Message
×
loading..

Francisco Garcia v. the State of Texas ( 2024 )


Menu:
  • Opinion filed September 12, 2024
    In The
    Eleventh Court of Appeals
    __________
    No. 11-24-00142-CR
    __________
    FRANCISCO GARCIA, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 70th District Court
    Ector County, Texas
    Trial Court Cause No. A-20-1159-CR
    MEMORANDUM OPINION
    Appellant, Francisco Garcia, pleaded guilty to the first-degree felony offense
    of possession with intent to deliver a controlled substance in penalty group two in
    an amount of four grams or more but less than four-hundred grams. See TEX.
    HEALTH & SAFETY CODE ANN. §§ 481.103(a)(3), 481.113(a), (d) (West Supp. 2023).
    On October 19, 2020, based on the parties’ negotiated plea agreement, the trial court
    deferred finding Appellant guilty, and placed him on deferred adjudication
    community supervision for a period of four years.
    The State subsequently filed a motion to adjudicate Appellant’s guilt and to
    revoke his community supervision, then amended it, alleging that Appellant
    committed seven violations of the terms and conditions of his community
    supervision. On April 17, 2024, the trial court held a hearing on the State’s first
    amended motion, during which Appellant pleaded “true” to the violations alleged.
    The trial court accepted Appellant’s pleas of “true,” and permitted the parties to
    present evidence as to punishment. The State presented four witnesses, including
    law enforcement and Appellant’s community supervision officers. Then Appellant,
    his mother, grandfather, and stepfather testified. Upon the conclusion of the hearing,
    the trial court found the violations alleged to be “true.” The trial court adjudicated
    Appellant guilty, revoked his community supervision, and assessed Appellant’s
    punishment at confinement for forty years in the Correctional Institutions Division
    of the Texas Department of Criminal Justice. The trial court re-pronounced a $2,000
    fine, court costs, and reimbursement fees.
    Appellant’s court-appointed counsel has filed a motion to withdraw in this
    court. The motion is supported by a brief in which counsel professionally and
    conscientiously examines the record and applicable law and concludes that there are
    no arguable issues to present on appeal. Counsel provided Appellant with a copy of
    the brief, a copy of the motion to withdraw, an explanatory letter, and a copy of both
    the clerk’s record and the reporter’s record. Counsel also advised Appellant of his
    right to review the record and file a response to counsel’s brief, and of his right to
    file a petition for discretionary review. See TEX. R. APP. P. 68. As such, 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
    Schulman, 
    252 S.W.3d 403
     (Tex. Crim. App. 2008); and Stafford v. State, 
    813 S.W.2d 503
     (Tex. Crim. App. 1991).
    2
    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 with counsel that no arguable grounds for appeal exist. 1
    However, the judgment contains nonreversible errors. First, the judgment
    orders Appellant to pay a $2,050 fine, while the trial court orally pronounced a
    $2,000 fine at sentencing. The trial court was required to pronounce the sentence,
    which includes a fine, in Appellant’s presence. See TEX. CODE CRIM. PROC. ANN.
    art. 42.03 (West Supp. 2023); Taylor v. State, 
    131 S.W.3d 497
    , 500 (Tex. Crim. App.
    2004). When there is a variation between the oral pronouncement of sentence and
    the written judgment, the oral pronouncement controls. Coffey v. State, 
    979 S.W.2d 326
    , 328 (Tex. Crim. App. 1998). And because the trial court orally assessed a
    $2,000 fine against Appellant, we have the necessary information for reformation.
    See TEX. R. APP. P. 43.2(b); Bigley v. State, 
    865 S.W.2d 26
    , 27–28 (Tex. Crim. App.
    1993) (concluding that the Texas Rules of Appellate Procedure empower courts of
    appeals to reform judgments); see also Rhodes v. State, 
    676 S.W.3d 228
    , 235 (Tex.
    App.—Houston [14th Dist.] 2023, no pet.) (collecting cases). We therefore modify
    the trial court’s judgment and the district clerk’s bill of costs to reflect a $2,000 fine
    rather than a $2,050 fine. See Taylor, 
    131 S.W.3d at 502
    .
    Second, Appellant was ordered to pay court costs of $1,114.14, which
    includes a third-party collection fee of $840.21. See CRIM. PROC. art. 103.0031
    (West 2018). Article 103.0031 of the Texas Code of Criminal Procedure authorizes
    a county’s commissioners court or a municipality’s governing body to contract with
    a third party to collect unpaid fines, fees, court costs, forfeited bonds, restitution, and
    costs related to the accused’s failure to appear. 
    Id.
     art. 103.0031(a). The collection
    fee may be assessed against a defendant as part of past due amounts owed, unless
    1
    We note that Appellant has the right to file a petition for discretionary review pursuant to Rule 68
    of the Texas Rules of Appellate Procedure.
    3
    the defendant is indigent. 
    Id.
     art. 103.0031(b), (d). Here, the trial court determined
    that Appellant was indigent. As such, the trial court erroneously assessed the third-
    party collection fee against Appellant in the judgment. We modify the trial court’s
    judgment and the district clerk’s bill of costs to delete the $840.21 third-party
    collection fee from the court costs.
    Finally, the judgment imposes $1,810.36 in reimbursement fees, part of which
    is a “COMMUNITY SUPERVISION FEE (APO REIMBURSEMENT)” in the
    amount of $1,140. In accordance with our interpretation of Article 42A.652 of the
    Texas Code of Criminal Procedure, a trial court may not order a defendant to pay
    delinquent community supervision fees after the defendant’s community supervision
    has been revoked. Valverde v. State, No. 11-22-00351-CR, 
    2023 WL 5280772
    , at *2
    (Tex. App.—Eastland Aug. 17, 2023, no pet.) (mem. op., not designated for
    publication); but see Turner v. State, 
    639 S.W.3d 833
    , 838–42 (Tex. App.—Fort
    Worth 2022, pet. ref’d) (upholding the trial court’s order of community supervision
    fees in the judgment adjudicating guilt and revoking the defendant’s community
    supervision). We thus modify the trial court’s judgment and the district clerk’s bill
    of costs to reduce the reimbursement fees by $1,140.
    Accordingly, we grant counsel’s motion to withdraw, and we affirm the
    judgment of the trial court as modified.
    JOHN M. BAILEY
    CHIEF JUSTICE
    September 12, 2024
    Do not publish. See TEX. R. APP. P. 47.2(b).
    Panel consists of: Bailey, C.J.,
    Trotter, J., and Williams, J.
    4
    

Document Info

Docket Number: 11-24-00142-CR

Filed Date: 9/12/2024

Precedential Status: Precedential

Modified Date: 9/14/2024