Daymon Lamar Johns v. State
Daymon Lamar Johns v. State
Opinion
NO. 07-10-0303-CR
NO. 07-10-0304-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
AUGUST 30, 2010
______________________________
DAYMON LAMAR JOHNS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NOS. 56,483-E & 58,725-E; HONORABLE DOUGLAS R. WOODBURN, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ABATEMENT AND REMAND
In exchange for a guilty plea, in 2007, Appellant, Daymon Lamar Johns, was convicted in cause number 56,483-E of evading arrest with a vehicle and sentenced to two years confinement and a $1,000 fine.[1] Appellant's sentence was suspended in favor of five years community supervision. In 2009, in exchange for a guilty plea, in cause number 58,725-E, Appellant was granted deferred adjudication community supervision for five years for possession of a controlled substance in a drug-free zone.[2] On March 19, 2010, the State filed an Amended Motion to Revoke Order for Community Supervision in cause number 56,483-E and an Amended Motion to Proceed with Adjudication of Guilt on Original Charge in cause number 58,725-E alleging violations of the terms and conditions of community supervision. Appellant entered pleas of true in both causes and the trial court revoked community supervision and sentenced Appellant to two years in a state jail facility plus a $1,000 fine in cause number 56,483-E. The trial court also adjudicated Appellant guilty of possession of a controlled substance in a drug-free zone and sentenced him to nine years confinement and a $1,000 fine in cause number 58,725-E. The trial court ordered the sentence in cause number 56,483-E to run consecutively to the sentence in cause number 58,725-E.
When the clerks' records were filed on August 17, 2010, it came to the Court=s attention that the record in cause number 58,725-E did not contain a Trial Court=s Certification of Defendant=s Right of Appeal as required by Rule 25.2(a)(2) and (d) of the Texas Rules of Appellate Procedure and that the record in cause number 56,483-E contained two separate certifications, neither of which is signed by Appellant as required by Rule 25.2(d).[3]
Consequently, we abate this appeal and remand this cause to the trial court for further proceedings. Upon remand, the trial court shall utilize whatever means necessary to secure a proper Trial Court=s Certification of Defendant=s Right of Appeal in compliance with Rule 25.2(d) in each cause referenced herein. Once properly completed and executed, the certifications shall be included in supplemental clerks' records. See Tex. R. App. P. 34.5(c)(2). The trial court shall cause the supplemental clerks' records to be filed with the Clerk of this Court by September 29, 2010. This order constitutes notice to all parties, pursuant to Rule 37.1 of the Texas Rules of Appellate Procedure, of the defective certifications. If supplemental clerks' records containing proper certifications are not filed in accordance with this order, these causes will be referred to the Court for dismissal. See Tex. R. App. P. 25.2(d).
It is so ordered.
Per Curiam
Do not publish.
[1]Tex. Penal Code Ann. § 38.04(b)(1)(B) (Vernon Supp. 2009).
[2]Tex. Health & Safety Code Ann. § 481.134 (Vernon 2010).
[3]As of September 1, 2007, a defendant must sign and receive a copy of the certification.
ttom:0in; margin-left:.5in;margin-bottom:.0001pt;text-align:justify;mso-pagination:none'> Counsel for the defense had adequate notice. Both cause numbers were listed. Even though one was highlighted, both cause numbers were listed on the State’s Notice of Intent to Use the Prior Conviction. And the State’s position is it’s more than adequate to give that notice regardless of whether the clerk’s office managed to get it in to the file or not, but that it was done, and both cause numbers are on it.
THE COURT: Are you claiming surprise, Mr. Stangl?
MR. STANGL: I’m claiming lack of required notice, Judge.
THE COURT: Are you refusing to answer my question, Mr. Stangl?
MR. STANGL: No, Your Honor, I’m not claiming surprise. I am - - however, I am claiming lack of adequate notice.
The trial court then observed that:
[t]he original in the Court’s file in Cause No. 2008-419,678 is, in fact, highlighted in yellow, but it does bear both cause numbers. There appears to have been some clerical issue with getting the document with the Cause No. 2008-419,679 into the file in 2008-419,679. But clearly, Mr. Stangl, you’ve had notice technically or otherwise in Cause No. 2008-419,678 that the State intended to enhance the range of punishment in that case, correct?
In response to the trial court’s inquiry, the following transpired:
MR. STANGL: Judge, I mean I will acknowledge that the file marked copy that I pulled off the computer bears both cause numbers. I will acknowledge that.
THE COURT: Okay.
MR. STANGL: My objection is merely that the required notice in the other
case was not filed of record as required. I don’t know if it was a clerical error or if it was ever given to the District Clerk. I have no idea.
THE COURT: Okay.
MR. STANGL: So therein lies my objection I wasn’t given proper notice. I’m not going to say that - -
THE COURT: I understand. I understand. The objection is overruled.
From the foregoing we observe that appellant knew of the State’s intent to enhance punishment in both causes long before trial began. And, even if the notice in cause number 2008-419,679 was considered not to have been filed prior to trial, appellant nonetheless received notice before the punishment phase began. At no time did he allege surprise or that he had a defense to the use of the prior conviction. Nor did he request a continuance. Therefore, the trial court did not err in overruling his objection at trial.
Issues Two and Three – Attorney’s Fees
In his second and third issues, appellant contends the evidence is insufficient to support an award of attorney’s fees and the amount of attorney’s fees in cause number 2008-419,678. The State concedes this to be error and agrees the award of attorney’s fees should be vacated. We agree, sustain the issues and remove reference to the award of attorney’s fees from the judgment in trial court cause number 2008-419,678. See Mayer v. State, 274 S.W.3d 898, 902 (Tex. App.–Amarillo 2008), aff’d, 309 S.W.3d 552 (Tex. Crim. App. 2010) (modified the judgment to delete like order).
Accordingly, the trial court’s judgment in cause number 2008-419,679 is affirmed and the judgment in cause number 2008-419,678 is affirmed as modified.
Per Curiam
Do not publish.
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