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Date: 11-19-2022
Case Style:
Martin Felts v. The State of Texas
Case Number: 01-21-00275-CR
Judge: Sherry Radack
Court:
First Court of Appeals Houston, Texas
On appeal from the Co Ct at Law No 1 & Probate Ct of Brazoria County
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Description:
Houston, Texas – Criminal Defense lawyer represented defendant with misdemeanor theft of property charge.
On February 23, 2021, a complaint was filed against appellant in Pearland
Municipal Court, a municipal court of record.
2 On June 2, 2021, appellant pleaded
no contest to misdemeanor theft of property having a value less than $100, and the
municipal court assessed a $200 fine as punishment.
3
Under the authority of Article
45.051 of the Texas Code of Criminal Procedure, and with appellant’s agreement,
the trial court “order[ed] that the imposition of the fine is deferred” and set several
2
Appellant pleaded guilty in the Pearland Municipal Court, which is a municipal
court of record. See TEX. GOV’T CODE § 30.00003 (regarding creation of municipal
courts of record) and § 30.00005 (regarding jurisdiction of municipal courts of
record).
3 See TEX. PENAL CODE § 31.03(a), (e)(1).
3
conditions of the deferred disposition, including that appellant “NOT be
subsequently charged with any offense against the laws of the state, the United
States, or any penal ordinance of any political subdivision of the state.” See TEX.
CODE CRIM. PROC. art. 45.051.
On July 6, 2021, the municipal court notified appellant that the court was
setting a “show cause” hearing on August 2, 2021, at which appellant could “explain
why you failed to comply with your agreement(s) made with this court.” See id.
§ 45.051(c-1). The municipal court also informed appellant that “[y]ou may show
any proof you have to the judge that your condition(s) have been met.” Finally, the
municipal courted noted that “[i]f your case(s) results in a conviction, then the judge
will inform you of any fines due and the due date.”
On August 3, 2021, the municipal court held the aforementioned show-cause
hearing, after which it issued a Final Judgment that (1) noted that appellant had
pleaded no contest to the charged offense and (2) assessed fines and costs at $216,
noting that appellant had already paid $200. See id. §§ 45.041, 45.051(d). This
judgment constitutes a final conviction. See id. 45.051(d). Appellant did not request
a court reporter at the show-cause hearing, and no record was made of the
proceeding. See TEX. GOV’T CODE § 30.00010(c).
On August 11, 2021, appellant filed a Motion for New Trial in the municipal
court. See TEX. CODE CRIM. PROC. art. 45.037. In his motion, appellant (1) alleged
4
that his trial counsel was ineffective for advising him to plead guilty and challenged
(2) whether the municipal judge could, sua sponte, move to revoke the deferred
disposition, (3) whether he was entitled to advance notice of such revocation, (4)
whether his deferred disposition could be revoked without evidence that the
conditions of deferred had been violated, (5) whether the municipal court could
revoke his deferred disposition without an evidentiary hearing, (6) whether the
municipal court could place the burden of proof on appellant in the revocation
proceeding, (7) whether article 45.051 of the Code of Criminal Procedure
unconstitutionally shifts the burden of proof to appellant, (8) whether the court could
revoke deferred without an actual violation of the law, and (9) whether the municipal
court properly followed article 45.051, gave appellant adequate notice of the hearing,
and preserved a record thereof.
On September 9, 2021, the municipal court denied appellant’s motion for new
trial, and, on September 2, 2021, appellant filed a notice of appeal to the Brazoria
County Court at Law No. 1. See TEX. CODE CRIM. PROC. arts. 4.08, 45.042. The
appeal in the county court at law was on the record only,4
and, after both appellant
4 An appeal in the county court at law from a municipal court of record is “based on
error reflected in the record” and is not a trial de novo. See TEX. CODE CRIM. PROC.
art. 45.042(b).
5
and the State filed briefs, the county court at law affirmed the municipal court
judgment.5
This appeal followed. See TEX. CODE CRIM. PROC. art. 4.03.
PROPRIETY OF COUNTY COURT AT LAW’S AFFIRMATION OF
MUNICIPAL COURT OF RECORD JUDGMENT
In 12 issues on appeal, appellant contends the county court at law erred by
affirming the judgment of the municipal court of record. Specifically, appellant
contends that (1) the county court at law and this Court have jurisdiction over his
appeal, (2) his trial counsel was ineffective for advising him to plead guilty, (3) the
municipal judge could not, sua sponte, move to revoke the deferred disposition, (4)
he was denied advance notice of such revocation, (5) his deferred disposition could
not be revoked without evidence that the conditions of deferred disposition had been
violated, (6) the municipal court could not revoke his deferred disposition without
an evidentiary hearing, (7) the municipal court could not place the burden of proof
on appellant in the revocation proceeding, (8) article 45.051 of the Code of Criminal
Procedure unconstitutionally shifts the burden of proof to appellant, (9) the court
could not revoke a deferred disposition without an actual violation of the law, (10)
the municipal court did not properly follow article 45.051, give appellant adequate
notice of the hearing, and preserve a record thereof, (11) requiring appellant to prove
5 For purposes of this opinion, we refer to the justice court as the “trial court” and the
county court at law as the “reviewing court.”
6
compliance with the conditions of deferred disposition violates his right against selfincrimination, and (12) the trial court abused its discretion in revoking appellant’s
deferred disposition.
Applicable Law
As discussed earlier, appellant appealed the municipal court’s judgment to
the county court at law. To perfect an appeal from the judgment of
a municipal court of record, the defendant must file a motion for new trial setting
out “the points of error on which the appellant complains.” TEX. GOV’T CODE
§ 30.00014(c). The reviewing court must decide the appeal “on the basis of the errors
that are set forth in the appellant’s motion for new trial and that are presented in the
clerk’s record and reporter’s record.” Id. § 30.00014(b). Accordingly, “when
appealing from a municipal court of record, to preserve an issue for consideration, a
claim of error must be raised in the motion for new trial, and the record must reflect
that the same claim was raised before the municipal court.” Leverson v. State, Nos.
03-15-00090-CR, 2016 WL 4628054, at *2 (Tex. App.—Austin Aug. 30, 2016, no
pet.) (mem. op., not designated for publication). Moreover, “[a]n appeal from
the municipal court of record may not be by trial de novo.” TEX. GOV’T CODE §
30.00014(b); see Swain v. State, 319 S.W.3d 878, 879 (Tex. App.—Fort Worth
2010, no pet.) (mem. op.) (providing that reviewing court “may not retry the case”).
Instead, the reviewing court “sits as an appellate court and considers arguments
7
addressing any errors shown in the municipal court record.” Nelson v. State, Nos.
12-10-00263-CR, 2011 WL 2638738, at *1 (Tex. App.—Tyler June 30, 2011, no
pet.) (mem. op., not designated for publication).
After the reviewing court considers the appeal, a defendant may seek further
appellate review with a court of appeals if “the fine assessed against the defendant
exceeds $100 and the judgment is affirmed by the [reviewing] court” or if “the sole
issue is the constitutionality of the statute or ordinance on which a conviction is
based.” TEX. GOV’T CODE § 30.00027(a). However, unlike more traditional appeals,
“the record and briefs on appeal in the [reviewing] court constitute the record and
briefs on appeal to the court of appeals unless the rules of the court of criminal
appeals provide otherwise.” Id. § 30.00027(b). Accordingly, the briefs before the
reviewing court are “the operative brief[s] before” a court of appeals. See Roberts v.
State, 49 S.W.3d 89, 90 (Tex. App.—Fort Worth 2001, pet. ref’d); see also O’Reilly
v. State, 501 S.W.3d 722, 724 (Tex. App.—Dallas 2016, no pet.) (noting that
defendant “raised three issues in his appeal to the county criminal court of appeals
to which he is limited here on appeal”); Sanchez v. State, 137 S.W.3d 860, 861 n.2
(Tex. App.—Houston [1st Dist.] 2004, pet. dism’d) (explaining that discussion of
appellate point “refer[red] to the issue raised in the brief filed by appellant in the
county criminal court”). A court of appeals may not “consider the briefs filed by the
parties” with the court of appeals. See Brooks v. State, 226 S.W.3d 607, 609 n.3
8
(Tex. App.—Houston [1st Dist.] 2007, no pet.); see also Avni v. State, No. 14-16-
00445-CR, 2016 WL 7108398, at *2 (Tex. App.—Houston [14th Dist.] Dec. 6, 2016,
no pet.) (mem. op., not designated for publication) (stating that “[t]he court of
appeals will not consider briefs in a municipal appeal other than those filed in
the county court”); Huy H. Le v. State, No. 14-14-00747-CR, 2015 WL 3524294, at
*1 n.2 (Tex. App.—Houston [14th Dist.] June 4, 2015, no pet.) (mem. op., not
designated for publication) (same).
“The Government Code does not fully address how a court of appeals should
review an appeal from a judgment by a municipal court of record so as to account
for the fact that there has been an intervening appellate determination by the county
court at law.” Canada v. State, 547 S.W.3d 4, 12 (Tex. App.—Austin 2017, no pet.).
“However, the limitations imposed on the record and the briefing are strong
indicators that the legislature intended for the review by a court of appeals to be a
second appellate review independent of the determinations made by the first
reviewing court, limited to the same challenges presented to the first reviewing court
regarding the municipal court’s judgment.” Id. (citing Garrett v. State, 424 S.W.3d
624, 628 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (determining that court
of appeals “review[s] the same two issues raised in the briefs submitted to the county
criminal court at law”)).
9
In this case, appellant contends that the municipal court erred by denying his
motion for new trial. We review a trial court’s denial of a motion for new trial under
an abuse-of-discretion standard. Charles v. State, 146 S.W.3d 204, 208 (Tex. Crim.
App. 2004), superseded by rule on other grounds as stated in State v. Herndon, 215
S.W.3d 901, 905 n.5 (Tex. Crim. App. 2007); see also Davis v. State, 329 S.W.3d
798, 803 (Tex. Crim. App. 2010) (noting that appellate courts review evidentiary
rulings for abuse of discretion). Under that standard, a trial court’s ruling will only
be deemed an abuse of discretion if it is so clearly wrong as to lie outside “the zone
of reasonable disagreement,” Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App.
2002), or is “arbitrary or unreasonable,” State v. Mechler, 153 S.W.3d 435, 439
(Tex. Crim. App. 2005). Moreover, “[a]n appellate court views the evidence in the
light most favorable to the trial court’s ruling, considering only those arguments
before the court at the time of the ruling.” Ocon v. State, 284 S.W.3d 880, 884 (Tex.
Crim. App. 2009).
Jurisdiction
In the reviewing court, the State argued that appellant had no right of appeal
because he had contractually bargained it away in return for the State’s
recommendation that the disposition of his case be deferred. Specifically, the State
represented to the reviewing court as follows:
In this case, Appellant, with the benefit of the advice of counsel, entered
into a plea agreement where his right to a jury trial and/or an appeal
10
were expressly waived in the written document. In consideration, the
State recommended conditions that, if successfully completed, would
result in the charge against Appellant being dismissed. The same
agreement also stated that if the terms were breached, a conviction
would be entered. The terms were accepted by the [municipal] court,
and the plea was accepted. The terms were breached. The [municipal]
court has not given Appellant permission to raise an appeal. There is a
Certificate of appeal [from the municipal court] stating that the
Appellant has no right of appeal.
Indeed, the municipal court’s August 25, 2021 order denying appellant’s
motion for new trial discusses the plea agreement as follows:
On June 2, 2021, counsel for Martin Wayne Felts reached an agreement
in open court (virtual remote hearing streamed live) after Mr. Felts’
counsel spoke to the prosecutor they reached an agreement which was
proven up in the court during the hearing: the defendant Martin Wayne
Felts entered a plea of No Contest in open court to his charge of Theft.
Martin Wayne Felts agreed to no contest and a 120 day deferred
disposition, during which time he was not to be subsequently charged
with any other offense against the laws of the state, the United States,
or any penal ordinance of any political subdivision of the state.
Appellant argues that, in the past, no appeal could be taken from a decision to
revoke deferred and that the municipal courts had followed that same law. See
Jamshedji v. State, 230 S.W.3d 224, 225 (Tex. App.—Houston [14th Dist.] 2006,
pet. ref’d) (holding that, because law concerning municipal courts did not provide
an analogous rule of procedure, court would apply Code of Criminal Procedure
article 42.12, which “does not provide for the direct appeal from a trial court’s
determination to proceed to adjudication when a defendant violates conditions of
community supervision”). Appellant further argues that article 42.12 of the Code of
11
Criminal Procedure has been amended to allow such an appeal and that the municipal
courts should also.
The State responds that the issue of a statutory right to appeal is irrelevant
because, even if appellant had a statutory right of appeal, he contractually waived it.
We agree that the issue is one of waiver, but disagree with the State’s position that
appellant, by pleading no contest in exchange for a deferred disposition, has waived
all right of appeal. In Hargesheimer v. State, 182 S.W.3d 906, 913 (Tex. Crim. App.
2006), the court of criminal appeals held that “in a plea-bargain case for deferred
adjudication community supervision, the plea bargain is complete at the time the
defendant enters his plea of guilty in exchange for deferred adjudication community
supervision.” While appellant may not appeal his no-contest plea or the order
deferring disposition of his case, a presentencing plea bargain does not deprive an
appellant of the right to appeal from a later adjudication proceeding. See id.; see
also Guerrero v. State, 554 S.W.3d 268, 272–73 (Tex. App.—Houston [14th Dist.]
2018, no pet.) (holding that waiver of right to appeal signed at time of plea did not
prevent appeal from later judgment after adjudication).
Here, appellant’s appeal to the county court at law was not from the municipal
court’s June 2, 2021 order deferring his adjudication, but was from the municipal
court’s August 3, 2021 final judgment, which was appealable after the August 25,
2021 denial of his motion for new trial. See TEX. GOV’T CODE § 30.00014(c), (d).
12
Thus, the reviewing court had jurisdiction over appellant’s appeal, and this
Court has jurisdiction based on the reviewing court’s affirmance of appellant’s
conviction. See TEX. GOV’T CODE § 30.00027(a) (stating appellant has right of
further appeal to court of appeals from reviewing court if fine exceeds $100 and
judgment is affirmed by county court).
Having determined that we have jurisdiction, we proceed to address
appellant’s remaining issues.
Record from Municipal Court Proceedings
In issue 10, appellant contends that the trial court erred by not preserving a
record of either the plea hearing or the hearing at which his deferred disposition was
revoked. He further argues that the absence of a court reporter’s record violates his
right to due process and due course of law. We address this issue first because its
resolution impacts the remaining issues on appeal.
Article 30.00010 of the Texas Government Code provides in pertinent part:
(a) The municipality shall provide a court reporter to preserve a record
in cases tried before a municipal court of record.
. . . .
(c) the court reporter is not required to record testimony in a case unless
the judge or one of the parties requests a record.
TEX. GOV’T CODE § 30.00010(a),(c).
13
This Court considered the absence of a court reporter’s record in a municipal
court appeal, noting:
This statute gives appellant the right to have a court reporter present at
his trial, if he requests one. However, the record does not reflect, nor
does appellant contend in his brief, that he ever requested the presence
of a court reporter. Appellant was not deprived of his right to have a
court reporter present at his trial; he merely failed to exercise that right.
Marciglio v. State, 862 S.W.2d 206, 207 (Tex. App.—Houston [1st Dist.] 1993, no
pet.); King v. State, No. 05-99-0841-CR, 2000 WL 1593973, at * 1 (Tex. App.—
Dallas Oct. 26, 2000, no pet.) (mem. op., not designated for publication) (holding
that defendant not denied due process by absence of court report in municipal court;
“he merely failed to exercise [the right to have a court reporter present]”).
Appellant’s complaint is that he was not “informed how to request a record of
the [zoom] hearing.” However, he does not contend that he ever even attempted to
request a record, not that he was unable to do so.
Because appellant never requested a court reporter, he was not denied his dueprocess right to have a court reporter present; he merely failed to exercise that right.
Accordingly, we overrule issue 10.
Ineffective Assistance of Counsel
In issue two, appellant contends that his trial counsel was ineffective because
“he did not advise [appellant,] with substantial evidence of innocence[,] to go to
trial.”
14
In reviewing a claim of ineffective assistance of counsel, we apply the United
States Supreme Court’s two-prong test from Strickland v. Washington, 466 U.S. 668
(1984), that considers whether (1) the attorney’s performance was deficient and (2)
that deficient performance harmed the defendant. Under the first Strickland prong,
any judicial review of whether counsel’s performance was deficient must be highly
deferential to trial counsel and avoid the deleterious effects of hindsight. Thompson
v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We begin by presuming that
trial counsel performed within professional norms. Id. We do not assume that
counsel lacked a sound reason for making the choices he did; on the contrary, the
defendant must demonstrate that no plausible reason exists for a particular act or
omission. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002); Toledo v.
State, 519 S.W.3d 273, 287 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d). When
the record is silent as to trial counsel’s strategy, we will not conclude that the
defendant received ineffective assistance unless the challenged conduct was “so
outrageous that no competent attorney would have engaged in it.” Goodspeed v.
State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005) (quoting Garcia v. State, 57
S.W.3d 436, 440 (Tex. Crim. App. 2001)). Rarely will the trial record contain
sufficient information to permit a reviewing court to fairly evaluate the merits of
such a serious allegation. See Bone, 77 S.W.3d at 833. In the majority of cases, the
defendant is unable to meet the first prong of the Strickland test because the record
15
is underdeveloped and does not adequately reflect the alleged failings of trial
counsel. See Mata v. State, 226 S.W.3d 425, 430 (Tex. Crim. App. 2007).
Here, the record is not merely underdeveloped; in this case, there is no
reporter’s record from either the plea hearing or the hearing at which the deferred
disposition was revoked. Even if we were to assume that appellant could raise an
ineffective-assistance-of-counsel claim in connection with his initial “no contest”
plea,6 we nonetheless conclude that appellant fails in his burden to show such
ineffective assistance. Although appellant claims that defense counsel urged him to
plead “no contest” despite “substantial evidence of innocence,” nothing in the record
supports his assertions regarding either counsel’s advice or his own innocence.
Accordingly, we overrule issue two.
Deferred Disposition Pursuant to Article 45.051—Applicable Law
Appellant’s remaining issues all concern the proper application of article
45.051 of the Texas Code of Criminal Procedure, which permits a municipal court
to suspend a sentence and defer final disposition of a criminal conviction.7 Thus, we
consider the relevant portions of the statute, which provide as follows:
6 We again note that appellant pleaded “no contest” in exchange for the State’s
agreement to recommend that the municipal court defer appellant’s sentencing if he
met certain conditions for a period of four months.
7 This deferral statute applies only to criminal proceedings in justice and municipal
courts and is wholly separate from deferred-adjudication procedures permitted by
articles 42a.101-111 of the Texas Code of Criminal Procedure.
16
(a) On a plea of guilty or nolo contendere by a defendant or on a finding
of guilt in a misdemeanor case punishable by fine only and payment of
all court costs, the judge may defer further proceedings without entering
an adjudication of guilty and place the defendant on probation for a
period not to exceed 180 days. In issuing the order of deferral, the judge
may impose a find on the defendant in an amount not to exceed the
amount of the find that could be imposed on the defendant as
punishment for the offense. The fine may be collected at any time
before the date on which the period of probation ends. The judge may
elect not to impose the fine for good cause shown by the defendant. If
the judge orders the collection of a fine under this subsection, the judge
shall require that the amount of the fine be credited toward the payment
of the amount of any fine imposed by the judge as punishment for the
offense. An order of deferral under this subsection terminates any
liability under a bond given for the charge.
. . . .
(b) During the deferral period, the judge may require the defendant to:
(1) post a bond in the amount of the fine assessed as punishment
for the offense to secure payment of the fine;
(2) pay restitution to the victim of the offense in an amount not
to exceed the fine assessed as punishment for the offense;
(3) submit to professional counseling;
(4) submit to diagnostic testing for alcohol or a controlled
substance or drug;
(5) submit to a psychosocial assessment;
(6) successfully complete an alcohol or drug abuse treatment or
education program, . . .
(7) pay as reimbursement fees the costs of any diagnostic testing,
psychosocial assessment, or participation in a treatment or
education program either directly or through the court as court
costs;
17
(8) complete a driving safety court . . .
(9) present to the court satisfactory evidence that the defendant
has complied with each requirement imposed by the judge under
this article, and
(10) comply with any other reasonable condition.
. . . .
(c) On determining that the defendant has complied with the
requirements imposed by the judge under this article, the judge shall
dismiss the complaint, and it shall be clearly noted in the docket that
the complaint is dismissed and that there is not a final conviction.
(c-1) If the defendant fails to present within the deferral period
satisfactory evidence of compliance with the requirements imposed by
the judge under this article, the court shall:
(1) notify the defendant in writing, mailed to the address on file
with the court or appearing on the notice to appear, of that failure;
and
(2) require the defendant to appear at the time and place stated in
the notice to show cause why the order of deferral should not be
revoked.
. . . .
(d) If on the date of a show cause hearing under Subsection (c-1) . . .
the defendant does not present satisfactory evidence that the defendant
complied with the requirements imposed, the judge may impose the fine
assessed or impose a lesser fine. The imposition of the fine or lesser
fine constitutes a final conviction of the defendant. . . .
(e) Records relating to a complaint dismissed as provided by this article
may be expunged under Article 55.01. If a complaint is dismissed under
this article, there is not a final conviction and the complaint may not be
used against the person for any purpose.
18
. . .
TEX. CODE CRIM. PROC. art. 45.051.
Notice
In issues three and four, appellant complains about the notice, or lack thereof,
that he received under article 45.051. Specifically, in issue three he argues that the
State was required to file a motion to revoke and that he was entitled to receive
advanced notice of the revocation. In both issues, appellant equates the deferred
process set forth in article 45.051 with the revocation of community supervision and
deferred adjudication community supervision found in articles 42A.751 (revocation
of community supervision) and 42A.108 (revocation of deferred adjudication
community supervision) of the Code of Criminal Procedure. Under those statutes,
the trial court retains jurisdiction to hold a revocation hearing when (1) the State files
a motion to revoke, continue or modify community supervision or deferred
adjudication community supervision, and (2) a capias is issued for the arrest of the
defendant. See TEX. CODE CRIM. PROC. arts. 42A.751(l) (regarding community
supervision) and 42A.108 (regarding revocation of deferred adjudication community
supervision). Neither of those statutes are applicable here.
Instead, article 45.051 provides that the trial court shall (1) “notify the
defendant in writing . . . of that failure [to present satisfactory evidence of
compliance]” and (2) “require the defendant to appear at the time and place stated in
19
the notice to show cause why the order of deferral should not be revoked.” See id.
§ 45.051(c-1) (regarding revocation of deferral order in municipal court). On July
6, 2021, the trial court sent appellant a notice complying with this requirement.
Specifically, the notice provided:
You are now set for a Show Cause Hearing on your case(s) above. Due
to the Coronavirus, your case has been set for a Remote Appearance for
the safety concern for our defendants, citizens, and staff:
Your case has been set for: Virtual Court Docket on August 2, 2021 at
9:00 AM to explain why you failed to comply with your agreement(s)
made with this court.
. . . .
You may show any proof you have to the judge that your condition(s)
have been met.
You will be convicted if:
You do not appear for this show cause hearing.
The judge finds at the hearing that you have not fully complied
with the conditions of your agreement.
You have paid your balance or fines after your due date on your
agreement, and before coming to this hearing.
If your case(s) results in a conviction, then the judge will inform you of
any fines due and the due date. If you do not come to this hearing, we
will send a letter by mail to your last known address with this
information.
This notice complies with article 45.051.
20
Appellant provides no argument or authority to support his assertion that due
process requires the same level of specificity in the notice to revoke a deferred
disposition in municipal court as a motion to revoke either community supervision
or deferred adjudication supervision. Indeed, the only case cited by appellant—
Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973)— “has been interpreted to protect
persons who are released [from confinement], from reincarceration without due
process of law.” Ex parte Hale, 117 S.W.3d 866, 871 (Tex. Crim. App. 2003) (citing
Gagnon, 411 U.S. at 782). Article 45.051 only applies in “misdemeanor case[s]
punishable by fine only and payment of all court costs.” TEX. CODE CRIM. PROC. art.
45.051.
Nor does appellant claim that he was unaware of the grounds on which
revocation was based. The conditions of deferred in this case were minimal: (1) pay
of court costs and a special expense fee in the amount of $200 by July 2, 2021; (2)
take a four-hour anti-theft class by August 31, 2021, and (3) “not be subsequently
charged with any offense against the laws of the state, the United States, or any penal
ordinance of any political subdivision of the state.” The court costs could have been
paid any time before the show cause hearing (and, in fact, the record shows that they
had been paid) and completion of the anti-theft class was not yet due, thus the basis
for the revocation was necessarily because appellant had subsequently been charged
21
with a crime.8
Thus, appellant cannot show that he was harmed by his claimed lack
of notice. See TEX. R. APP. P. 44.2.
Accordingly, we overrule issues three and four.
Evidentiary issues
In four issues, appellant complains about the allocation of the burden of proof
and the sufficiency of the evidence at the show-cause hearing. Specifically, in issues
five and six, appellant argues that no evidence was presented by either side at the
August 2, 2021 show-cause hearing. And, in issues seven and 11, appellant argues
that the statute unconstitutionally shifts the burden of proof at the show-cause
hearing to prove that he complied with the conditions of deferred disposition.
However, as mentioned earlier, appellant did not request a record from the
show cause hearing,9
thus he cannot show that the evidence is legally insufficient,
regardless of which party bears the burden of proof. See Hartis v. State, No. 14-11-
00882-CR, 2012 WL 359282, *2 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d)
(mem. op., not designated for publication) (holding that defendant who did not
8 The trial court’s order denying appellant’s motion for new trial states that “[o]n July
3, 2021 at 22:57, [appellant] was booked into the Pearland Jail for a Class ‘C’
Misdemeanor theft violation and a Class ‘A’ Misdemeanor Unlawfully Carrying of
Weapon which the Brazoria County Judge place on an $8,000 bond.”
9 See TEX. GOV’T CODE § 30.00010 (“The court reporter is not required to record
testimony in a case unless the judge or one of the parties requests a record.”).
22
request record under article 30.00010 failed to preserve errors related to evidence or
objections at trial).
Accordingly, we overrule issues five, six, seven, and 11.
Revocation during deferral period
In issue eight, appellant contends that “the [trial court] only has the authority
to impose the fine if the Defendant fails to submit evidence of compliance by the
end of the deferral period,” and that, “[s]ince the power to impose the fine does not
start until the end of the deferral period[,] the Court had no authority to impose the
fine on August 2 as the deferral period continues until September 30.” Specifically,
appellant points out that the statute provides that, “[i]f the defendant fails to present
within the deferral period satisfactory evidence of compliance with the requirements
imposed by the judge,” the judge shall notify the defendant and hold a show-cause
hearing. See TEX.CODE CRIM. PROC. art. 45.051(c-1) (emphasis added). Appellant’s
position is that the trial court was required to wait until the end of the deferral period
to hold a show-cause hearing.
Assuming without deciding that the statute gives appellant until the expiration
of the deferral period before he can be required to show cause why the deferral
should not be revoked, appellant cannot show that he was harmed by a premature
hearing. According to the trial court’s denial of appellant’s motion for new trial, the
deferred disposition was revoked because, on July 3, 2021, appellant was charged
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with subsequent offenses, i.e., class C misdemeanor theft and class B unlawful
carrying of a weapon. This was in violation of the condition of deferred that appellant
“NOT be subsequently charged with any offense against the laws of the state, the
United States, or any penal ordinance of any political subdivision of the State.”
Waiting until the end of the deferral period would not have changed the fact that
appellant was subsequently charged with a crime, thus, appellant cannot show that
the trial court’s error, if any, in prematurely holding the show-cause hearing affected
his “substantial rights.” See TEX. R. APP. P. 44.2(b).10
Accordingly, we overrule issue eight.
Condition of deferred disposition
In issue nine, appellant contends that the trial court abused its discretion by
imposing a condition of deferred that “does not require an actual violation of the law
in order to revoke.” Specifically, appellant argues that the condition that appellant
“‘not be subsequently charged with any offense’ do[es] not make it clear to a person
of ordinary intelligence what they are required to do or avoid doing.”
However, appellant voluntarily entered into a plea agreement with this
condition and did not object to the condition at the time the deferred disposition
10 We also note that this issue was not in appellant’s motion for new trial, thus the
issue is not preserved. See TEX. GOV’T CODE § 30.00014(b); Lambert v. State, 908
S.W.2d 53, 54 (Tex. App.—Houston [1st Dist.] 1995, no pet.) (interpreting
predecessor statute).
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order was signed. Indeed, he waited until after the court revoked the deferred
disposition before objecting. As such, his objection is untimely and does not preserve
error. See TEX. R. APP. P. 33.1(a)(1) (requiring complaint to trial court “by a timely
request, objection, or motion”).
We overrule issue nine.
Nature of trial court’s discretion
In issue 12, appellant contends that “the trial court abused its discretion not to
revoke by misunderstanding the nature of its discretion.” Specifically, appellant
points out that, even though the statute gives the trial court the discretion to extend
the deferral period or reduce the fine, see id. § 45.051(c-2), (d), the court’s showcause notice said that “You will be convicted if: you do not appear for this show
cause hearing; the judge finds at the hearing that you have not fully complied with
the terms of your agreement; you have paid your balance or fines after your due date
on your agreement, and before coming to this court.” (Emphasis added).
However, for an appellant to preserve a point of error on appeal from a
municipal court, he must raise the identical point in his motion for new trial. TEX.
GOV’T CODE § 30.00014(b) (“The appellate court shall determine each appeal from
a municipal court of record conviction . . . on the basis of the errors that are set forth
in the appellant’s motion for new trial and that are presented in the clerk’s record
and reporter’s record prepared from the proceedings leading to the conviction or
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appeal”); Lambert v. State, 908 S.W.2d 53, 54 (Tex. App.—Houston [1st Dist.]
1995, no pet.) (interpreting predecessor statute). Appellant’s motion for new trial
does not have an issue in which appellant complains that the trial court
“misunderstood the nature of its discretion.” Thus, the issue is waived.
We overrule issue 12.
Outcome: We affirm the county court at law’s judgment, which in turn affirmed the
municipal court’s judgment.
Plaintiff's Experts:
Defendant's Experts:
Comments: