Aaron John Lewis Jr. v. State , 2013 Tex. App. LEXIS 14288 ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00088-CR
NO. 02-12-00089-CR
AARON JOHN LEWIS JR. APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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OPINION
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Introduction
Appellant Aaron John Lewis Jr. challenges fines and costs related to his
revoked deferred-adjudication community supervision and attendant convictions
for aggravated assault with a deadly weapon and burglary of a habitation. We
modify the judgments and affirm.
Background Facts and Procedural History
In 2010, Appellant negotiated guilty pleas to burglary of a habitation and
aggravated assault with a deadly weapon. On September 7 of that year, the trial
court admonished Appellant in writing that if it followed the plea-bargain
agreement, Appellant would have to obtain the trial court’s permission before
appealing on any matter in the case, except for matters raised by written motion
and filed before trial. The trial court further admonished Appellant that it seldom
consents to appeals in cases involving guilty pleas. Page 6 of the trial court’s
written plea admonishments is entitled “WRITTEN WAIVER OF DEFENDANT--
JOINED BY ATTORNEY.” Item “O” on page 7, which Appellant signed, states, “I
give up and waive any and all rights of appeal in this case[.]”
Appellant pled guilty, the trial court accepted his pleas, and followed the
plea bargains, deferring its findings of guilt and placing Appellant on six years’
deferred-adjudication community supervision. The docket sheets indicate that
the conditions of community supervision, filed the date of Appellant’s guilty plea,
were served on Appellant in open court. The conditions of community
supervision instruct Appellant to pay “ATTORNEY FEES in the amount of
$725.00.” The last page of the conditions bears Appellant’s signature and
fingerprints below a line that reads, “I have received my conditions of community
supervision.”
2
The trial court signed the orders of deferred adjudication on September 15,
2010. The order in the aggravated-assault case, cause 1201632D, includes the
following “special findings or orders:”
FINE IN THE AMOUNT OF $600.00, ATTORNEY FEES IN THE
AMOUNT OF $725.00, AND COURT COSTS IN THE AMOUNT OF
$274.00, PAYABLE TO AND THROUGH THE CRIMINAL DISTRICT
CLERK’S OFFICE OF TARRANT COUNTY, TEXAS
Similarly, in the burglary case, cause 1201653D, the deferred-adjudication order
includes the following “special findings or orders:”
FINE IN THE AMOUNT OF $600.00, AND COURT COSTS IN THE
AMOUNT OF $274.00, PAYABLE TO AND THROUGH THE
CRIMINAL DISTRICT CLERK’S OFFICE OF TARRANT COUNTY,
TEXAS
The trial court certified that both cases involved plea bargains and that Appellant
had no right of appeal. Appellant did not file a notice of appeal from either of the
deferred-adjudication orders.
In 2012, the State petitioned the trial court to adjudicate Appellant’s guilt
and revoke his community supervision, alleging that he had violated several of its
conditions. At a hearing on the State’s petition, Appellant pled “true” to eight of
the State’s allegations. The trial court adjudicated Appellant’s guilt for both
offenses, revoked his community supervision, and sentenced him to ten years’
confinement in each case, to run concurrently.
The trial court’s written judgment adjudicating Appellant’s guilt in the
aggravated assault case includes the following “special findings or orders:”
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REPARATIONS IN THE AMOUNT OF $2,306.00.
....
APPOINTED ATTORNEY FEES IN THE AMOUNT OF $1,725.00
PAYABLE TO AND THROUGH THE DISTRICT CLERK’S OFFICE
OF TARRANT COUNTY, TX ORDERED AS A CONDITION OF
PAROLE UNDER ARTICLE 26.05(g) T.C.C.P.
The clerk’s record includes a balance sheet evidently prepared by the
community-supervision department that breaks down the $2,306.00 listed as
reparations into the following four items: (1) “FINES [$]561.00,” (2) “DUE TO
CSCD $20.00,” (3) “ATTY FEES 1 [$]725.00,” and (4) “ATTY FEES 2
[$]1,000.00,” for a total amount of “[$]2,306.00.”
The judgment adjudicating guilt in the burglary case likewise recites as a
“special finding or order” “REPARATIONS IN THE AMOUNT OF $1,607.00.” It,
too, is accompanied in the clerk’s record by a balance sheet evidently prepared
by the community-supervision department itemizing this amount into: (1) “FINES
[$]600.00,” (2) “DUE TO CSCD $150.00,” and (3) “PROBATION FEES $920.00,”
for a total of “[$]1,670.00.”
After revoking Appellant’s community supervision and adjudicating his guilt
in the two cases, the trial court certified that Appellant had the right to appeal the
judgments adjudicating guilt. See Tex. R. App. P. 25.2(d). Appellant exercised
that right and presents five issues on appeal.
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Issue 1––Attorney Fees in the Aggravated-Assault Case
In his first issue, Appellant contends that the trial court erred by ordering
him to repay court-appointed-attorney fees in the aggravated-assault case. He
asserts that the recitation in the judgment adjudicating guilt that ordered the
repayment is erroneous in two ways: (1) the clause ordering repayment “AS A
CONDITION OF PAROLE UNDER ARTICLE 26.05(g) T.C.C.P.” is incorrect
because article 26.05(g) does not grant trial courts authority to affect the
conditions of parole; and (2) nothing in the record shows that Appellant––whom
the trial court had determined was indigent––was able to pay for any of his court-
appointed attorney’s legal services.
While the first argument may not dispose of Appellant’s main issue, it is
well taken. Article 26.05 of the code of criminal procedure is entitled
“Compensation of Counsel Appointed to Defend.” Subsection (g) provides
the following:
If the court determines that a defendant has financial resources that
enable him to offset in part or in whole the costs of the legal services
provided, including any expenses and costs, the court shall order the
defendant to pay during the pendency of the charges or, if convicted,
as court costs the amount that it finds the defendant is able to pay.
Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2013). Although the
statute’s express language grants trial courts authority to order repayment of
costs incurred for legal services, it does not grant them any authority to affect
conditions of parole. We therefore sustain part of Appellant’s first issue and
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strike from the judgment in cause 1201632D the clause “ORDERED AS A
CONDITION OF PAROLE UNDER ARTICLE 26.05(g) T.C.C.P.”
The crux of Appellant’s first issue remains, however: that is, whether the
trial court properly ordered repayment of attorney fees in the first place. Both
Appellant and the State correctly point out that once a trial court makes a finding
that a defendant is indigent, absent evidence of a substantial change in the
defendant’s financial circumstances, the defendant is presumed to remain
indigent for the remainder of the proceedings. Tex. Code Crim. Proc. Ann. art.
26.04(p) (West Supp. 2013); Wiley v. State, No. PD-1728-12, 2013 WL 5337093,
at *2 (Tex. Crim. App. Sept. 25, 2013); Mayer v. State, 309 S.W.3d 552, 557
(Tex. Crim. App. 2010). Appellant argues that because the trial court found him
indigent not just once, but thrice––with no evidence in the record that his
circumstances had improved since the last finding––the presumption stands.
The State agrees that attorney fees ordered after the trial court adjudicated
Appellant’s guilt should be deleted because there is no evidence in the record
that Appellant could pay them. Those fees amount to $1,000.00. 1 Accordingly,
1
The parties agree that the trial court ordered Appellant to pay $725.00 in
attorney fees at the time it deferred adjudication and placed him on community
supervision. They both refer to the amount the trial court ordered Appellant to
pay when it adjudicated his guilt and revoked his community supervision as an
additional “$1,100.00” and they agree that this “$1,100.00” should be deleted.
After comparing the deferred-adjudication order against the judgment
adjudicating guilt, however, we conclude that the parties have overstated the
amount by $100.00. This overstatement appears to originate from a comma
mistaken for a “1” on a balance sheet supplied by the probation department. The
former is followed by three zeroes, not two, before the decimal point, as it would
6
we sustain part of Appellant’s first issue and modify the judgment to reflect a
reduction of $1,000.00 from the amount originally ordered repaid as appointed
attorney fees.
The State maintains, however, that Appellant is still liable for $725.00––the
amount the trial court assessed at the time it originally ordered deferred
adjudication––because Appellant forfeited his right to complain about any
attorney fees incurred up to that point. The State argues that although the trial
court found Appellant indigent at the time––and, presumptively, he still is––
Appellant should have objected to the imposition of these fees when they were
imposed. Because he did not, the State asserts, he has forfeited his right to
complain about those fees on appeal.
The State relies on Speth v. State, 6 S.W.3d 530, 534 (Tex. Crim. App.
1999), cert. denied, 529 U.S. 1088 (2000), in which the court of criminal appeals
held that a probationer who does not object to a condition of community
supervision at the time it is imposed forfeits any complaint about that condition on
appeal. The State also cites a couple of unpublished court of appeals cases––
one from our sister court in Waco and one from ours––that applied Speth to
attorney fees imposed as conditions of community supervision. See Price v.
State, No. 10-10-00303-CR, 2012 WL 1435168, at *2 (Tex. App.––Waco Apr. 25,
have to be if the amount was $1,100.00. In any case, the deferred-adjudication
order assesses $725.00 in attorney fees, and the judgment assesses $1,725.00.
The difference between those two is $1000.00, not $1,100.00.
7
2012, no pet.) (mem. op., not designated for publication); Jackson v. State, No.
02-09-00258-CR, 2010 WL 5186811, at *5 (Tex. App.––Fort Worth Dec. 23,
2010, no pet.) (mem. op., not designated for publication).
We agree with the State that Appellant has forfeited his claim related to the
attorney fees that the trial court’s deferred-adjudication orders instructed him to
repay. But an opinion issued by the court of criminal appeals after the State filed
its brief in this case precludes us from endorsing the State’s position that the
reason Appellant forfeited his complaint is because he failed to object to a
condition of his community supervision as required by Speth.
The courts of appeals had split on the issue of whether a probationer, once
found indigent and then ordered to repay attorney fees accruing at the time of the
community-supervision order, procedurally defaulted a claim that the evidence
was insufficient to support the repayment of those fees by failing to object to the
obligation at the time the trial court ordered community supervision. See Wiley,
2013 WL 5337093, at *2. Various courts of appeals had held that this kind of
sufficiency claim could be forfeited in one or both of two ways. Id. at *3. The first
would occur when a defendant failed to object to the imposition of attorney fees
as a condition of community supervision at the time community supervision was
ordered. Id.; Mathis v. State, 397 S.W.3d 332, 341 (Tex. App.––Dallas 2013,
pet. granted); Reyes v. State, 324 S.W.3d 865, 867–68 (Tex. App.––Amarillo
2010, no pet.); Jackson, 2010 WL 5186811, at *5. The second would occur––
whether or not the defendant had objected in the trial court––when he failed to
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raise a sufficiency claim on appeal immediately following the community
supervision order but waited, instead, to raise it for the first time on appeal from a
subsequent order revoking community supervision. See Vargas v. State, Nos.
05-12-00334-CR, 05-12-00335-CR, 05-12-00336-CR, 2013 WL 3717768, at *2
(Tex. App.––Dallas July 12, 2013, no pet.) (mem. op., not designated for
publication); Wolfe v. State, 377 S.W.3d 141, 149 (Tex. App.––Amarillo 2012, no
pet.) (Campbell, J., concurring & dissenting); see also Manuel v. State, 994
S.W.2d 658, 661–62 (Tex. Crim. App. 1999) (holding that defendant placed on
deferred-adjudication probation may raise issues relating to original plea
proceeding, such as evidentiary sufficiency, only in appeals taken when deferred
adjudication is first imposed).
The court of criminal appeals has expressly rejected the first way in favor
of the second. In Wiley v. State, the trial court assessed $400.00 in attorney fees
when it ordered community supervision, and then another $400.00 when it
revoked it. Wiley, 2013 WL 5337093, at *2. On appeal from the revocation, the
Waco Court of Appeals determined that complaints about “the assessment of
attorney’s fees as a condition of supervision must be raised at the time the
condition was imposed.” Id. Accordingly, it upheld the $400.00 portion of the
fees assessed as costs of court-appointed representation during the original plea
proceedings. Id. While recognizing the split among the courts of appeals as to
whether an appellant can raise complaints about attorney fees imposed at the
time of community supervision in a later appeal from the revocation of that
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community supervision, the Waco court adhered to its reasoning in a prior
opinion and held that Wiley had procedurally defaulted his claim by not objecting
to the attorney fees when they were initially assessed at sentencing. Id.
After granting review, the court of criminal appeals affirmed, holding that
the lower court had correctly found procedural default but for the wrong reason.
Id. at *3. In other words, it held that although the appellant had forfeited his claim
that the evidence was insufficient to support the order that he repay attorney
fees, he did not do so by failing to preserve it with an objection in the trial court,
but rather because he failed to bring the issue in a direct appeal from the order
originally imposing community supervision. Id.
The court of criminal appeals noted that the record showed that Wiley “was
well aware of the existence and the amount of the attorney fees that were
imposed for his court appointed representation during the plea proceedings,” and
that he waived his right to appeal “knowingly with respect to any possible claim
that the record did not support the assessment of attorney fees.” Id. at *5. The
court of criminal appeals also pointed out that “[t]he bill of costs was dated the
same day as the judgment imposing community supervision and was, by the
terms of the judgment itself—as indicated in bold capital letters—attached” to the
judgment. Id. Further, it noted that “[b]y his signature, the appellant expressly
acknowledged having read and understood the conditions of community
supervision.” Id. The court of criminal appeals concluded that Wiley “was aware
of the requirement that he pay court costs, including the cost of court appointed
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attorney fees, even as of the time he signed the judgment” and that “[h]e would
therefore have known to challenge the sufficiency of the evidence to support this
requirement as of the time of any direct appeal from that judgment.” Id. Instead
of doing so, however, he “waived his right to appeal, though not required to do so
by the terms of any negotiation with the State.” Id.
The court of criminal appeals appears to have based its conclusion that
Wiley knowingly waived his claim on the following facts:
• The trial court admonished Wiley that he would not be allowed to
appeal without permission if the trial court followed the plea bargain,
which it did. Id. at *1.
• The written judgment included a sub-heading entitled “Court Costs,”
and all attorney fees, which included $400.00 for the court-appointed
attorney during the plea proceedings, were set out in a bill of costs
attached to the judgment. Id.
• In a declaration that Wiley signed that appears on the last page of
the judgment next to his thumbprint, he acknowledged that “ʻ[t]he
terms and conditions set forth in this probation order have been read
and explained to me on [the day they were imposed] and I
understand them.ʼ” Id.
• On that same day, he also executed an express written waiver of
appeal. Id.
• In open court, when the trial court noted that Wiley and his attorney
had signed a waiver of appeal and asked him if that is what he
wished to do, Wiley replied, “ʻYes, sir.ʼ” Id. at *1 n.5.
• Wiley did not pursue an appeal from the order placing him on
community supervision between the time it was ordered and the time
it was revoked. Id. at *1–2.
• The day after revocation, a new bill of costs was printed out that
itemized the total court costs. It listed the attorney fees at $800.00,
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which included the unpaid $400.00 balance for the attorney who had
provided representation when the trial court initially ordered
community supervision, plus an additional $400.00 for the attorney
who represented Wiley during the revocation proceeding. Id. at *2.
• Wiley appealed following the trial court’s revocation of his community
supervision, and complained for the first time that the evidence was
insufficient to support the assessment of both sets of attorney fees.
Id.
• The State conceded that the evidence was insufficient to support the
trial court’s order that Wiley pay all of the attorney fees. Id.
The facts in our case are similar but not identical:
• On September 7, 2010, the trial court admonished Appellant in
writing that if it followed a plea-bargain agreement, Appellant would
have to obtain the trial court’s permission before appealing on any
matter in the case, except for matters raised by written motion and
filed before trial.
• The trial court further admonished Appellant in writing on that date
that it seldom consents to appeals in cases involving guilty pleas.
• On page 6 of the trial court’s written plea admonishments is a
document entitled “WRITTEN WAIVER OF DEFENDANT--JOINED
BY ATTORNEY.” Item “O” on the next page, which is signed by
Appellant, states, “I give up and waive any and all rights of appeal in
this case[.]”
• Appellant pled guilty and the trial court followed the plea-bargain
agreement.
• The conditions of Appellant’s community supervision, filed the date
of the plea, September 7, 2010, and bearing Appellant’s signature
and fingerprints near a line stating “I have received my conditions of
community supervision,” instruct Appellant to pay “ATTORNEY
FEES in the amount of $725.00.”
• The order of deferred adjudication, signed by the trial court on
September 15, 2010, eight days after Appellant’s plea, includes as a
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“special finding[ ] or order[ ] . . . ATTORNEY FEES IN THE
AMOUNT OF $725.00.”
• The trial court certified that the case involved a plea bargain and that
Appellant had no right of appeal.
Although one could read the opinion to hold that Wiley forfeited his claim
by failing to bring it on direct appeal from the community supervision order, we
think the case turns more precisely on Wiley’s knowing waiver of the right to
appeal than on his failure to bring a claim on direct appeal from a community
supervision order. The court of criminal appeals observed that the record “shows
that the appellant was well aware of the existence and the amount of attorney
fees that were imposed for his court appointed representation.” Id. at *5. And
the court noted that the trial court admonished Wiley “that, should it follow the
plea bargain, [he] would not be allowed to appeal without the trial court’s
permission.” Id. at *1; see Tex. R. App. P. 25.2(2)(B). If an appellant is barred
from bringing an appeal by rule 25.2(2)(B), in the first place, it makes little sense
to say that he forfeits his claim by not bringing it on appeal.
The gist of the court of criminal appeals’ holding that Wiley had forfeited
his claim for review appears to turn on evidence in the record that he waived his
right to appeal and pled guilty knowing the amount of the fees and knowing that
he would be required to pay them. Although these factors may be less stoutly
supported in the record in this case than they were in Wiley, we think the record
before us does show that at the time Appellant was placed on community
supervision, he was sufficiently aware of the fees that had accrued and the
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requirement that he pay them but nonetheless knowingly chose to forego appeal.
Regarding the first two factors, by his signature, Appellant acknowledged having
received the conditions of his community supervision, which included a
requirement that he pay $725.00 in attorney fees. As observed by the court of
criminal appeals in Wiley, the reimbursement of attorney fees is not imposed only
as a condition of community supervision; but, on authority of article 26.05(g) of
the code of criminal procedure, the judgment independently imposed an
obligation to repay attorney fees “as court costs.” See Tex. Code Crim. Proc.
Ann. art. 26.05(g); 2 Wiley, 2013 WL 5337093, at *4. Appellant has not claimed
that his counsel did not know of this provision; nor has he claimed counsel failed
to advise him that before the trial court could require that he offset costs of his
court-appointed legal services it had to find that Appellant’s financial
circumstances had changed since the indigency finding. Had this requirement
been a deal-breaker, Appellant could have chosen not to forego his right to
appeal and plead guilty. Instead, the record shows that Appellant expressly
waived the right to appeal from the order placing him on deferred adjudication.
2
The article provides:
If the court determines that a defendant has financial resources that
enable him to offset in part or in whole the costs of the legal services
provided, including any expenses and costs, the court shall order the
defendant to pay during the pendency of the charges or, if convicted,
as court costs the amount that it finds the defendant is able to pay.
Tex. Code Crim. Proc. Ann. art. 26.05(g).
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Because the record shows that Appellant knew at the time he was placed
on community supervision that he would be required to repay the $725.00 in
attorney fees that had accrued and nonetheless expressly waived his right to
appeal, we are constrained by Wiley to hold that Appellant has forfeited this part
of his claim for review. See Wiley, 2013 WL 5337093, at *5. Accordingly, we
overrule the remainder of Appellant’s first issue.
Issue 2––Fines in Both Cases
In his second issue, Appellant contends that the portions of the reparations
designated as fines should be deleted from both judgments because the trial
court did not orally pronounce any fines when it pronounced sentence in open
court. The State agrees. So do we.
Fines are part of a sentence and therefore must be orally pronounced in
open court in order to be valid. Taylor v. State, 131 S.W.3d 497, 500, 502 (Tex.
Crim. App. 2004) (holding that fines pronounced upon deferred adjudication do
not survive revocation of community supervision unless orally pronounced). The
record shows that the trial court did not orally pronounce a fine in open court in
either of Appellant’s cases. Nor does either judgment specifically assess a fine
on its face. To the contrary, below the space designated for “Fine” on each
judgment appear the letters “N/A.”
Fines were apparently intended, however, to make up part of the amounts
ordered as “reparations.” The judgment in cause 1201632D recites as a special
condition or order “REPARATIONS IN THE AMOUNT OF $2,306.00.” The
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balance sheet evidently prepared by the community supervision department
breaks this amount into four parts, one of which is listed as “FINES [$]561.00.”
The judgment in cause 1201653D recites as a special condition or order
“REPARATIONS IN THE AMOUNT OF $1,670.00.” It, too, is accompanied in the
clerk’s record by a balance sheet evidently prepared by the community
supervision department that itemizes this amount into three parts, one of which is
listed as “FINES [$]600.00.”
But, again, no fine was pronounced by the trial court in open court.
Therefore, we sustain Appellant’s second issue, and modify the judgments to
subtract $561.00 from the amount listed as reparations in cause 1201632D and
$600.00 from the amount listed as reparations in cause 1201653D. See Abron v.
State, 997 S.W.2d 281, 282 (Tex. App.––Dallas 1998, pet. ref’d) (modifying
judgment to delete fine after trial court revoked probation but failed to orally
pronounce fine as part of sentence); see also Washington v. State, No. 02-11-
00152-CR, 2012 WL 1345743, at *2 (Tex. App.––Fort Worth Apr. 19, 2012, no
pet.) (mem. op., not designated for publication) (same); Boyd v. State, No. 02-11-
00035-CR, 2012 WL 1345751, at *2 (Tex. App.––Fort Worth Apr. 19, 2012, no
pet.) (mem. op., not designated for publication) (same).
Issue 3––Community-Supervision Fees in the Burglary Case
One of the conditions of Appellant’s community supervision required him to
pay $60.00 each month during the probationary term. At the adjudication
hearing, Appellant pled true to the State’s allegation that he had failed to pay this
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fee for ten months and he now concedes that he owed $600.00 in probation fees
at the time he had his community supervision revoked and was adjudicated. The
judgment adjudicating guilt indicates that he owes reparations of $1,670.00. The
balance sheet in the clerk’s record breaks this amount into three parts. One of
those parts, which we consider for purposes of this third issue, lists $920.00 in
probation fees.
Appellant contends that the $920.00 figure––and consequently, the
$1,670.00 reparation amount listed on the judgment––is high by $320.00. He
urges us, then, to modify the judgment to show a reduction by that amount. The
State agrees that the judgment should be modified, but by only $300.00, not
$320.00. The State asserts that the $20.00 difference is actually properly
assessed as a Crime Stoppers Reward Fee, which is authorized by the
government code. 3
When Appellant was originally placed on deferred-adjudication community
supervision on September 7, 2010, he was ordered to pay a crime stoppers fee
within 30 days of the order. Although the State alleged in its petition to
adjudicate that Appellant failed to pay the $60.00 probation fee from March 2011
through December 2011, it did not allege that he failed to pay any $20.00 crime-
3
The government code provides that a defendant “shall pay the following
fees and costs under the Code of Criminal Procedure if ordered by the court or
otherwise required: . . . payment to a crime stoppers organization as condition of
community supervision . . . not to exceed $50[.]” Tex. Gov’t Code Ann. §
103.021(6) (West 2013).
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stoppers fee. Nor is there any evidence in the record that Appellant failed to pay
it: no one testified at the adjudication hearing that Appellant did not pay it, and
no evidence of any kind was offered or admitted showing that he did not pay it.
Now, the State alleges in its brief that he failed to pay it.
But the State appears to be guessing, as indicated in its response to
Appellant’s fifth issue regarding a claim against an amount allegedly “due to
CSCD,” where the State writes, “This fee is presumably the $20 crime stopper
fee Appellant was ordered to pay as a condition of probation.” [Emphasis
added.] As Appellant points out, in response to one of his claims the State
argues that the crime stoppers fee is part of “probation fees” and in another that it
is part of the amount “due to CSCD.”
We are not persuaded by these inconsistent arguments, particularly when
combined with little or nothing in the record to support the judgment amount.
Allegations of probation violations must be proven in the trial court by a
preponderance of the evidence. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim.
App. 1993). The State did not allege in the trial court that Appellant violated the
terms of his community supervision by not paying the crime-stoppers fee, the
State did not prove he did not pay it, and the trial court did not so find.
Accordingly, we hold that the record does not support the judgment’s ordering
reparations in the amount of $1,670.00. We sustain Appellant’s third issue and
modify the judgment to strike $320.00 from the stated amount of reparations
owed in cause 1201653D.
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Issue 4––Court Costs in the Aggravated-Assault Case
Appellant contends in his fourth issue that the trial court erred at the
adjudication hearing by increasing the original amount of court costs Appellant
was required to pay by $25.00. When the trial court placed Appellant on
deferred-adjudication community supervision, it ordered him to pay $274.00 in
court costs but when it adjudicated his guilt, the amount jumped to $299.00.
Nothing in the record supports this $25.00 increase and the State admits that it
should be struck. Therefore, we sustain Appellant’s fourth issue and modify the
judgment in cause 1201632D to reflect court costs of $274.00 instead of
$299.00. See Boyd, 2012 WL 1345751, at *2.
Issue 5––“Due to CSCD” in Both Causes
In his fifth issue, Appellant challenges $20.00 listed on the balance sheet
in cause 1201632D and $150.00 listed on the balance sheet in cause 1201653D
that are identified as a part of reparations “Due to CSCD.” We are unable to
determine from the record what these figures represent or whether they were
included as part of the original conditions of Appellant’s community supervision.
The State concedes that the $150.00 amount should be deleted but contends
that the $20.00 “is presumably the $20[.00] crime stopper fee Appellant was
ordered to pay as a condition of probation.” As we have stated above in
disposing of Appellant’s third issue, the record is not clear as to where this
amount comes from and we are disinclined to speculate about where the trial
court found it. We therefore sustain Appellant’s fifth issue and strike from the
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reparations ordered in cause 1201632D the $20.00 and from cause 1201653D
the $150.00 identified as “Due to CSCD.” See id.
Conclusion
Cause 1201632D
We modify the trial court’s judgment adjudicating guilt as follows:
• Having overruled in part and sustained in part Appellant’s first issue, we
subtract $1000.00 from the amount ordered repaid as appointed attorney
fees and affirm the trial court’s order that Appellant repay attorney fees
incurred at the time he was placed on probation in the amount of $725.00,
and we strike from the judgment the language indicating that attorney fees
are “ORDERED AS A CONDITION OF PAROLE UNDER ARTICLE 26.05
(g).”
• Having sustained Appellant’s second issue, we delete from the reparations
amount recited in the judgment $561.00 that was identified as a fine.
• Having sustained Appellant’s fourth issue, we modify the judgment to
reflect court costs of $274.00 instead of $299.00.
• Having sustained Appellant’s fifth issue, we strike from the reparations
recited in the judgment $20.00 identified as “Due to CSCD.”
Accordingly, we modify the judgment to reflect a change in the total
amount of reparations owed from $2,306.00 to $725.00. That $725.00 is ordered
repaid as appointed attorney fees payable to and through the District Clerk’s
Office of Tarrant County, Texas. We affirm the judgment in cause 1201632D as
modified.
Cause 1201653D
Having sustained Appellant’s second, third and fifth issues, we delete from
the reparations amount recited in the judgment $600.00 that was identified as a
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fine; $320.00 that was identified as probation fees; and $150.00 identified as
“Due to CSCD.” Accordingly, we modify the judgment to reflect a change in the
total amount of reparations owed from $1,670.00 to $600.00, and we affirm the
judgment in cause 1201653D as modified.
ANNE GARDNER
JUSTICE
PANEL: GARDNER, MCCOY, and MEIER, JJ.
PUBLISH
DELIVERED: November 21, 2013
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