Gilbert Wayne Valdez v. the State of Texas

                                       In The

                                Court of Appeals

                    Ninth District of Texas at Beaumont

                               __________________

                               NO. 09-22-00148-CR
                               __________________

                    GILBERT WAYNE VALDEZ, Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee

 ________________________________________________________________

               On Appeal from the 252nd District Court
                       Jefferson County, Texas
                      Trial Cause No. 19-32617
__________________________________________________________________

                          MEMORANDUM OPINION

      In 2019, a grand jury indicted Appellant Gilbert Wayne Valdez for evading

arrest/detention with the use of a vehicle, a third-degree felony. See 

. In a plea agreement, Valdez pleaded guilty to the offense and waived

his right to a jury trial. The trial court found Valdez guilty, deferred adjudication,

placed Valdez on community supervision for four years, and imposed a $500 fine.

      On November 12, 2020, the State filed a Motion to Revoke Unadjudicated

Probation, alleging Valdez committed four violations of the terms of his community

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supervision. At a hearing on March 23, 2022, Valdez pleaded “true” to two of the

four allegations in the motion to revoke. At a hearing on May 4, 2022, the trial court

heard evidence on the other two alleged violations, found Valdez violated the terms

of his community supervision, found him guilty of the third-degree offense of

evading arrest/detention with the use of a vehicle, and imposed punishment at five

years’ confinement in the Institutional Division of the Texas Department of

Corrections. Raising eight issues, Valdez appeals.1

                                Applicable Sentence

      In issues one, two and three, Valdez argues that the judgment should be

reversed and remanded for another sentencing hearing. According to Valdez, he

could at most be only convicted of a state jail felony because the indictment failed

to allege a prior evading detention conviction, and the trial court erred when it

enhanced Valdez’s sentence to a third-degree felony and when it failed to make a

finding of a prior evading detention conviction. The State argues that although

previous versions of section 38.04 required the element that the defendant had been

previously convicted of an offense under that section, the law applicable to Valdez

does not require that as an element of the offense.



      1
        We note that in Valdez’s brief under the “Issues Presented” section, he lists
eight appellate issues. However, in the “Argument & Authorities” section of his brief
he presents the same issues but numbers them differently. We refer to the issues as
numbered in the “Issues Presented” section of his appellate brief.
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      We previously addressed section 38.04 in State v. Sneed, No. 09-14-00232-

CR, 

, at **7-10 (Tex. App.—Beaumont Sept. 24,

2014, pet. ref’d) (mem. op., not designated for publication). Therein, we noted that

two versions of section 38.04(b) were enacted in 2011. 

. Under the first

version, evading arrest or detention is:

      (1) A state jail felony if:

          (A) the actor has been previously convicted under this section; or

          (B) the actor uses a vehicle or watercraft while the actor is in flight
          and the actor has not been previously convicted under this section;

      (2) A felony of the third degree if:

          (A) the actor uses a vehicle or watercraft while the actor is in flight
          and the actor has been previously convicted under this section; or

          (B) another suffers serious bodily injury as a direct result of an
          attempt by the officer or investigator from whom the actor is fleeing
          to apprehend the actor while the actor is in flight[.]

(b). Under the second version, evading arrest or

detention is:

      (2) a felony of the third degree if:

          (A) the actor uses a vehicle while the actor is in flight;

          (B) another suffers serious bodily injury as a direct result of an
          attempt by the officer from whom the actor is fleeing to apprehend
          the actor while the actor is in flight; or

          (C) the actor uses a tire deflation device against the officer while the
          actor is in flight[.]
                                             3
See 

      In Sneed, we explained that the Fort Worth Court of Appeals had addressed

the differences and concluded that even if the amendments were irreconcilable,

Senate Bill 1416—codified in the second version above—was the latest of the bills

to be enacted and would prevail over earlier bills. See Sneed, 

, at *9 (citing Adetomiwa v. State, 

 (Tex. App.—Fort

Worth 2014, no pet.)). We follow our previous ruling and conclude that “[t]he

offense of evading arrest or detention with a motor vehicle is a third-degree felony

if the actor uses a motor vehicle while in flight, regardless of whether the actor has

a previous conviction for evading arrest or detention.” See id. at **9-10; see also

Watkins v. State, No. 09-19-00123-CR, 

, at **22-23

(Tex. App.—Beaumont Jan. 27, 2021, pet. ref’d) (mem. op., not designated for

publication) (following Sneed and adopting Adetomiwa); Fulton v. State, 

, 78 (Tex. App.—San Antonio 2019, no pet.) (adopting Adetomiwa);

Warfield v. State, No. 03-15-00468-CR, 

, at **31-33

(Tex. App.—Austin June 14, 2017, pet. ref’d) (mem. op., not designated for

publication) (adopting Adetomiwa and cataloging Texas courts of appeals that have

reached the same conclusion).

      Here, the indictment alleged that Valdez intentionally fled, using a vehicle,

from Michal Davis, a person Valdez knew was a peace officer who was attempting
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to lawfully arrest or detain Valdez. Valdez was charged with and convicted of the

third-degree felony offense of evading arrest, and his five-year sentence is within

the punishment range for a third-degree felony. See 

(punishment range for a third-degree felony is imprisonment in the Texas

Department of Criminal Justice for any term of not more than ten years or less than

two years and a possible fine not to exceed $10,000). Issues one, two, and three are

overruled.

                                 Assessment of Fine

      In issues four and seven, Valdez argues that he should not have been assessed

a $500 fine because the trial court rescinded the original deferred adjudication order

and failed to order a new fine, it was reversible error to assess a fine because Valdez

was indigent, and the trial court failed to orally pronounce the assessment of the fine

at the revocation hearing. The first page of the Judgment Adjudicating Guilt does

not reflect a fine was assessed but the second page of the judgment includes the

following language:

             After hearing and considering the evidence presented by both
      sides, the Court FINDS THE FOLLOWING: (1) The Court previously
      found Defendant qualified for deferred adjudication community
      supervision; (2) The Court deferred further proceedings, made no
      finding of guilt, and rendered no judgment; (3) The Court issued an
      order placing Defendant on deferred adjudication community
      supervision for a period of FOUR (4) YEARS[]; (4) The Court assessed
      a fine of $500.00; (5) While on deferred adjudication community
      supervision, Defendant violated the conditions of community

                                          5
      supervision, as set out in the State’s ORIGINAL Motion to Adjudicate
      Guilt as follows:
      4&11
             Accordingly, the Court GRANTS the State’s Motion to
      Adjudicate. FINDING that the Defendant committed the offense
      indicated above, the Court ADJUDGES Defendant GUILTY of the
      offense. The Court FINDS that the Presentence Investigation, if so
      ordered, was done according to the applicable provisions of Subchapter
      F, Chapter 42A, Tex. Code Crim. Proc.
             The Court ORDERS Defendant punished as indicated above.
      After having conducted an inquiry into Defendant’s ability to pay, the
      Court ORDERS Defendant to pay the fines, court costs, reimbursement
      fees, and restitution as indicated above.

The Revocation Restitution/Reparation Balance Sheet in the appellate record shows

the fine as “TBD[.]”

      In issue four, Valdez argues that the Judgment Adjudicating Guilt imposes an

improper $500 fine because the trial court did not orally pronounce the fine at the

time of revocation, and the State concedes that no fine was orally pronounced at the

time of revocation. No fine is stated on the first page of the Judgment Adjudicating

Guilt, and no specific fines are selected under the section titled “Fines Imposed

Include” on page two of the judgment. We agree that the trial court did not orally

pronounce a fine at the time of revocation. On the top of page two of the judgment,

the trial court included that “(4) the Court assessed a fine of $500.00[,]” the fine

imposed at the time of the deferred adjudication, as part of its summary of the

procedural history of the case. We conclude these words are surplusage and we

reform the judgment to delete the language “(4) the Court assessed a fine of $500.00”

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on the top of page two of the judgment. We sustain issue seven in part and need not

address issue four. See Tex. R. App. P. 43.2(b); Celestine v. State, Nos. 09-07-

00577-CR, 09-07-00578-CR, & 09-07-00579-CR, 

, at

**5-6 (Tex. App.—Beaumont Mar. 4, 2009, no pet.) (mem. op., not designated for

publication) (reforming judgment to delete surplusage).

                               Assessment of Costs

      In issues five and six, Valdez argues the trial court violated the Fourteenth

Amendment by assessing “revocation court costs” and “court costs” because Valdez

was indigent. 2 In issue eight, Valdez argues that the trial court erred in assessing

“revocation court costs” against Valdez because they were not orally pronounced at

the revocation hearing.

      Fines are different from fees and costs because fines are imposed as

punishment, like incarceration, whereas fees and costs serve a remedial function by

compensating the State for various costs associated with the criminal justice system.



      2
         To the extent that Valdez relies on the paragraph on page two of the
Judgment Adjudicating Guilt that states “After having conducted an inquiry into
Defendant’s ability to pay, the Court ORDERS Defendant to pay the fines, court
costs, reimbursement fees, and restitution as indicated above[]” in implying that the
trial court carried over court costs from the deferred adjudication, we need not
address this issue because we have deleted the “500.00 court cost” as unnecessary
surplusage in the judgment. Valdez does not otherwise challenge a specific cost or
basis for assessment of that cost. See Johnson v. State, 

 (Tex.
Crim. App. 2014) (“Absent a challenge to a specific cost or basis for the assessment
of that cost, a bill of costs is sufficient.”).
                                               7
Gipson v. State, 

 (Tex. Crim. App. 2014). “[C]ourt costs are

not part of the guilt or sentence of a criminal defendant, nor must they be proven at

trial; rather, they are ‘a nonpunitive recoupment of the costs of judicial resources

expended in connection with the trial of the case.’” Johnson v. State, 

 (Tex. Crim. App. 2014) (quoting Armstrong v. State, 

(Tex. Crim. App. 2011)). Because court costs are not punitive, a trial court may

assess court costs against a defendant in the written judgment even when the court’s

oral pronouncement does not include an assessment of costs. Weir v. State, 

 (Tex. Crim. App. 2009). “Although not binding precedent, we have

previously held that supervision fees, court costs, or fees associated with presentence

investigation reports are not part of a defendant’s punishment, and the trial court is

not required to orally pronounce those assessments at sentencing.” Davis v. State,

Nos. 09-18-00262-CR, 09-18-00263-CR, & 09-18-00264-CR, 

, at *12 (Tex. App—Beaumont Oct. 16, 2019, no pet.) (mem. op., not

designated for publication) (citing Lee v. State, No. 09-07-00257-CR, 

, at **4-5 (Tex. App.—Beaumont Oct. 24, 2007, no pet.) (mem.

op., not designated for publication); Revia v. State, No. 09-07-00068-CR, 

, at **4-6 (Tex. App.—Beaumont Aug. 29, 2007, no pet.) (mem.

op., not designated for publication)). A trial court can assess court costs against an

indigent defendant. See Allen v. State, 

 (Tex. App.—

                                          8
Texarkana 2013, no pet.); Owen v. State, 

 (Tex. App.—

Amarillo 2011, no pet.) (citing Armstrong, 

; Williams v. State,

 (Tex. App.—Amarillo 2011, pet. denied)). We overrule issues

five, six, and eight. As modified, we affirm the trial court’s judgment.

      AFFIRMED AS MODIFIED.


                                                    _________________________
                                                        LEANNE JOHNSON
                                                              Justice

Submitted on October 10, 2022
Opinion Delivered December 7, 2022
Do Not Publish

Before Golemon, C.J., Horton and Johnson, JJ.




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