Damron v. State, No. 2-08-399-CR (Tex. App. 3/18/2010), 2-08-399-CR.

• Decision Date: 18 March 2010
• Docket Number: No. 2-08-399-CR.,2-08-399-CR.
• Parties: PAUL WAYNE DAMRON, Appellant, v. THE STATE OF TEXAS, State.
• Court: Texas Court of Appeals

Page 1

Unpublished Opinion

PAUL WAYNE DAMRON, Appellant, v. THE STATE OF TEXAS, State.

No. 2-08-399-CR.

Court of Appeals of Texas, Second District, Fort Worth.

Delivered: March 18, 2010.

Do Not Publish. Tex.R.App.P. 47.2(b).

Appeal from the 89th District Court of Wichita County.

Panel: LIVINGSTON, WALKER, and MEIER, JJ.

MEMORANDUM OPINION¹

TERRIE LIVINGSTON, Justice.

In one point, appellant Paul Wayne Damron appeals the trial court's requirement that he pay for a Secure Continuous Remote Alcohol Monitor (SCRAM) as a condition of his community supervision associated with his felony driving while intoxicated (DWI) conviction. See Tex. Penal Code Ann. § 49.04(a) (Vernon 2003), § 49.09(b)(2) (Vernon Supp. 2009). We modify the trial court's judgment and affirm the judgment as modified.

Background Facts

A Wichita County grand jury indicted Damron for DWI; the indictment alleged that Damron had two previous convictions for that offense. Damron swore that he was indigent and therefore received court-appointed counsel.

At a pretrial hearing in May 2008, Damron's counsel told the trial court that Damron had tentatively agreed with the State to a plea bargain that would include community supervision but that Damron wanted to testify about his inability to pay for a SCRAM device, which was to be one of the terms of the community supervision.² Damron testified that he would not be able to afford the $360 per month cost of the device.³ Specifically, he explained that he had a job that paid him $ 9.50 per hour but that he was about to lose his job because the business that he worked for was closing. He also testified that he had been paying past due child support and owed approximately $ 20,000 for such support; that he pays bills for utilities, groceries, car insurance, and gas; and that he owes money for medical bills. The trial court expressed uncertainty about removing the SCRAM condition but told the parties that it would consider Damron's request to remove it.

Sometime between the May 2008 hearing and August 21, 2008, the trial court told the parties that it would not remove the SCRAM device as a condition of Damron's community supervision.⁴ On the morning of August 21, Damron filed a written "Objection" to the SCRAM condition. Then, on the same day, as part of his plea agreement, Damron received admonishments from the trial court about his rights, waived those rights, entered a judicial confession, and pled guilty.⁵

The trial court convicted Damron and placed him on community supervision for five years. Damron's community supervision includes the conditions that he wear a SCRAM device for 180 days, pay all costs for the SCRAM device to the monitoring company, and pay other substantial fees and costs that are unrelated to the SCRAM device.

In September 2008, Damron again objected to the SCRAM condition by filing a motion to modify the terms of his community supervision. The trial court heard that motion and Damron's motion for new trial during a hearing in October 2008.⁶ After the hearing, the trial court denied both motions. Damron filed his notice of appeal.

Our Jurisdiction Over This Appeal

In one point, Damron argues that the trial court abused its discretion by unreasonably requiring him to pay the costs associated with the SCRAM device.⁷ The State "does not contest" Damron's claim that the trial court abused its discretion, but it argues that we do not have jurisdiction over Damron's appeal.

The requirements of rule of appellate procedure 25.2

The State contends that we do not have jurisdiction because Damron did not comply with the rules of appellate procedure. Rule 25.2 states in part,

In a plea bargain case—that is, a case in which a defendant's plea was guilty or nolo contendere and the punishment did not exceed the punishment recommended by the prosecutor and agreed to by the defendant—a defendant may appeal only:

(A) those matters that were raised by written motion filed and ruled on before trial, or

(B) after getting the trial court's permission to appeal.

Tex. R. App. P. 25.2(a)(2); see Ex parte Reedy, 282 S.W.3d 492, 501 (Tex. Crim. App. 2009); Turley v. State, 242 S.W.3d 178, 179-80 (Tex. App.-Fort Worth 2007, no pet.) (mem. op.) (dismissing an issue without addressing its merits because the trial court did not give the appellant permission to appeal that issue and the issue was not raised by a written motion filed and ruled on before trial). The record establishes that this is a plea bargain case and that the trial court has not given Damron its permission to appeal; thus, our jurisdiction depends on whether Damron's "Objection" to the SCRAM condition qualifies as a "written motion filed and ruled on before trial." See Tex. R. App. P. 25.2(a)(2)(A).

At the time of Damron's plea, the trial court entered an order certifying Damron's right to appeal based on his written objection. In December 2009, based on our initial review of the record, we abated the case in part because it appeared to us that Damron may not have obtained a ruling on his objection before trial. During the abatement, the trial court held a hearing, determined that Damron had not complied with rule 25.2, issued written findings in that regard, and amended its certification to state that this is "a plea-bargain case, and the defendant has NO right of appeal." The trial court's written findings relate, among other facts,

• "It is not disputed that the issue of the SCRAM community supervision term was raised pretrial";

• "By July 10, 2008, the trial court had informed the defendant that any community supervision would include the SCRAM term. No written pretrial motion had been filed as of the July 10, 2008 hearing"; and

• "Minutes prior to the entry of his guilty plea, the defendant filed a `written objection to community supervision provision(s).' At the time the `objection' was filed, the trial court had already announced its decision."

We must review the correctness of a trial court's certification of a defendant's right to appeal, and if we determine that the court's certification is not supported by the record, we must take appropriate action. See Chavez v. State, 183 S.W.3d 675, 680 (Tex. Crim. App. 2006); Dears v. State, 154 S.W.3d 610, 614-15 (Tex. Crim. App. 2005); Morgon v. State, 185 S.W.3d 535, 538-39 (Tex. App.-Corpus Christi 2006, pet. ref'd) (holding that the trial court's certification was defective and dismissing an appeal without further action). After reviewing the record, including the portions of the record filed after we issued our abatement order, we conclude that the trial court's second certification of Damron's right to appeal is incorrect and that the court's first certification is correct, and we hold that Damron complied with rule 25.2(a)(2) because he raised matters by a written motion filed and ruled on before trial.

Specifically, we conclude that Damron's "Objection" was ruled on before trial because the substance of the sole issue in the written objection—the inclusion of the SCRAM term—had been presented to the trial court through Damron's testimony before the objection was filed and the trial court ruled on the inclusion of that term. Although we have not found authority directly on point, we cannot agree with the trial court that under the circumstances of this case, rule 25.2(a)(2) required a further ruling that simply reiterated the trial court's position that Damron was required to pay for the SCRAM unit after the written objection was filed.⁸ See Montanez v. State, 195 S.W.3d 101, 104 (Tex. Crim. App. 2006) (explaining that a "trial court's ruling on a matter need not be expressly stated if its actions or other statements otherwise unquestionably indicate a ruling").

Our holding that Damron complied with rule 25.2(a)(2) is supported by the court of criminal appeals's statement that the rules of appellate procedure should prevent trivial issues from divesting appellate courts of jurisdiction to consider the merits of criminal cases. Few v. State, 230 S.W.3d 184, 187 (Tex. Crim. App. 2007). We should "not dismiss an appeal for a procedural defect whenever any arguable interpretation of the Rules of Appellate Procedure would preserve the appeal," and we should not divest a defendant of his or her right to appeal "by imposing requirements not absolutely necessary to effect the purpose of a rule." Id. at 189; see also Thomas v. State, 286 S.W.3d 109, 113 (Tex. App.-Houston [14th Dist.] 2009, no pet.) (citing Few and explaining that courts of appeals should construe procedural rules reasonably, yet liberally).

The State argues in its brief that Damron's "Objection" is different from a "motion" under rule 25.2(a)(2) because it was not an application for the court to rule. The "Objection" stated, "The [SCRAM condition] of the order setting community supervision . . . is unreasonable and the Defendant objects . . . ." The State has not cited (and we have not found) any authority distinguishing an "objection" and a "motion" as to the ability to establish jurisdiction under rule 25.2. In the context of this case, Damron's "Objection" obviously related to his prior verbal request that he should not be ordered to pay for the SCRAM device. "Motions" and "objections" are treated similarly in the appellate procedural rules and are defined alike. See Tex. R. App. P. 33.1(a)(1) (explaining that a complaint may be preserved through a timely "request, objection, or motion"); Black's Law Dictionary 1106, 1178 (9th ed. 2009) (defining "motion" as a "written or oral application requesting a court to make a specified ruling or order" and defining "objection" as a "formal statement opposing something that has occurred, or is about to occur, . . . and seeking the judge's immediate ruling on the point"). We hold that Damron's "Objection" qualifies as a motion under rule 25.2(a)(2).

For all of these reasons, we hold that Damron complied with rule 25.2, that his appeal is based on a written motion filed...