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

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-23-00184-CR
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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
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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
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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
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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
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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
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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.
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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.
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