions Division” is
substituted in that section.
As REFORMED, the judgment is AFFIRMED.

–15–
We sustain the State’s cross-point and modify the judgments in trial cause

numbers 296-82063-2017 and 296-81129-2020.

Conclusion

We overrule all three of appellant’s issues. We sustain the State’s single

cross–point, modify the judgments in trial cause numbers 296-82063-2017 and 296-

81129-2020, and affirm as modified. We affirm the remaining three judgments.

200750f.u05
200751f.u05 /Bill Pedersen, III/
200752f.u05 BILL PEDERSEN, III
200753f.u05 JUSTICE
200754f.u05
Do Not Publish
TEX. R. APP. P. 47.2(b)

–16–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

JASON JACOB OSIFO, Appellant On Appeal from the 296th Judicial
District Court, Collin County, Texas
No. 05-20-00750-CR V. Trial Court Cause No. 296-81128-
2020.
THE STATE OF TEXAS, Appellee Opinion delivered by Justice
Pedersen, III. Justices Partida-
Kipness and Nowell participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.