March-April 2015

A compendium of bite-size legal tips

­Melissa Hervey

Assistant District ­Attorney in ­Harris ­County

Refresher on Restitution, Part 1: The trial court must orally pronounce a restitution order at sentencing or it will not be enforceable. The trial court must orally pronounce its restitution order at sentencing in order for the restitution order to be valid.1

Refresher on Restitution, Part 2: When it is discovered on appeal that there is an error in the trial court’s restitution order, should the appellate court delete the order or remand the case for a restitution hearing?
    Due process considerations place three limitations on the restitution that a trial judge may order: 1) the restitution ordered must be for only the offense for which the defendant is criminally responsible; 2) the restitution must be only for the victim or victims of the offense for which the defendant is charged; and 3) the amount of restitution ordered must be just and supported by a factual basis in the record.2
    When the trial court’s restitution order is erroneous because it violates the first or second of these limitations, a reviewing court may delete the restitution order.3
    However, if the trial court’s restitution order is erroneous because it violates the third limitation—when there is an insufficient factual basis in the record to support the restitution order, or when the trial court orally pronounces the “fact” of restitution, making clear during the sentencing hearing that restitution is authorized and will be ordered, but does not orally pronounce the amount or recipients of restitution—“appellate courts should vacate and remand the case for a restitution hearing because the trial judge is authorized to assess restitution, but the amount of restitution is not (yet) supported by the record.”4

Forgetting a fine is sometimes not fine at all. Several Texas statutes impose a mandatory fine when a defendant is convicted of certain crimes, including virtually all of the offenses proscribing the possession or manufacture/delivery of large amounts of controlled substances or marijuana.5 If the trial court fails to assess and orally pronounce a fine at sentencing when a fine is required by statute, the sentence portion of the court’s written judgment is void. An appellate court cannot reform the judgment to add a fine in any amount, or to list the fine as $0. Instead, despite that the defendant benefitted from the error, an appellate court will have no choice but to reverse and remand the case to be retried for punishment.6
    Note, however, that the mandatory fine listed for all of the offenses proscribing the possession or manufacture/delivery of large amounts of controlled substances or possession or manufacture/delivery of large amounts of marijuana would not be required when the defendant’s punishment is enhanced by prior felony convictions—which would then bring the punishment range under the parameters of the punishment-enhancement provisions of Chapter 12 of the Texas Penal Code.7

During voir dire, it is permissible to ask potential jurors, “What verdict did you reach during your previous jury service?” If during voir dire you learn that a venireperson has previously served on a criminal jury panel, there is no legal reason why you cannot ask that person what verdict he rendered during that prior jury service.8

If the State loses or inadvertently destroys its copy of a DWI video after providing a copy of the video to the defense during discovery, the State may require the defense to produce its copy of the video at trial via a subpoena duces tecum.9


1 See Sauceda v. State, 309 S.W.3d 767, 779 (Tex. App.—Amarillo 2010, pet. ref’d); Alexander v. State, 301 S.W.3d 361 (Tex. App.—Fort Worth 2009, no pet.); see also Burt v. State, 445 S.W.3d 752, 756-57 (Tex. Crim. App. 2014) (explaining that restitution is a form of punishment for the convicted defendant, among other purposes, and that the defendant is entitled to have all of the terms of his sentence and punishment orally pronounced to him at trial).
2 Burt, 445 S.W.3d at 758.
3 See Burt, 445 S.W.3d at 757-58.
4 Burt, 445 S.W.3d at 758-61 (parenthetical in original).
5 See e.g., Tex. Health & Safety Code §481.112(e); Tex. Health & Safety Code §481.112(f); Tex. Health & Safety Code §481.117(e); Tex. Health & Safety Code §481.121(b)(6).
6 See Ibarra v. State, 177 S.W.3d 282, 284 (Tex. App.—Houston [1st Dist.] 2005, no pet.); Scott v. State, 988 S.W.2d 947, 948 (Tex. App.—Houston [1st Dist.] 1999, no pet.).
7 See Lavigne v. State, 803 S.W.2d 302, 303 (Tex. Crim. App. 1990) (affirming that the sentence of a defendant for a violation of the Controlled Substances Act could be properly enhanced under §12.42(d) of the Texas Penal Code); Gutierrez v. State, 628 S.W.2d 57, 61 (Tex. Crim. App. 1980) (“Convictions obtained under the Controlled Substances Act may be enhanced under the Texas Penal Code.”) (citing Young v. State, 552 S.W.2d 441 (Tex. Crim. App. 1977)).
8 See Blackman v. State, 414 S.W.3d 757, 761 n.7 (Tex. Crim. App. 2013) (“The parties seemed to operate under the assumption that the law would absolutely prohibit any inquiry during voir dire into what specific verdict, if any, the prospective jurors had actually reached in the course of their prior jury service. We note that while it may be within a trial court’s discretion to prohibit such a question, in the interest of placing reasonable limitations upon the length of voir dire, there is no absolute legal impediment to posing it”) (citing Redd v. State, 578 S.W.2d 129, 130-31 (Tex. Crim. App. 1979); see also Espinoza v. State, 653 S.W.2d 446, 450 (Tex. App.—San Antonio 1982) (noting that a trial court does not abuse its discretion by prohibiting a “what verdict” question in voir dire, but “no statute or case law prohibits the question from being asked”), aff’d, 669 S.W.2d 736 (Tex. Crim. App. 1984).
9 See Adams v. State, 969 S.W.2d 106 (Tex. App.—Dallas 1998, no pet.) (holding that the DWI videotape was not protected by the work-product or attorney-client privileges, and rejecting the defendant’s “notion that information which is tendered as a result of court ordered or statutorily mandated discovery can be converted into privileged information, though it has not been altered since tendered, enhanced by fruits of an attorney’s labor since tendering, or added to with communicative actions after tendering….”); c.f. Mayberry v. State, No. 04-13-00382-CR, 2014 WL 4230143, at *1-3 (Tex. App.—San Antonio Jan. 1, 2014, no pet.) (mem. op., not designated for publication) (concluding that, when the defense subpoenaed the parole records of a potential witness, and the parole officer later could not locate those records to provide to the State in response to the State’s subpoena duces tecum, the trial court did not err by granting the State’s motion to order the defendant’s attorney to turn the parole records over to the court, observing that “[the potential witness’s] parole records were not transformed into protected work product merely because [the defendant’s] counsel acquired them through subpoena.”).