Dominick Earl Parks v. the State of Texas ( 2024 )


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  •                                      In The
    Court of Appeals
    Ninth District of Texas at Beaumont
    ________________
    NO. 09-23-00184-CR
    ________________
    DOMINICK EARL PARKS, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    ________________________________________________________________________
    On Appeal from the 1A District Court
    Tyler County, Texas
    Trial Cause No. 13,985
    ________________________________________________________________________
    MEMORANDUM OPINION
    Appellant Dominick Earl Parks (“Parks”) pleaded guilty to the third-degree
    felony offense of unlawful possession of a firearm by a felon. See 
    Tex. Penal Code Ann. § 46.04
    (a). He also pleaded true to two enhancements for prior felony
    convictions, making him a habitual offender and increasing the punishment range
    from twenty-five to ninety-nine years. See 
    id.
     § 12.42(d) (providing punishment
    range of twenty-five to ninety-nine years for habitual offenders). The trial court
    placed him on deferred adjudication community supervision. The State moved to
    1
    adjudicate after Parks violated multiple terms of his community supervision. After a
    hearing, the trial court adjudicated him guilty and orally pronounced a sentence of
    forty-five years of confinement. The trial court’s written judgment also included a
    $2,500.00 fine, court costs of $290.00, and reimbursement fees of $515.00. We will
    affirm the trial court’s judgment as modified for the reasons discussed below.
    Counsel filed a brief containing his professional evaluation that after careful
    review of the record, he could find no arguable grounds on which to appeal and
    moved to withdraw. See Anders v. California, 
    386 U.S. 738
    , 744 (1967); High v.
    State, 
    573 S.W.2d 807
    , 810 (Tex. Crim. App. 1978). After Parks’s counsel filed his
    brief, we granted an extension of time for Parks to file a pro se response. Parks has
    not responded.
    The Court of Criminal Appeals has held that we need not address the merits
    of issues raised in an Anders brief. Bledsoe v. State, 
    178 S.W.3d 824
    , 826–27 (Tex.
    Crim. App. 2005). Rather, an appellate court may determine: (1) “that the appeal is
    wholly frivolous and issue an opinion explaining that it has reviewed the record and
    finds no reversible error[;]” or (2) “that arguable grounds for appeal exist and remand
    the cause to the trial court so that new counsel may be appointed to brief the
    issues.” 
    Id.
    Upon receiving an Anders brief, a court must conduct a full examination of
    the record to determine whether the appeal is wholly frivolous. Penson v. Ohio, 
    488 U.S. 75
    , 80 (1988) (citing Anders, 
    386 U.S. at 744
    ). We have reviewed the entire
    2
    record and counsel’s brief and have found no reversible error, and we conclude the
    appeal is wholly frivolous. See Bledsoe, 178 S.W.3d at 827–28. Therefore, we find
    it unnecessary to order appointment of new counsel to re-brief the
    appeal. Cf. Stafford v. State, 
    813 S.W.2d 503
    , 511 (Tex. Crim. App. 1991).
    Modifying the Judgment
    We have the power to reform or modify a judgment in Anders cases to address
    non-reversible error and to affirm the judgment as modified. See Tex. R. App. P.
    43.2(b) (allowing appellate court to modify trial court’s judgment and affirm as
    modified); Bigley v. State, 
    865 S.W.2d 26
    , 27 (Tex. Crim. App. 1993) (noting a court
    of appeals may modify the lower court’s judgment by correcting or reforming it);
    Bray v. State, 
    179 S.W.3d 725
    , 729 (Tex. App.—Fort Worth 2005, no pet.)
    (exercising authority to reform judgment in Anders case and affirming trial court’s
    judgment). Our review of the record reveals the trial court’s judgment must be
    modified in several respects, as discussed below.
    1. Fine Not Orally Pronounced
    While the order deferring adjudication and placing Parks on community
    supervision included a fine, the trial court’s subsequent adjudication of guilt set
    aside the order deferring adjudication, including any fines or restitution. See Taylor
    v. State, 
    131 S.W.3d 497
    , 502 (Tex. Crim. App. 2004). When the trial court
    adjudicated Parks guilty, its oral pronouncement did not include the $2,500.00 fine,
    but the written judgment did. A trial court must orally pronounce a defendant’s
    3
    sentence in the defendant’s presence. See Tex. Code Crim. Proc. Ann. art. 42.03, §
    1(a); Taylor, 
    131 S.W.3d at 500
    . Fines are punishment and generally must be orally
    pronounced. See Armstrong v. State, 
    340 S.W.3d 759
    , 767 (Tex. Crim. App. 2011).
    The trial court’s oral pronouncement controls over its written judgment to the extent
    they conflict. Taylor, 
    131 S.W.3d at 502
    . We conclude that since the trial court did
    not include a fine in its oral pronouncement of Parks’s sentence at the hearing on the
    Motion to Adjudicate, it should not have included the $2,500.00 fine in the
    judgment. See Tex. Code Crim. Proc. Ann. art. 42.03, § 1(a); Armstrong, 
    340 S.W.3d at 767
    ; Taylor, 
    131 S.W.3d at 500, 502
    .
    2. Court Costs and Reimbursement Fees
    Our review of the record also reveals that the written judgment included
    $515.00 in reimbursement fees and $290.00 in court costs. The record shows the
    trial court found Parks indigent and appointed counsel. Court costs are not punitive
    and do not have to be included in the oral pronouncement as a precondition to their
    inclusion in the written judgment. Weir v. State, 
    278 S.W.3d 364
    , 367 (Tex. Crim.
    App. 2009). The imposition of court costs does not alter the punishment range, is
    authorized by statute, and is generally not conditioned on a defendant’s ability to
    pay. See Tex. Code Crim. Proc. Ann. art. 42.16; Armstrong, 
    340 S.W.3d at 767
    .
    “Only statutorily authorized court costs may be assessed against a criminal
    defendant[.]” Johnson v. State, 
    423 S.W.3d 385
    , 389 (Tex. Crim. App. 2014). Costs
    cannot be imposed “for a service not performed or for a service for which a cost is
    4
    not expressly provided by law.” Tex. Code Crim. Proc. Ann. art. 103.002. Court
    costs are supported if there is a bill of costs denominating the amount assessed and
    if those costs are authorized by statute. See 
    id.
     arts. 103.001–.002. Even so, certain
    reimbursement fees, including attorney’s fees, cannot be assessed against an indigent
    defendant unless it is subsequently determined he has financial resources to pay. See
    
    id.
     arts. 26.04(p) (a defendant determined to be indigent is presumed to remain
    indigent), 26.05(g) (providing for reimbursement of fees if the judge determines
    defendant has financial resources); Cates v. State, 
    402 S.W.3d 250
    , 252 (Tex. Crim.
    App. 2013) (concluding judgment should be reformed to remove assessment of
    attorney’s fees because there was no finding in the record an indigent defendant
    could repay costs of court-appointed counsel).
    Since the record here did not contain a bill of costs, we requested one. See
    Tex. Code Crim. Proc. Ann. art. 103.006 (requiring a bill of costs); see also Tex. R.
    App. P. 34.5(c)(1) (allowing for supplementation of clerk’s record if relevant item
    was omitted). Yet a bill of costs was not provided showing the court costs or
    reimbursement fees were statutorily authorized, so they are unsupported by the
    record. See Tex. Code Crim. Proc. Ann. arts. 103.001–.002; Johnson, 423 S.W.3d at
    389. There is also nothing in the record showing Parks’s indigent status changed, so
    to the extent the “reimbursement fees” depended upon his ability to pay, we conclude
    these are likewise unsupported by the record for that reason. See Tex. Code Crim.
    5
    Proc. Ann. arts. 26.04(p), 26.05(g); Cates, 402 S.W.3d at 252. Thus, we are
    modifying the judgment to delete the court costs and reimbursement fees.
    3. Statutory Section
    We note the written judgment recites the “Statute for Offense” as section
    “46.04(c)” of the Texas Penal Code, which concerns illegal possession of a firearm
    when a domestic violence protective order is in place. See 
    Tex. Penal Code Ann. § 46.04
    (c). Parks pleaded guilty to, and the trial court found him guilty of, the third-
    degree felony offense of unlawful possession of a firearm by a felon under section
    46.04(a). See 
    id.
     § 46.04(a). To correct this clerical error, we modify the trial court’s
    judgment to reflect the correct statute of the offense as section “46.04(a)” of the
    Texas Penal Code.
    Conclusion
    We modify the trial court’s judgment by deleting the $2,500.00 fine,
    reimbursement fees of $515.00, and court costs of $290.00. We also modify the trial
    court’s judgment to reflect the correct Penal Code section, 46.04(a). We affirm the
    trial court’s judgment as modified. See Tex. R. App. P. 43.2(b); Bigley, 
    865 S.W.2d at 27
    ; Bray, 
    179 S.W.3d at 729
    .
    AFFIRMED AS MODIFIED.
    W. SCOTT GOLEMON
    Chief Justice
    Submitted on April 17, 2024
    Opinion Delivered May 1, 2024
    Do Not Publish
    Before Golemon, C.J., Johnson and Wright, JJ.
    6
    

Document Info

Docket Number: 09-23-00184-CR

Filed Date: 5/1/2024

Precedential Status: Precedential

Modified Date: 5/3/2024