Document Info

DocketNumber: 02-18-00176-CR

Filed Date: 7/18/2019

Status: Precedential

Modified Date: 7/20/2019

  •                     In the
    Court of Appeals
    Second Appellate District of Texas
    at Fort Worth
    ___________________________
    No. 02-18-00176-CR
    ___________________________
    KENDRA PHILLIANA MAXION, Appellant
    V.
    THE STATE OF TEXAS
    On Appeal from the 297th District Court
    Tarrant County, Texas
    Trial Court No. 1398848D
    Before the En Banc Court
    Memorandum Opinion by Justice Birdwell
    Justices Pittman and Bassel dissent and concur without opinion.
    MEMORANDUM OPINION ON EN BANC RECONSIDERATION
    As we did in an unrelated appeal with the same issue––Kitchen v. State, No. 02-
    18-00374-CR, 
    2019 WL 30698761
    , at *1–2 (Tex. App.––Fort Worth July 15, 2019, no
    pet. h.) (op. on en banc reconsideration)––we have granted en banc reconsideration in
    this appeal. See Tex. R. App. P. 41.2(c), 49.7. In this appeal, a majority of the en banc
    court holds that Kendra Philliana Maxion raised only the following two complaints in
    her sole point on appeal: (1) that probation fees owed to a community supervision
    and corrections department cannot be assessed as reparations in a judgment
    adjudicating guilt or revoking probation and (2) that $15 of the total reparations
    assessed in her judgment of conviction should be deleted for lack of support in the
    record. Because the record does not support $15 of the $555 assessed as reparations,
    we delete that $15 from the judgment and affirm the judgment as modified.
    Background
    On June 16, 2015, the trial court placed Maxion on five years’ deferred-
    adjudication community supervision for the third degree felony of evading arrest. See
    Tex. Penal Code Ann. § 38.04(b)(2)(A). The judgment assessed court costs of $289
    “PAYABLE TO AND THROUGH THE CRIMINAL DISTRICT CLERK’S
    OFFICE OF TARRANT COUNTY, TEXAS,” but assessed no fine, no restitution,
    and no other charges or fees. As a condition of community supervision, the trial court
    required Maxion to pay $60 “each month during the period of supervision” to the
    Tarrant County Community Supervision and Corrections Department, beginning on
    2
    July 15, 2015. The trial court did not require Maxion to pay the $289 in court costs as
    a condition of community supervision.
    The State eventually filed seven petitions seeking to adjudicate Maxion guilty of
    the original offense; the sixth amended petition filed in December 20171 alleged that
    Maxion had violated eight conditions of her community supervision, none of which
    dealt with whether she had paid her community supervision fees. The trial court held
    a hearing on March 28, 2018, at which the State waived several of the alleged
    violations and Maxion pleaded true to the remaining violations. The trial court
    accepted Maxion’s pleas of true, adjudicated her guilty of the original offense, and
    sentenced her to six years’ imprisonment.
    The trial judge signed a judgment on April 3, 2018. The judgment shows court
    costs of “$0.00,” lists “N/A” for a fine and restitution, and orders Maxion to pay
    $555       in   reparations.   The   record       contains   an   unsigned   “Revocation
    Restitution/Reparation Balance Sheet,” also dated April 3, 2018, from the
    Community Supervision and Corrections Department of Tarrant County. The balance
    sheet shows that the $555 in reparations consists of $540 in probation fees and $15 in
    unspecified fees “DUE TO CSCD.” The record also contains (1) a Bill of Cost from
    the Tarrant County District Clerk certifying that “$0.00 . . . is a correct account of the
    The State filed its original petition to adjudicate on March 23, 2016. Thus,
    1
    Maxion was obligated to pay nine months’ of probation fees for July 2015 through
    March 2016.
    3
    Court Costs adjudged against” Maxion “up to 3/28/2018,” and (2) an unsigned “List
    of Fee Breakdowns” from the Tarrant County District Clerk dated April 3, 2018,
    showing that Maxion had been charged and paid $314 in court costs but also showing
    “0.00” for both “Probation Fees Remaining” and “Due to CSCD Remaining.”
    Maxion appealed from the judgment adjudicating her guilt, but in her brief, she
    challenges only the trial court’s assessment of reparations in the judgment.
    Record Does Not Support $15 of the Total Reparations
    Maxion’s sole point on appeal states, “The trial court violated Appellant’s right
    to due process when it imposed money ‘Due to CSCD’ and probation fees as
    ‘reparations’ in the judgment of conviction.” Her due process argument regarding
    probation fees is identical to Kitchen’s argument: it is a general complaint that
    probation fees cannot be included in the legal or dictionary definition of reparations,
    and Maxion never complains that the record contains no evidentiary basis for the
    amount of probation fees assessed. See Kitchen, 
    2019 WL 3069871
    , at *2. Accordingly,
    we conclude that Maxion’s point does not fairly include as a subsidiary issue the
    argument that the $540 in probation fees assessed as reparations does not have a basis
    in the record. See 
    id. Having repeatedly
    rejected the identical due process argument regarding
    whether probation fees may be assessed as reparations, we overrule that part of
    Maxion’s point. See id.; 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
    
    4 WL 742087
    , at *2 (Tex. App.—Fort Worth Feb. 25, 2016, pet. ref’d) (mem. op., not
    designated for publication).
    But unlike the appellant in Kitchen, Maxion also argues as part of her point that
    “[t]he reparations which consist of money ‘Due to CSCD’ are not supported by the
    record” and asks us to delete that part of the reparations for that reason. She cites our
    opinion in Lewis v. State, in which we struck reparations based on amounts “Due to
    CSCD” because the record was not clear where the amounts came from. 
    423 S.W.3d 451
    , 461 (Tex. App.––Fort Worth 2013, pet. ref’d). In Maxion’s argument, she asserts,
    “What ‘Due to CSCD’ represents or how such a cryptic allegation can be
    controverted turns the concept of due process on its head.” We therefore conclude
    that her point does include a complaint that there is no basis in the record for the $15
    attributable only to administrative financial obligations “DUE TO CSCD.” See id.; see
    also Demerson v. State, No. 02-18-00003-CR, 
    2018 WL 3580893
    , at *3 (Tex. App.—Fort
    Worth July 26, 2018, no pet.) (mem. op., not designated for publication) (collecting
    cases from this court deleting fees “Due to CSCD”). We therefore sustain the
    remaining part of Maxion’s sole point that challenges the basis for only $15 of the
    total reparations amount.
    Conclusion
    Having determined that $15 of the reparations included in the judgment––
    represented in the balance sheet as being “DUE TO CSCD”––has no basis in the
    record and sustaining the part of Maxion’s point raising that complaint, we strike $15
    5
    of the $555 assessed as reparations in the judgment and modify the judgment to assess
    reparations of only $540. We likewise modify the order of withdrawal of funds
    incorporated into the judgment by reference so that it authorizes the withdrawal of
    only $540. Having overruled the rest of Maxion’s sole point, we affirm the trial court’s
    judgment as modified.
    /s/ Wade Birdwell
    Wade Birdwell
    Justice
    Do Not Publish
    Tex. R. App. P. 47.2(b)
    Delivered: July 18, 2019
    6