Zachary Auguste Kitchen v. State ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00374-CR
___________________________
ZACHARY AUGUSTE KITCHEN, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court No. 1478907D
Before Pittman, Birdwell, and Bassel, JJ.
Memorandum Opinion on Rehearing by Justice Bassel
Birdwell, J., dissents from the part of this court’s judgment that deletes the reparations
award, for the reasons articulated by Gabriel, J., in her dissenting and concurring
memorandum opinion on rehearing in Maxion v. State, No. 02-18-00176-CR, but
concurs in the remainder of the judgment. Gabriel, J., although not a panel member,
joins Birdwell, J., in accordance with Tex. R. App. P. 47.5.
MEMORANDUM OPINION ON REHEARING
On December 31, 2018, this court issued an opinion modifying the trial court’s
judgment to delete $420 in reparations that were not supported by the record. The
State filed a motion for rehearing and a motion for en banc reconsideration
contending that the language we used in reaching our holding intimated that the State
was required to plead or allege the failure to pay probation fees as a ground in its
petition to proceed to adjudication in order to recover such fees and asserting that the
record is sufficient to support the reparations ordered by the trial court. We deny the
State’s motion for rehearing but withdraw our prior opinion and judgment dated
December 31, 2018, and substitute the following opinion and judgment. We dismiss
the State’s motion for en banc reconsideration as moot.
I. Introduction
In a single point, Appellant Zachary Auguste Kitchen challenges the
reparations ordered in the judgment adjudicating his guilt. Because the record does
not support the reparations, we delete them from the order to withdraw funds and
from the judgment and affirm the judgment as modified.
II. Background
In August 2017, the trial court placed Kitchen on nine years’ deferred-
adjudication community supervision. See Tex. Penal Code Ann. § 22.04(f). Kitchen’s
conditions of community supervision required him to pay a supervision fee of $60
monthly beginning September 15, 2017. In December 2017, the State filed a petition
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to proceed to adjudication, alleging that Kitchen had violated five conditions of his
community supervision. On July 3, 2018, the trial court held a hearing at which the
State waived paragraph two of its petition, and Kitchen pleaded “true” to the violation
listed in paragraph one of the State’s petition. The trial court accepted Kitchen’s plea
of “true” to paragraph one and also found paragraphs three through five to be true,
adjudicated him guilty of the original offense of injury to a child causing bodily injury,
and sentenced him to ten years’ imprisonment. The judgment orders Kitchen to pay
reparations in the amount of $420.
III. Reparations Not Supported by the Record
In his sole point on appeal, Kitchen argues that the trial court violated his right
to due process when it imposed probation fees as reparations in the judgment.1
Kitchen challenges that reparations can be defined broadly enough to include
probation fees. We have repeatedly rejected this argument, and we decline to
reexamine the argument here. 2 See Zamarripa v. State, 506 S.W.3d 715, 716 (Tex.
App.—Fort Worth 2016, pet. ref’d); Tucker v. State, Nos. 02-15-00265-CR, 02-15-
00266-CR, 2016 WL 742087, at *2 (Tex. App.—Fort Worth Feb. 25, 2016, pet. ref’d)
(mem. op., not designated for publication).
Kitchen’s brief also argues that the trial court should not have imposed money
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“Due to CSCD” as reparations. Because the record does not reflect that any money
“Due to CSCD” was imposed as reparations, we need not address this argument.
2
Kitchen’s brief acknowledges that this court has held contrary to his argument.
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Because the statement of an issue is treated as covering every subsidiary
question that is fairly included, we broadly construe Kitchen’s argument to also
challenge the trial court’s imposition of probation fees. See generally Tex. R. App. P.
38.1(f) (stating rule on issues presented in briefs). The code of criminal procedure
provides that “a judge who grants community supervision to a defendant shall set a
fee of not less than $25 and not more than $60 to be paid each month during the
period of community supervision by the defendant.” Tex. Code Crim. Proc. Ann. art.
42A.652(a). The code of criminal procedure also mandates that when a person is
required to pay a cost, that cost must be documented by a bill. See id. art. 103.001(b).
The fact that the charge for community supervision is described as a fee rather than as
a cost does not except it from the requirement of including it on a written bill. Cf.
Beard v. State, Nos. 09-13-00391-CR, 09-13-00392-CR, 2013 WL 6705981, at *2 (Tex.
App.—Beaumont Dec. 18, 2013, no pet.) (mem. op., not designated for publication)
(treating administrative fee that is assessed for an individual’s failure to pay the
monthly community supervision fee as a cost subject to the requirements of article
103.001); cf. also Ireland v. State, No. 03-14-00615-CR, 2015 WL 4914732, at *1 (Tex.
App.—Austin Aug. 12, 2015, no pet.) (mem. op., not designated for publication)
(discussing administrative transaction fee established by article 102.072 as a court
cost).
A record is sufficient to support a requirement to pay owed probation fees as
reparations when it contains an uncontradicted, unobjected-to CSCD balance sheet
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showing the arrearage. See Smith v. State, Nos. 02-16-00412-CR, 02-16-00413-CR,
2017 WL 2276751, at *4 (Tex. App.—Fort Worth May 25, 2017, pet. ref’d) (mem. op.,
not designated for publication). The Texas Court of Criminal Appeals has noted that
although a bill of costs is not required to support a judgment for costs, “it is the most
expedient, and therefore, preferable method.” Johnson v. State, 423 S.W.3d 385, 396
(Tex. Crim. App. 2014); see Steen v. State, No. 02-13-00559-CR, 2014 WL 4243702, at
*2 (Tex. App.—Fort Worth Aug. 28, 2014, pet. ref’d) (mem. op., not designated for
publication) (applying Johnson to probation fees assessed in bill of costs). Accordingly,
this court has previously relied on the bill of costs or an uncontradicted CSCD
balance sheet or both—when they reflect the same amount—to determine the
amount of probation fees due, as exemplified in the following cases.
A. Summary of Prior Holdings 3
In Steen, we held that the certified bill of costs, showing that the appellant owed
$2,507 in community-supervision fees at the time of the revocation hearing was
“enough to support inclusion in the judgment of $2,507 in statutorily-authorized,
community-supervision fees.” 2014 WL 4243702, at *2. In that case, the record also
included a CSCD balance sheet showing fees “DUE TO CSCD” of $137 and
probation fees of $2,370 for total reparations of $2,507.
In Tucker, we held that “[t]he amount of the community supervision fees owed
were supplied by the Balance Sheet and the Certified Bill of Costs, both of which are
3
Each of the following cases dealt with reparations assessed in Tarrant County.
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part of the record. This is sufficient evidence to support the amount of $120 in
community supervision fees assessed as reparations.” 2016 WL 742087, at *2
In Taylor v. State, both the bill of costs and the CSCD balance sheet reflected
that the appellant owed $135 in reparations, and only the list of fee breakdowns
showed that there was $0 in probation fees remaining. No. 02-15-00425-CR, 2016
WL 3159156, at *5 (Tex. App.—Fort Worth June 2, 2016, pet. ref’d) (mem. op., not
designated for publication). We looked at the three documents collectively in the light
most favorable to the award of reparations and held that the certified bill of costs and
the CSCD balance sheet “qualif[ied] as sufficient evidence to support the
reparations.” Id.
Similarly, in Zamarripa, we held that “the $292 in community supervision fees
appearing on the balance sheet and on the certified bill of costs support[ed] the award
of $292 in community supervisions fees listed as reparations in the trial court’s
judgment” and disregarded the list of fee breakdowns that showed $0 for probation
fees remaining. 506 S.W.3d at 716–17.
In Smith, we held that “in the absence of contradicting evidence showing that
appellant did not owe the reparations or had already paid them, the CSCD balance
sheet contained in the record is sufficient to support the reparations.” 2017 WL
2276751, at *3 (footnote omitted). The record, however, reflects that the bill of costs
did not list any probation fees, that the CSCD balance sheet reflected probation fees
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of $1,085 as reparations, and that the list of fee breakdowns reflected $0 in probation
fees remaining.
In Hill v. State, the record contained contradictory documents showing that the
appellant owed probation fees of either $1,605 (the CSCD balance sheet) or $0 (the
bill of costs did not list any and the list of fee breakdowns reflected $0), and the State
conceded that there was no evidence or any finding in the record that the appellant
had failed to pay $1,605 in probation fees. No. 02-17-00088-CR, 2017 WL 3821898,
at *1 (Tex. App.—Fort Worth Aug. 31, 2017, no pet.) (mem. op., not designated for
publication). We agreed and deleted the reparations.
In Riojas v. State, we relied solely on the CSCD balance sheet and did not
mention the bill of costs, which was part of the record and did not list any
outstanding probation fees. No. 02-18-00026-CR, 2018 WL 3580897, at *2 (Tex.
App.—Fort Worth July 26, 2018, no pet.) (mem. op., not designated for publication).
Utilizing the terms from the appellant’s conditions of community supervision, we
multiplied the $60 monthly fee times the eight months that had elapsed between when
the trial court placed the appellant on deferred-adjudication community supervision
and when it revoked his community supervision. Id. That amount—$480—matched
the amount shown on the CSCD balance sheet. Id. Accordingly, we held that the
record supported the $480 portion of the reparations ordered for probation fees. Id.
In Ayala v. State, we relied on the CSCD balance sheet instead of the list of fee
breakdowns but recalculated the probation fees because the State conceded that it had
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charged the appellant for one extra month. No. 02-17-00385-CR, 2018 WL 2727954,
at *1 (Tex. App.—Fort Worth June 7, 2018, no pet.) (mem. op., not designated for
publication). The opinion does not mention the bill of costs, which was included in
the record but did not list probation fees.
B. Analysis
Here, the July 3, 2018 certified bill of costs, which is attached to this opinion as
Appendix A, shows total costs of $0. The CSCD balance sheet, which was prepared
one week later on July 10 and is attached to this opinion as Appendix B, shows $420
in probation fees. The “List of Fee Breakdowns,” which was prepared on July 11 and
is attached to this opinion as Appendix C, shows that Kitchen owed $0 in probation
fees. On the face of these documents, there is a contradiction in the amount of
probation fees that remain outstanding.
In its motion for rehearing, the State attempts to explain away any
contradiction as follows:
While the District Clerk’s certified bill of costs and “List of Fee
Breakdowns” do not show that Appellant owed probation fees at that
time, these documents are not inconsistent and do not present
contradictory evidence. All of these documents, together, demonstrate
that on July 3, 2018, the day of Appellant’s adjudication, no additional
costs had been assessed when the Certified Bill of Costs was created.
Then, on July 10, 2018, the Community Supervision and Corrections
Department calculated Appellant’s probation fees arrears at $420.00 and
converted them to Reparations. Finally, when the district clerk pulled
the records and created the List of Fee Breakdowns, on July 11, 2018,
the remaining balance on probation fees was “$0.00” because, at that
time, Appellant no longer owed probation fees but owed reparations.
And the District Clerk’s List of Fee Breakdowns makes no reference to
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reparations. In short, the Certified Bill of Cost, the District Clerk’s List
of Fee Breakdowns[,] and the CSCD Balance Sheet, considered together,
confirm that Appellant owed probation fees. [Record references and
footnotes omitted.]
This explanation of the procedure for how and when probation fees were converted
to reparations is not, however, in the record. Nor does it explain why the total
reparations were not listed on the bill of costs.4
Moreover, even if we assume that the above procedure was utilized and that
the probation fees were converted to reparations, neither we nor the State can
calculate the amount of outstanding probation fees. The State in its motion for
rehearing states that Kitchen’s total exposure for probation fees was $600, which was
calculated by multiplying $60 per month times the ten months (from September 15,
2017 through June 15, 2018) that he was on probation. But the amount of
outstanding probation fees shown on the CSCD balance sheet is $420. The State
concludes,
4
We note that the records from prior Tarrant County cases have listed
reparations on the bill of costs. See Zamarripa, 506 S.W.3d at 717 (mentioning that
community supervision fees were shown on the certified bill of costs; record reflects
that the bill of costs lists the fee as “Reparation (Probation Fees)”); Taylor, 2016 WL
3159156, at *5 (same); Tucker, 2016 WL 742087, at *2 (same); Steen, 2014 WL
4243702, at *2 (stating that “[t]he certified bill of cost, included in the record of this
case, show[ed that] Appellant owed $2,507 in community-supervision fees”; record
reflects that the bill of costs lists the fee as “Reparation (Probation Fees)”); Strange v.
State, No. 02-14-00055-CR, 2014 WL 3868225 (Tex. App.—Fort Worth Aug. 7, 2014,
no pet.) (mem. op., not designated for publication) (although not stated in the opinion
because the State conceded error, the record contains a bill of costs reflecting
“Reparation (Probation Fees)” of $443).
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While there is no specific evidence regarding what months Appellant did
or did not pay, this document supports that Appellant owed $420 in
probation fees because he did not pay off the entire $600 owed.
In short, the evidence was sufficient to support the trial court’s
order for reparations. [Record references omitted.]
The State thus concedes that the amount of probation fees remaining cannot be
calculated based on the record before us and that instead of calculating the amount,
we are to rely on a single-line gross accounting entry that has no supporting detail.5
As set forth above, we have no case from this court in which a contradiction
between the CSCD balance sheet and the bill of costs was highlighted and in which
we chose to rely solely on the CSCD balance sheet for the amount of probation fees
remaining. Nor have we relied solely on the CSCD balance sheet without being able
to recalculate the amount shown or the amount conceded by the State.
Because the CSCD balance sheet is contradicted by the bill of costs and
because the amount shown on the CSCD balance sheet cannot be recalculated, we
conclude that the record does not support the amount of probation fees assessed as
reparations. See Hill, 2017 WL 3821898, at *1. Accordingly, we sustain Kitchen’s sole
point.
While we agree with the State that the existence of administrative documents
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in the record can be sufficient evidence to support an order for reparation, the
administrative documents in the record in this case are insufficient to show that
“there is a basis for the cost.” See Johnson, 423 S.W.3d at 390. And unlike Zamarripa,
which the State urges us to rely on, we do not have a certified bill of costs that
matches the CSCD balance sheet. 506 S.W.3d at 716.
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IV. Conclusion
Having sustained Kitchen’s sole point challenging the reparations ordered in
the judgment, we delete $420 from the order to withdraw funds so that it reflects that
$0 should be withdrawn from Kitchen’s inmate trust account, and we delete the line
in the judgment that states, “REPARATIONS IN THE AMOUNT OF $420.” See id.
(striking reparations when the only evidence of probation fees was contradictory).
We also note that the judgment of adjudication contains nonreversible clerical
errors. The trial court attempted to correct these errors in a judgment nunc pro tunc,
but that document also contains clerical errors. The judgment adjudicating guilt
states, “While on community supervision, Defendant violated the terms and
conditions of community supervision as set out in the State’s ORIGINAL Motion to
Adjudicate Guilt as attached: PARAGRAPHS ONE, TWO, THREE[,] AND
FOUR.” The judgment nunc pro tunc states, “While on community supervision,
Defendant violated the terms and conditions of community supervision as set out in
the State’s ORIGINAL Motion to Adjudicate Guilt as attached: PARAGRAPHS
THREE, FOUR, AND FIVE.” As set forth above, the record from the adjudication
hearing reflects that the trial court accepted Kitchen’s plea of “true” to paragraph one
and also found paragraphs three through five to be true. This court has authority to
modify incorrect judgments when the necessary information is available to do so. See
Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993).
Because the necessary information is available here, we modify the judgment nunc pro
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tunc to state, “While on community supervision, Defendant violated the terms and
conditions of community supervision as set out in the State’s ORIGINAL Motion to
Adjudicate Guilt as attached: PARAGRAPHS ONE, THREE, FOUR, AND FIVE.”
See Norris v. State, No. 06-16-00151-CR, 2017 WL 1536200, at *1 (Tex. App.—
Texarkana Apr. 27, 2017, pet. ref’d) (mem. op., not designated for publication)
(modifying judgment nunc pro tunc that contained clerical error); Wiley v. State,
No. 03-14-00563-CR, 2015 WL 3453891, at *2 (Tex. App.—Austin May 27, 2015, no
pet.) (mem. op., not designated for publication) (modifying judgment adjudicating
guilt to correctly identify the paragraphs of the State’s motion to adjudicate that the
trial court found appellant had violated).
As modified, we affirm the trial court’s judgment adjudicating guilt and the
judgment nunc pro tunc.
/s/ Dabney Bassel
Dabney Bassel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: April 4, 2019
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Appendix A
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Appendix B
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Appendix C
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