Opinion
06-21-00048-CR
10-14-2021
MAQUEZ DIMENSIO-PALETT JONES, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Submitted: September 9, 2021
On Appeal from the 6th District Court Red River County, Texas Trial Court No. CR02836
Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
Ralph K. Burgess Justice
The trial court revoked Maquez Dimensio-Palett Jones's community supervision on May 10, 2021. On appeal, Jones claims that the trial court erred in (1) the amount of court costs assessed and (2) imposing fees of Jones's appointed attorney during the revocation proceeding, where Jones had been found indigent. We sustain both points of error and modify the judgment. As modified, we affirm the trial court's judgment and sentence.
On August 12, 2019, Jones pled guilty to evading arrest with a motor vehicle. See Tex. Penal Code Ann. § 38.04. The trial court sentenced Jones to ten years' confinement but suspended that sentence and placed Jones on community supervision for five years and assessed a fine of $1, 000.00. On May 10, 2021, the trial court revoked Jones's supervision and sentenced him to ten years' imprisonment.
I. Attorney Fees
We begin with Jones's second point of error challenging the trial court's assessment of attorney fees. After revoking Jones's community supervision, the trial court entered judgment and a bill of costs that included reimbursement to the county for $250.00 in attorney fees for court-appointed counsel. Yet, Jones was previously found indigent by the court, counsel was appointed to represent Jones during the revocation proceeding, and the trial court made no subsequent findings that Jones's indigency status had changed.
While the clerk's record does not include an affidavit of indigency or order appointing counsel for the revocation proceeding, counsel and the trial court discussed the fact that counsel had been appointed. Also, the assessment of attorney fees is ipso facto evidence of that appointment and of Jones's indigency.
Under Article 26.05(g) of the Texas Code of Criminal Procedure, a trial court has the authority to order the reimbursement of court-appointed attorney fees only if "the judge determines that a defendant has financial resources that enable the defendant to offset in part or in whole the costs of the legal services provided . . . including any expenses and costs." Tex. Code Crim. Proc. Ann. art. 26.05(g) (Supp.). "[T]he defendant's financial resources and ability to pay are explicit critical elements in the trial court's determination of the propriety of ordering reimbursement of costs and fees" of legal services provided. Armstrong v. State, 340 S.W.3d 759, 765-66 (Tex. Crim. App. 2011) (quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)). "A defendant who is determined by the court to be indigent is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant's financial circumstances occurs." Tex. Code Crim. Proc. Ann. art. 26.04(p) (Supp.); Walker v. State, 557 S.W.3d 678, 689 (Tex. App.-Texarkana 2018, pet. ref'd). Because the trial court made no finding that Jones was able to pay the attorney fees incurred by his court-appointed counsel, the trial court erred in assessing costs for attorney fees. See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013); Martin v. State, 405 S.W.3d 944, 946-47 (Tex. App.-Texarkana 2013, no pet.).
After the revocation proceeding, Jones requested appointment of counsel for appeal, and the court granted that motion and appointed appellate counsel.
II. Court Costs and Sufficiency of the Evidence
In his first point of error, Jones complains that certain elements of the court costs included in the trial court's judgment revoking his supervision are not supported by the record. Specifically, Jones argues that the trial court's judgment revoking supervision both assessed a fine of $1, 000.00 and court costs of $1, 614.00, which included the $1, 000.00 fine. Accordingly, Jones complains that the fine was assessed against him twice. We agree with this point of error and will modify the court costs on the trial court's judgment and bill of costs accordingly.
The record demonstrates that Jones was placed on community supervision in August 2019. At that time, the trial court imposed a $1, 000.00 fine in open court. Jones agreed to pay that fine as a term and condition of his community supervision. Jones did not appeal the judgment assessing the fine. Therefore, Jones became responsible to pay the fine imposed when he was placed on community supervision. See Tex. Code Crim. Proc. Ann. art. 42.15 (Supp.), 42.16; Manuel v. State, 994 S.W.2d 658, 661 (Tex. Crim. App. 1999).
When the trial court revoked Jones's supervision in May 2021, the court lifted the suspension of Jones's sentence of ten years' imprisonment but did not state on the record that Jones would be required to pay the fine imposed two years earlier. However, the court's written judgment imposed the original fine. Ordinarily, when there is a variation or discrepancy between the written judgment and the judgment orally pronounced in court in the defendant's presence, the oral judgment controls. See Thompson v. State, 108 S.W.3d 287 (Tex. Crim. App. 2003).Yet, here, the court's written judgment revoking supervision and imposing sentence included the fine that was originally imposed in Jones's presence at the original plea proceeding. Where "[a]ll of the record evidence demonstrates that" a fine "was imposed when punishment was assessed at the original plea proceeding . . . . such fine was appropriately included in the judgment revoking probation." Coffey v. State, 979 S.W.2d 326, 329 (Tex. Crim. App. 1998).
In Thompson, the jury convicted the defendant of sexual assault of a child and indecency with a child, which were alleged in a single indictment. Thomspon, 108 S.W.3d at 289. The trial court orally sentenced Thompson to thirty years' imprisonment for the sexual assault of a child conviction but said nothing about the indecency conviction. Id. However, the court's written judgment assessed a thirty-year sentence on both counts. Id. The Court of Criminal Appeals held that the court of appeals never acquired jurisdiction over the indecency count, and, therefore, that count was properly dismissed for want of jurisdiction. Id. at 293. In Ex parte Madding, the trial court orally stated Madding's seventeen-year sentence would run concurrently with another "(unspecified) sentence." Ex parte Madding, 70 S.W.3d 131, 133 (Tex. Crim. App. 2002) (orig. proceeding). However, the court did not sign the written judgment for fifty-two days. Id. The written judgment stated that the seventeen-year sentence would run consecutively to Madding's sentence for an offense arising from another county. Id. The Court of Criminal Appeals held that Manning had a due process right to have the judgment modified to strike the order of cumulation, where it "impos[ed] a significantly harsher sentence" "without notice" to Manning and "without giving him an opportunity to be heard." Id. at 136-37.
In Coffey, as in Jones's case, at revocation, the trial court orally sentenced the defendant to prison time but did not orally re-state the fine that had been assessed when the defendant was placed on community supervision. Nevertheless, because nothing in the record suggested that the fine had been probated together with the defendant's prison sentence, the Court of Criminal Appeals held that the fine "was to be paid rather than probated." Coffey, 979 S.W.2d at 329. The "fine was imposed when punishment was assessed at the original plea proceeding," i.e., when the trial court accepted the defendant's plea and placed him on community supervision. Id.
Moreover, nothing in the record suggests that the trial court probated or suspended the fine when the court suspended Jones's sentence and placed him on community supervision at that original hearing. Rather, the terms and conditions of Jones' community supervision required him to make monthly payments toward the fine. Accordingly, the trial court properly included the $1, 000.00 fine in the judgment revoking Jones's supervision and sentencing him to the penitentiary. Nevertheless, while we find that the trial court properly included the $1, 000.00 fine that was imposed in the original plea hearing in the judgment revoking Jones's community supervision, the fine is also included in the bill of costs for the revocation. As a result, the fine was essentially imposed twice: once as a fine and again as a cost of court. Consequently, the trial court erred by including the fine in the bill of costs as a court cost.
III. Modification of the Trial Court's Judgment and Bill of Costs
"This Court has the power to correct and modify the judgment of the trial court for accuracy when the necessary data and information are part of the record." Anthony v. State, 531 S.W.3d 739, 743 (Tex. App.-Texarkana 2016, no pet.) (citing Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.-Dallas 1991, pet. ref'd)). "The authority of an appellate court to reform incorrect judgments is not dependent upon the request of any party, nor does it turn on the question of whether a party has or has not objected in the trial court." Id. (quoting Asberry, 813 S.W.2d at 529-30). Because the bill of costs in the revocation proceeding includes the fine assessed in the original plea proceeding, the judgment revoking supervision and sentencing Jones improperly assesses the $1, 000.00 fine twice. Therefore, we modify the bill of costs by deleting the fine as that entry is duplicative of the separately noted fine on the judgment. Likewise, because the bill of costs also assessed $250.00 in attorney fees without any subsequent finding that his indigency status had changed, it was error to assess attorney fees for the revocation proceeding. See Cates v. State, 402 S.W.3d 250, 251-52 (Tex. Crim. App. 2013). We delete the attorney fees from the bill of costs.
Fines are punitive, Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011), but court costs are not, Weir v. State, 278 S.W.3d 364, 366 (Tex. Crim. App. 2009).
IV. Conclusion
We modify the trial court's judgment and the bill of costs to reflect court costs of $364.00. We affirm the trial court's judgment, as modified.
The State's brief urges us to reject Jones's appeal as a collateral attack on the original plea proceeding where Jones received a suspended sentence and was placed on community supervision. We disagree with the State's assessment of Jones's argument. Jones's point of error complains, in essence, that the bill of costs and judgment erroneously "double-dipped" the fine imposed by including the fine in the court costs, where the fine also was assessed in the revocation judgment's "fine" entry. Jones does not challenge the court costs assessed at the original proceeding where Jones's sentence was suspended.