Fernando Hinojosa Zuniga, Jr. v. State ( 2020 )

Opinion filed December 4, 2020
In The
Eleventh Court of Appeals
___________
No. 11-20-00052-CR
___________
FERNANDO HINOJOSA ZUNIGA, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 441st District Court
Midland County, Texas
Trial Court Cause No. CR52300
MEMORANDUM OPINION
Appellant, Fernando Hinojosa Zuniga, Jr., pleaded guilty to the offense of
possession of less than one gram of a controlled substance. Pursuant to the terms of
the plea agreement, the trial court deferred a finding of guilt, placed Appellant on
community supervision for three years, and imposed a fine of $1,000. The trial court
also ordered Appellant to “[p]ay all costs of prosecution and all court costs and fees
authorized by law including court appointed attorney costs as certified by the District
Clerk in the bill of costs and/or as stated in the judgment.”
The State subsequently moved to revoke Appellant’s community supervision
and proceed with an adjudication of guilt and alleged that Appellant had committed
ten violations of the terms and conditions of his community supervision. The trial
court conducted a hearing on the motion, at which Appellant pleaded true to all but
one of the allegations contained in the State’s motion. The trial court found all of
the State’s allegations to be true, revoked Appellant’s community supervision,
adjudicated him guilty of the charged offense, and assessed his punishment at
confinement for two years in the State Jail Division of the Texas Department of
Criminal Justice. The trial court also ordered Appellant to pay “all court costs and
attorney’s fees associated with the prosecution of the State’s motion to revoke the
defendant’s community supervision as certified by the District Clerk in the bill of
costs.”
We modify the trial court’s judgment so as to delete the requirement that
Appellant pay attorney’s fees associated with the prosecution of the motion to revoke
and modify the bill of cost so as to delete the $1,000 fine and $750 of the assessed
attorney’s fees. As modified, we affirm the judgment of the trial court.
Appellant’s court-appointed counsel has filed a motion to withdraw. The
motion is supported by a brief in which counsel professionally and conscientiously
examines the record and applicable law and states that he has concluded that the
appeal is frivolous and without merit. Counsel has provided Appellant with a copy
of the brief, a copy of the motion to withdraw, an explanatory letter, and a copy of
both the reporter’s record and the clerk’s record. Counsel advised Appellant of his
right to review the record and file a response to counsel’s brief. Counsel also advised
Appellant of his right to file a pro se petition for discretionary review in order to
seek review by the Texas Court of Criminal Appeals. See TEX. R. APP. P. 68. Court-
appointed counsel has complied with the requirements of Anders v. California, 386
U.S. 738 (1967); Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014); In re
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Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); and Stafford v. State, 813 S.W.2d
503 (Tex. Crim. App. 1991).
Appellant has not filed a pro se response to counsel’s Anders brief. Following
the procedures outlined in Anders and Schulman, we have independently reviewed
the record, and we agree that the appeal is without merit. We note that proof of one
violation of the terms and conditions of community supervision is sufficient to
support revocation. Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009).
In this regard, a plea of true standing alone is sufficient to support a trial court’s
decision to revoke community supervision and proceed with an adjudication of guilt.
See Moses v. State, 590 S.W.2d 469, 470 (Tex. Crim. App. [Panel Op.] 1979).
Furthermore, absent a void judgment, issues relating to an original plea proceeding
may not be raised in a subsequent appeal from the revocation of community
supervision and adjudication of guilt. Jordan v. State, 54 S.W.3d 783, 785–86 (Tex.
Crim. App. 2001); Manuel v. State, 994 S.W.2d 658, 661–62 (Tex. Crim. App.
1999). Based upon our review of the record, we agree with counsel that no arguable
grounds for appeal exist.1
We conclude, however, that the judgment contains nonreversible errors. First,
the trial court ordered Appellant to pay “all court costs” associated with the motion
to revoke “as certified by the District Clerk in the bill of costs.” The bill of costs
reflects a fine of $1,000. However, the trial court did not mention a fine when it
assessed Appellant’s punishment and orally pronounced the sentence in open court
and did not assess a fine in the written judgment. Therefore, we modify the bill of
cost to delete the requirement that Appellant pay a $1,000 fine. See Taylor v. State,
131 S.W.3d 497, 502 (Tex. Crim. App. 2004). (“[T]he order adjudicating guilt sets
1
We note that Appellant has a right to file a petition for discretionary review pursuant to Rule 68
of the Texas Rules of Appellate Procedure.
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aside the order deferring adjudication, including the previously imposed fine.”);
Hall v. State, No. 11-19-00400-CR, 2020 WL 5241067, at *1 (Tex. App.—Eastland
Sept. 3, 2020, no pet.) (mem. op., not designated for publication) (modifying a bill
of cost so as to delete the assessment of a fine when the record showed that the trial
court did not impose a fine when it adjudicated the appellant’s guilt and assessed
punishment).
Second, the trial court ordered that Appellant was required to pay the
attorney’s fees associated with the prosecution of the motion to revoke “as certified
by the District Clerk in the bill of costs.” However, the trial court determined that
Appellant was indigent and appointed counsel to represent Appellant during the
adjudication proceedings and on appeal. Because the trial court determined that
Appellant was indigent and because nothing in the record demonstrates that he was
able to pay all or part of his attorney’s fees, attorney’s fees cannot be assessed against
Appellant as court costs. See Mayer v. State, 309 S.W.3d 552, 555–56 (Tex. Crim.
App. 2010); Jackson v. State, 562 S.W.3d 717, 723 (Tex. App.—Amarillo 2018, no
pet.).
The bill of cost reflects a cost of $1,500 for “reimbursement attorney fees.”
The evidence during the adjudication proceeding established that Appellant was
required to pay $750 for attorney’s fees incurred in connection with the original plea
that resulted in the trial court deferring the adjudication of Appellant’s guilt.
Appellant has waived any complaint about the assessment of those fees. See Riles v.
State, 452 S.W.3d 333, 337 (Tex. Crim. App. 2015) (holding that the appellant
procedurally defaulted any complaint about attorney’s fees assessed in connection
with the initial order of deferred adjudication because he failed to raise the issue in
a direct appeal from that order). However, we delete from the bill of cost the
assessment of $750 for attorney’s fees incurred during the adjudication proceedings.
See Winegeart v. State, No. 11-19-00299-CR, 2020 WL 1294616, at *2 (Tex.
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App.—Eastland Mar. 19, 2020, pet. ref’d) (mem. op., not designated for publication)
(modifying bill of cost to delete assessment of attorney’s fees).
We grant counsel’s motion to withdraw; modify the judgment so as to delete
the requirement that Appellant pay attorney’s fees incurred in connection with the
prosecution of the motion to adjudicate; modify the bill of cost so as to delete the
$1,000 fine and $750 of the assessed attorney’s fees; and, as modified, affirm the
judgment of the trial court.
PER CURIAM
December 4, 2020
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Wright, S.C.J.2
Willson, J., not participating.
2
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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