Larry Delton Warren v. the State of Texas

NO. 12-21-00036-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

LARRY DELTON WARREN, § APPEAL FROM THE 3RD
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS

MEMORANDUM OPINION
Larry Delton Warren, acting pro se, appeals the trial court’s order denying his motion to
rescind the court’s order to withdraw funds from his inmate trust account and reimburse funds.
Appellant’s stated issues are that (1) the evidence is legally and factually insufficient to support a
finding that the trial court “assessed and pronounced or imposed” a $2,000.00 fine against him
when he was “placed on [community supervision] and ordered executed by the trial court” or (2)
when his community supervision was revoked, and (3) that the court erred by denying the motion
in an ex parte proceeding. In his argument section, Appellant additionally argues that the court
erred by entering the withdrawal order without a prior hearing. We dismiss for want of
jurisdiction in part and affirm.

BACKGROUND
Appellant was convicted of driving while intoxicated, third offense or more, on July 3,
2008. 1 Pursuant to a plea bargain agreement, the trial court assessed his punishment at
imprisonment for ten years and a fine of $2,000.00. However, the court suspended imposition of

A third-degree felony, punishable by imprisonment for a term of not more than ten years or less than two
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years and a possible fine not to exceed $10,000.00. See TEX. PENAL CODE ANN. §§ 12.34 (West 2019), 49.04,
49.09(b)(2) (West Supp. 2021).

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the sentence and placed Appellant on community supervision for a term of ten years. As a
condition of community supervision, Appellant was ordered to pay court costs in the amount of
$297.00 and the $2,000.00 fine at the rate of $48.00 per month until paid in full.
On May 20, 2011, the trial court entered a judgment revoking Appellant’s community
supervision and imposing the ten-year prison sentence, the $2,000.00 fine, and court costs in the
amount of $297.00. On November 30, the court issued an order directing the Texas Department
of Criminal Justice to withdraw $2,297.00 from Appellant’s inmate trust account to pay for his
“court costs, fees, fines, and/or restitution[.]”
On January 14, 2020, Appellant filed a motion to rescind the withdrawal order and
reimburse funds. In the motion, he claimed that he paid $2,297.00 to the Anderson County Adult
Probation Department, and the court’s judgment revoking his community supervision assessed a
$2000.00 fine and court costs in the amount of $297.00 that were already paid in full. Appellant
stated that he received notice of the withdrawal order and a bill of costs on July 20, 2020. As of
that time, $1,667.44 had been deducted from his inmate trust account. Appellant argued that he is
entitled to reimbursement of those funds because he was “double charged” for the fine and court
costs after he paid them in full to the probation department, constituting an unlawful taking of his
property without due process. 2 He further argued that he was entitled to an additional
reimbursement of $164.00 of the court costs he paid because the “statutory law court costs upon
conviction for a felony offense is the sum of $133.00.” The court denied the motion without a
hearing. This appeal followed.

STANDARD OF REVIEW AND APPLICABLE LAW
A withdrawal notice, commonly called a “withdrawal order,” is not a final order from
which an inmate may appeal. Goodspeed v. State, 352 S.W.3d 714, 715 (Tex. App.—Texarkana
2011, pet. denied). Only when the withdrawal order is properly challenged and relief is denied is
there a final order from which the inmate may appeal. Ramirez v. State, 318 S.W.3d 906, 908
(Tex. App.—Waco 2010, no pet.).
We review a trial court’s ruling on a motion contesting a withdrawal order under an
abuse of discretion standard. Maldonado v. State, 360 S.W.3d 10, 13 (Tex. App.—Amarillo
2010, no pet.). A trial court abuses its discretion when it acts without reference to any guiding

2
See U.S. CONST. amend. XIV, § 1; TEX. CONST. art. I, § 19.

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rules and principles. Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 31 (Tex.
2010). Furthermore, a trial court abuses its discretion if it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law. Johnson v. Fourth Court of
Appeals, 700 S.W.2d 916, 917 (Tex. 1985).
An appellate court may reverse a trial court for abuse of discretion only if, after searching
the record, it is clear that the trial court’s decision was arbitrary and unreasonable. Simon v.
York Crane & Rigging Co., Inc., 739 S.W.2d 793, 795 (Tex. 1987). Hence, the party that
complains of abuse of discretion has the burden to bring forth a record showing such abuse. Id.
Absent such a record, the reviewing court must presume that the evidence before the trial judge
was adequate to support the decision. Id.

EX PARTE WITHDRAWAL ORDER
In Section (A) of Appellant’s brief, 3 he argues that the trial court erred by entering an ex
parte withdrawal order. We lack jurisdiction to address this issue because the withdrawal order
is not an appealable order. See Goodspeed, 352 S.W.3d at 715. Even if the withdrawal order
was appealable, we could not grant Appellant relief. In support of his argument, Appellant cites
In re Goad, 243 S.W.3d 858 (Tex. App.—Waco 2008, orig. proceeding). In Goad, the court of
appeals conditionally granted a writ of mandamus compelling the trial court to set aside two
apparently ex parte withdrawal orders on the grounds that the inmate was not afforded
procedural due process. See id. at 859. However, the Supreme Court of Texas has since held
that “all that due process requires [is] post-withdrawal notice and hearing.” See Harrell v. State,
286 S.W.3d 315, 321 (Tex. 2009). Specifically, the court held that “an inmate is entitled to
notice . . . via copy of the order, or other notification, from the trial court . . . and an opportunity
to be heard . . . via motion made by the inmate . . . but neither need occur before the funds are
withdrawn.” Id. Accordingly, we conclude that Appellant’s argument is without merit.

FINE PRONOUNCEMENT
In Section (B) of Appellant’s brief, which corresponds with his first and second issues, he
argues that the trial court erred by entering the withdrawal order because the fine was not
pronounced when he was placed on community supervision and, therefore, the court lacked

3
Section (A) does not correspond with any of Appellant’s stated issues.

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authority to impose the fine when his community supervision was revoked. We lack jurisdiction
to address this argument because it constitutes a challenge to the withdrawal order rather than the
court’s denial of Appellant’s motion to rescind the withdrawal order. See Goodspeed, 352
S.W.3d at 715. Furthermore, even if Appellant argued on appeal that the trial court erred by
denying his motion based on this argument, he would not prevail because he did not raise the
complaint in his motion. See TEX. R. APP. P. 33.1(a)(1) (before complaint may be presented for
appellate review, record must show it was made to trial court by timely request, objection, or
motion).
The withdrawal order is not an appealable order. See Goodspeed, 352 S.W.3d at 715.
Accordingly, we dismiss Appellant’s appeal regarding his first and second issues for want of
jurisdiction.

DENIAL OF MOTION
In Section (C) of Appellant’s brief, which in part corresponds with his third issue, he
argues that the trial court erred by denying his motion in an ex parte proceeding because his
allegations in the motion that he paid the fine and court costs before his community supervision
was revoked constitute some evidence that the fine and court costs were paid, the record contains
no evidence to the contrary, and the evidence is insufficient to support a finding that the fine was
“assessed, pronounced and called into execution on the date [he] was placed on probation.” We
disagree.
First, Appellant cites no authority, and we find none, for the proposition that an
evidentiary hearing is required when an inmate moves to rescind a withdrawal order. See TEX.
R. APP. P. 38.1(i) (requiring brief to contain clear and concise argument with appropriate
citations to authorities). To the contrary, due process is satisfied when the inmate receives notice
of the withdrawal order and “ha[s] his concerns considered by the trial court that issued [it].”
See Harrell, 286 S.W.3d at 321. Appellant neither requested an evidentiary hearing in his
motion nor does he state what evidence he would have offered at such a hearing. Under these
circumstances, we cannot conclude that the trial court abused its discretion by denying
Appellant’s motion without an evidentiary hearing.
Furthermore, Appellant has not shown that the trial court abused its discretion by its
implicit finding that he was not charged the fine and court costs twice. The record contains no

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transcript of a hearing on the motion or other evidence that Appellant paid any portion of his fine
and court costs while on community supervision. 4 Appellant’s motion is not evidence. See
Ceramic Tile Intern., Inc. v. Balusek, 137 S.W.3d 722, 725 (Tex. App.—San Antonio 2004, no
pet.) (pleadings are not evidence unless offered and admitted by trial court). Absent a record
showing that Appellant was charged his fine and court costs twice, we must presume the
evidence before the court was adequate to support its denial of Appellant’s motion. See Simon,
739 S.W.2d at 795.
Finally, Appellant has not shown that the trial court abused its discretion based on his
argument that the fine was not pronounced when he was placed on community supervision.
First, he did not raise this issue in his motion, and therefore, the issue is not preserved for our
review. See TEX. R. APP. P. 33.1(a)(1). Furthermore, even if the issue was preserved, the record
does not support Appellant’s argument. The judgment recites that “[t]he Court . . . assessed the
punishment at confinement . . . for TEN (10) YEARS and a fine of $2,000.00.” The presumption
of regularity created by recitals in a trial court’s judgment can be overcome only when the record
otherwise affirmatively reflects that error occurred. Breazeale v. State, 683 S.W.2d 446, 450
(Tex. Crim. App. 1984). The presumption of regularity requires a reviewing court, absent
evidence of impropriety, to indulge every presumption in favor of the regularity of the
proceedings and documents in the lower court. Light v. State, 15 S.W.3d 104, 107 (Tex. Crim.
App. 2000). The burden is on the appellant to overcome the presumption of regularity. Macias
v. State, 539 S.W.3d 410, 420 (Tex. App.—Houston [1st Dist.] 2017, pet. ref'd). Because we
find no indication in the record that the court did not assess the fine at the sentencing hearing, we
presume the fine was properly recited in the judgment nunc pro tunc. See Breazeale, 683
S.W.2d at 450; Light, 15 S.W.3d at 107.
For these reasons, we conclude that Appellant has not carried his burden of showing that
the trial court abused its discretion by denying his motion to rescind its withdrawal order and
reimburse funds. See Maldonado, 360 S.W.3d at 13. Accordingly, we overrule Appellant’s
third issue.

4
By our calculation, even if Appellant made every scheduled payment while on community supervision, he
would not have paid the fine and court costs in full as he alleges.

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COURT COSTS
Also in Section (C) of Appellant’s brief, 5 he argues that the trial court erred by denying
his motion to rescind the withdrawal order as it pertains to his court costs because there is no bill
of costs in the record or evidence to support a court cost assessment of $297.00, and “the
statutory amount that could be assessed was the sum of $133.00. See., Section 102.021 of the
Texas Government Code.” We disagree.
First, Section 102.021 does not impose a limit on the amount of court costs. The version
of that statute in effect at the time of Appellant’s offense states that a “person convicted of an
offense shall pay the following under the Code of Criminal Procedure, in addition to all other
costs,” and then lists various costs associated with specific offenses. See Act of June 21, 2003,
78th Leg., ch. 1278, § 1, 2003 Tex. Sess. Law Serv. 4655, 4667 (current version at TEX. GOV’T
CODE ANN. § 102.021 (West Supp. 2021). Furthermore, in Appellant’s motion to rescind, he
stated that he received a bill of costs from the trial court in 2020. Nevertheless, he did not
include it in his request for preparation of the clerk’s record. It was Appellant’s burden to bring
forth a record showing an abuse of discretion. See Simon, 739 S.W.2d at 795. Based on the
record before us, we cannot conclude that the trial court abused its discretion by denying
Appellant’s motion as it pertains to his court cost assessment.

DISPOSITION
Having dismissed Appellant’s appeal regarding his first and second issues for want of
jurisdiction and overruled his third issue, we affirm the trial court’s order denying Appellant’s
motion to rescind the withdrawal order and reimburse funds.
JAMES T. WORTHEN
Chief Justice

Opinion delivered May 18, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

5
This part of Section (C) does not correspond with any of Appellant’s stated issues.

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MAY 18, 2022

NO. 12-21-00036-CV

LARRY DELTON WARREN,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 3rd District Court
of Anderson County, Texas (Tr.Ct.No. 28994)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
trial court’s order.
It is therefore ORDERED, ADJUDGED and DECREED that the order of the
court below denying Appellant’s motion to rescind the withdrawal order and reimburse funds be
in all things affirmed, and that this decision be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

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