Summary
declining to address appellant's challenges to ten of nineteen grounds for revocation when appellant had pleaded true to other nine allegations
Summary of this case from LaBoy v. StateOpinion
NO. 03-15-00539-CR
03-17-2016
Matthew Diaz, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
NO. 72269, HONORABLE FANCY H. JEZEK, JUDGE PRESIDINGMEMORANDUM OPINION
Matthew Diaz was charged with the offense of aggravated robbery. See Tex. Penal Code §§ 29.02(a) (setting out elements of robbery), .03(a) (outlining offense of aggravated robbery). The State and Diaz entered into a plea agreement in which Diaz agreed to plead guilty to the alleged offense in exchange for the State agreeing to recommend that Diaz's adjudication of guilt be deferred and that Diaz be placed on community supervision for ten years. In accordance with that agreement, Diaz pleaded guilty to the offense, and the district court deferred his adjudication and placed him on community supervision for ten years. Approximately one year after the district court issued its order of deferred adjudication, the State filed a motion to adjudicate alleging nineteen violations of Diaz's conditions of community supervision. In response, Diaz entered pleas of true to all of the allegations in a hearing and filed a written stipulation in which he judicially confessed that all of the State's allegations were true. At a hearing, the district court found all of the allegations in the State's motion to adjudicate to be true, found Diaz guilty of the offense of aggravated robbery, and sentenced Diaz to five years' imprisonment. See id. §§ 29.03(b) (providing that aggravated robbery is first-degree felony), 12.32 (setting out permissible punishment range for first-degree felony). The district court's judgment adjudicating guilt reflects that Diaz used a deadly weapon, specifically a firearm, during the offense. See id. § 1.07(a)(17) (defining "[d]eadly weapon" as including firearms). In three issues on appeal, Diaz contends that his punishment should be reversed and that he should be re-sentenced because the district court did not make the required findings regarding some of his alleged community-supervision violations and because the State did not meet its burden of proving some of the violations, that the deadly-weapon finding should be deleted, and that the district court erred by imposing court costs that were too high. We will affirm the district court's judgment adjudicating Diaz's guilt.
DISCUSSION
Findings and the State's Burden
In his first issue on appeal, Diaz asserts that his due-process rights were violated when the district court assessed his sentence because the assessment was "based in part on ten 'violations' of community supervision where either the trial court did not conduct the required hearing, or the State did not meet its burden." For those reasons, Diaz asks this Court to reverse his punishment and remand the case to the district court so that he may be re-sentenced.
When presenting this issue on appeal, Diaz limits his attack to the ten violations alleging that Diaz had been financially delinquent in some form. Regarding nine of the violations, Diaz contends that those violations qualify under the Code of Criminal Procedure as failures to pay court costs, costs of legal services, or community-supervision fees but urges that the Code requires that the State prove that he was able to pay those fees but did not before those failures can be used as grounds to revoke community supervision. Specifically, Diaz highlights the following language from the Code:
In a community supervision revocation hearing at which it is alleged only that the defendant violated the conditions of community supervision by failing to pay community supervision fees or court costs or by failing to pay the costs of legal services as described by Section 11(a)(11), the state must prove by a preponderance of the evidence that the defendant was able to pay and did not pay as ordered by the judge.Tex. Code Crim. Proc. art. 42.12, § 21(c); see also Brown v. State, 354 S.W.3d 518, 520 n.3 (Tex. App.—Fort Worth 2011, pet. ref'd) (explaining that although statute uses word "only," application of statute is not limited to circumstances in which State alleges nothing other than monetary violations). Although Diaz acknowledges that he pleaded true to the nine alleged violations, he asserts that his plea "did not establish that he was able to pay but did not pay" and that the "State put on no evidence tending to show that Diaz had the ability to pay but chose not to."
Turning to the last of the ten attacked violations, Diaz notes that the State alleged that he violated the terms of his community supervision by failing to pay a "$1,500.00 Fine" and that he was "delinquent $180.00." Further, Diaz highlights that the provision of the Code of Criminal Procedure generally pertaining to the failure to pay a fine provides that a trial court "may not order a defendant confined" for the failure to pay a fine "unless the court at a hearing makes a written determination that . . . the defendant is not indigent and has failed to make a good faith effort to discharge the fines and costs" or that "the defendant is indigent and . . . failed to make a good faith effort to discharge the fines . . . and . . . could have discharged the fines . . . without experiencing any undue hardship." Tex. Code Crim. Proc. art. 43.03(d). After referring to this provision, Diaz notes that the district court did determine that he was indigent when it appointed him counsel for the revocation proceeding but that the clerk's record "does not contain any sort of written determination that the trial court found" that he failed "to make a good faith effort to discharge the fine and costs."
After urging that the State failed to meet its burden for nine violations and that the district court did not make the required findings regarding his alleged failure to pay the fine, Diaz asserts that the district court imposed his sentence "based in part on a finding that ten alleged 'violations' were true, when in fact these ten allegations should not have been considered violations." For that reason, Diaz contends that his due process rights were violated.
As support for his assertion that the case should be remanded for a new punishment hearing, Diaz principally relies on United States v. Tucker, 404 U.S. 443 (1972). In Tucker the defendant was sentenced to 25 years' imprisonment based in part on his prior felony convictions. Id. at 444. After the defendant was sentenced, a court determined that two of his three prior felony convictions were invalid. Id. at 444-45. When affirming a lower court's decision to remand the case for re-sentencing in light of the fact that his prior felony convictions had been invalidated, the Supreme Court explained that "if the trial judge . . . had been aware of the constitutional infirmity of two of the previous convictions, the factual circumstances of the respondent's background would have appeared in a dramatically different light at the sentencing proceeding." Id. at 448.
We believe that Diaz's reliance on Tucker is misplaced. Tucker did not involve a situation in which a defendant's community supervision was revoked for failure to comply with the terms of his community supervision. Moreover, Diaz pleaded true to all of the alleged violations that he asserts on appeal were improper. In addition, as discussed more thoroughly above, Diaz pleaded true to other alleged violations that he does not challenge on appeal. See Jones v. State, 472 S.W.3d 322, 324 (Tex. App.—Eastland 2015, pet. ref'd) (mem. op.) (explaining that when multiple grounds for revocation are alleged, proof that one ground was satisfied suffices to revoke community supervision and adjudicate a defendant's guilt). Finally, we note that the fact that Diaz was given the minimum sentence for a firstdegree felony (five years) when he was convicted, see Tex. Penal Code § 12.32, undermines Diaz's assertion that the district court was somehow impermissibly swayed by the number of alleged communitysupervision violations, see Atchison v. State, 124 S.W.3d 755, 759 (Tex. App.—Austin 2003, pet. ref'd) (finding that there was no evidence that trial court violated defendant's dueprocess rights by reflexively imposing sentence).
The issue presented by Diaz seems to be a fusion of complaints regarding whether his due-process rights were violated and whether the evidence supporting the district court's order is sufficient to warrant revocation. To the extent that Diaz is asserting a due-process challenge, we note that one of our sister courts addressed a similar issue recently. See Gipson v. State, 395 S.W.3d 910 (Tex. App.—Beaumont 2013), rev'd on other grounds by 428 S.W.3d 107, 109 & n.6 (Tex. Crim. App. 2014) (reversing determination that section 21(c) of article 42.12 of Code of Criminal Procedure applied to fines but expressing no opinion on ruling regarding constitutional complaint). In Gipson, Gipson alleged "that the trial court committed constitutional error by revoking his community supervision based solely on his plea of 'true' to the failure to pay court-assessed fees without first inquiring about the reasons for Gipson's failure to pay," which allegedly "resulted in a denial of due process." Id. at 915. In addressing this issue, the appellate court determined that the right "to have the court inquire into a defendant's ability to pay" is "the type of procedural due process right that must be brought to the court's attention" in order to preserve the issue for appeal. Id. at 916. Moreover, the court noted that the record did "not indicate that Gipson complained to the trial court that revocation of his community supervision and imposition of a prison sentence would violate due process." Id. Accordingly, the court determined that Gipson's issue was "not preserved for appellate review and" overruled the issue. Id.; see Rogers v. State, 640 S.W.2d 248, 263-64 (Tex. Crim. App. 1982) (explaining that due-process complaints are generally not preserved for appeal if defendant does not make due-process objection at time of revocation); see also Tex. R. App. P. 33.1(a) (stating that to preserve error for appeal, record must show that complaint was made to trial court and that trial court ruled on request or refused to rule and that "complaining party objected to the refusal").
We agree with the reasoning of our sister court. In this case, nothing in the record indicates that Diaz made his due-process claims at the time of the revocation. Accordingly, we must conclude that this claim was not preserved for appellate review.
We now turn to Diaz's assertion that the evidence was insufficient to support the district court's revocation of community supervision and adjudication of guilt. Appellate courts review a decision to adjudicate guilt in the same way that courts review a community-supervision revocation in which the adjudication of guilt was not deferred. Tex. Code Crim. Proc. art. 42.12, § 5(b); Leonard v. State, 385 S.W.3d 570, 573 n.1 (Tex. Crim. App. 2012) (explaining that adjudication hearings are subset of revocation hearings). A trial court's decision to revoke community supervision is reviewed under an abuse-of-discretion standard of review. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). Under that standard, a trial court's ruling will only be deemed an abuse of discretion if it is so clearly wrong as to lie outside "the zone of reasonable disagreement," Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002), or is "arbitrary or unreasonable," State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005).
An order that revokes community supervision must be supported by a preponderance of the evidence, Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984), and appellate courts review the evidence presented during the hearing in the light most favorable to the trial court's ruling, Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981). "A plea of true, standing alone, is sufficient to support the revocation of community supervision and adjudicate guilt," Tapia v. State, 462 S.W.3d 29, 31 n.2 (Tex. Crim. App. 2015), and the violation of a single condition of community supervision is sufficient to support a revocation determination, Jones v. State, 472 S.W.3d 322, 324 (Tex. App.—Eastland 2015, pet. ref'd) (mem. op.). Accordingly, "to prevail on appeal, the defendant must successfully challenge all of the findings that support the" trial court's "revocation order." Silber v. State, 371 S.W.3d 605, 611 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
As set out above, in this issue, Diaz limits his challenges to ten of the nineteen grounds for revocation and asserts that those ten were improper because the State failed to meet its burden of proof regarding those bases or because the district court failed to make a required determination pertaining to his alleged failure to pay a fine. However, the State also alleged nine other bases for revocation that did not involve financial delinquencies, including the alleged use of controlled substances, the failure to "obtain drug/alcohol screening and/or testing and counseling," as well as the failure to report to his community-supervision officer, and Diaz pleaded true to all nine of those alleged violations. Accordingly, we must conclude that the district court did not abuse its discretion when it revoked Diaz's community supervision and adjudicated his guilt. See Patterson v. State, No. 05-13-01567-CR, 2015 Tex. App. LEXIS 753, at *4 (Tex. App.—Dallas Jan. 28, 2015, no pet.) (mem. op., not designated for publication) (concluding that because defendant had entered plea of true to revocation ground that "had nothing to do with [his] ability to pay," it was unnecessary to reach defendant's claims that it was improper to revoke his community supervision on ground that he did not pay community-supervision fees when his failure to pay was not willful).
For all of the reasons previously given, we overrule Diaz's first issue on appeal.
Deadly Weapon Finding
In his second issue on appeal, Diaz asserts that the district court's judgment of conviction "should be corrected to delete the deadly weapon finding" "because the trial court did not make an express deadly weapon finding at the time it adjudicated Diaz's guilt." When presenting this issue, Diaz refers to the following portion of the punishment hearing where the district court announced its sentence and highlights that there was no mention of a deadly weapon:
Mr. Diaz, at this time I'm finding that the allegations in the State's Motion to Adjudicate are true. I'm finding you guilty of the felony offense of aggravated robbery.
It's the judgment of the court, sir, that you serve five years in the Institutional Division of the Texas Department of Criminal Justice.
I'll also order that you pay all court costs in this case.
The court of criminal appeals confronted a similar issue in Ex parte Huskins, 176 S.W.3d 818 (Tex. Crim. App. 2005). In Huskins, the trial court deferred Huskin's adjudication of guilt and placed him on community supervision, but the State moved to adjudicate his guilt a few years later. Id. at 819. During the hearing on the adjudication of guilt, the trial court "orally sentenced him to eight years' imprisonment . . . but did not announce a deadly-weapon finding. In the written judgment and sentence, however, the trial court included an affirmative deadly-weapon finding." Id. Like Diaz, Huskins asserted that the trial court's inclusion of a deadly-weapon finding without having pronounced that during the hearing was error. See id.
In addressing Huskins's arguments, the court of criminal appeals noted that "a defendant is entitled to notice that the state intends to seek an affirmative deadly-weapon finding" but explained that "[t]he language in the indictment may provide sufficient notice if it alleges use of a deadly weapon." See id. at 820. Further, the court explained that the indictment alleged that Huskins used a deadly weapon (a firearm) during the offense, which provided Huskins with "sufficient notice that the state would seek an affirmative" deadly-weapon finding. Id. Moreover, the court explained that Huskins pleaded guilty to the offense before he was placed on deferred adjudication and, therefore, confessed that he committed the charged offense. Id. In addition, the court reasoned that when the trial court admonished Huskins and then accepted the plea, the trial court "necessarily determined that applicant used a deadly weapon in the commission of the offense." Id. Also, although the court of criminal appeals acknowledged that "the oral pronouncement" of judgment controls "when the oral pronouncement of the sentence and the written judgment differ," the court explained "that the expectation of having the oral pronouncement match the written judgment applies only to sentencing issues, such as the term of confinement assessed and whether multiple sentences will be served concurrently or consecutively," and that a "deadly-weapon finding . . . is not part of the sentence" even though it may affect "a defendant's eligibility for probation and parole" because "it does not alter the range of punishment to which the defendant is subject[] or the number of years assessed." Id. at 820-21. Accordingly, the court of criminal appeals concluded that "a trial court is not required to orally announce a deadly-weapon finding at sentencing if the allegation of use of a deadly weapon is clear from the face of the indictment." Id. at 821.
In his brief, Diaz asserts that the analysis from Huskins was disapproved of by the court of criminal appeals in a subsequent opinion. See Guthrie-Nail v. State, No. PD-0125-14, 2015 Tex. Crim. App. LEXIS 917 (Tex. Crim. App. Sept. 16, 2015). We believe that Diaz's reliance on Guthrie-Nail is misplaced. In that case, pursuant to an agreement with the State, the defendant pleaded guilty to a conspiracy charge in which the indictment alleged that the defendant entered into an agreement with others to cause the death of the victim and that one of the conspirators shot the victim "with a firearm causing his death." Id. at *2. During a hearing, the trial court asked the defendant about the voluntariness of the plea and "orally found her guilty of the offense 'just as set forth in the indictment.'" Id. at * 3. However, the trial court did not refer to a deadly-weapon finding during the hearing, and "the plea papers" did not "mention [] a deadly-weapon finding." Id. Further, the judgment "reflected 'N/A' in the space provided for 'Findings on Deadly Weapon.'" Id. Approximately two months later, the trial court "signed a judgment nunc pro tunc, changing the 'Findings on Deadly Weapon' entry from 'N/A' to 'Yes, a Firearm.'" Id. at *4. Ultimately, the court of criminal appeals determined that the defendant "was entitled to notice and a hearing prior to the trial court issuing its nunc pro tunc judgment," that the right had been violated, and that a remand for a hearing "is necessary because the State's entitlement to a nunc pro tunc judgment depends," at least in part, on whether the trial court "actually made a deadly-weapon finding," which had "not been conclusively resolved in the State's favor." Id. at *1-2.
Accordingly, unlike the case before us, the court of criminal appeals in GuthrieNail was confronted with a situation in which it had to determine whether a hearing should have been held before the nunc pro tunc judgment making the deadlyweapon finding was issued where there was no mention of a deadly weapon being used when the trial court made its oral pronouncement of guilt and announced its sentence and where the judgment reflected that a deadly weapon finding was not applicable. When discussing the need for a hearing, the court of criminal appeals noted that the parties might be able to reveal how the "'N/A' notation came to be in the judgment" and explained that the written entry of N/A was more explicit than the trial court's "oral pronouncement of guilty 'as set forth in the indictment'" and seemed "to be an explicit determination that a deadlyweapon finding was not being made." Id. at *1415. There was no similar finding made in this case. Moreover, rather than disapprove of the analysis from Huskins, the court of criminal appeals in GuthrieNail cited Huskins for the proposition that "in a bench trial, a trial judge need not include a deadlyweapon finding in the oral pronouncement of judgment; if the charging instrument alleged a deadly weapon, the finding may be included for the first time in a written judgment." Id. at *7.
In the present case, the deadly-weapon allegation was similarly clear from the face of the indictment. Specifically, the indictment alleged that Diaz committed aggravated robbery by engaging in the following misconduct:
did then and there, individually and as a party with Deontavius D'Tarris Griffin, Patrick O'Neal Johnson and Jeremy Michael Oaties, while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally and knowingly threaten or place Jose Rolando Hernandez-Torres in fear of imminent bodily injury or death, and the defendant did th[e]n and there use or exhibit a deadly weapon, to-wit: a firearm.See Tex. Penal Code §§ 29.02(a)(2) (explaining that person commits robbery "if, in the course of committing theft . . . and with intent to obtain or maintain control of the property, he . . . intentionally or knowingly threatens or places another in fear of imminent bodily injury or death"), .03(a)(2) (stating that robbery is aggravated robbery if person "uses or exhibits a deadly weapon"). Moreover, Diaz pleaded guilty to the alleged offense, and his judicial confession confirmed that the deadly-weapon allegation was true and correct. In addition, when the district court questioned Diaz regarding whether he understood what the consequences of a deadly-weapon finding were, Diaz responded, after conferring with his trial attorney, that he understood and agreed that it would have a significant effect on his eligibility for parole.
In his reply brief, Diaz suggests that his judicial confession might have been improper because it was not supported by sufficient evidence establishing his guilt. See Tex. Code Crim. Proc. art. 1.15 (requiring State to introduce "sufficient evidence" showing defendant's guilt before he may be convicted even when defendant pleads guilty to alleged offense). However, Diaz concedes in his brief that he cannot challenge the sufficiency of the evidence supporting his conviction because the requirements for collaterally attacking a judgment are not satisfied here. In general, a defendant who has had his adjudication deferred may raise issues relating to the original plea proceeding, including evidentiary-sufficiency challenges, only in appeals filed when the defendant was first placed on deferred adjudication. Nix v. State, 65 S.W.3d 664, 667 (Tex. Crim. App. 2001). On appeal, Diaz notes that there is an exception to that general rule that applies when the trial court's order deferring adjudication is void because the trial court did not have the "power to render the judgment in question." Id. at 667 (listing two exceptions to general rule: void-judgment exception and habeas-corpus exception); see also Jordan v. State, 54 S.W.3d 783, 786-87 (Tex. Crim. App. 2001) (discussing requirements for second exception). The circumstances in which that can occur are limited but include situations in which there is no evidence to support a conviction. Nix, 65 S.W.3d at 668; see also id. (outlining other circumstances in which judgment is void and subject to collateral attack). However, Diaz acknowledges that the judgment is not void because he entered a guilty plea and because his plea is some evidence of his guilt for purposes of determining whether the judgment was void. See Emmert v. State, No. 07-08-0456-CR, 2009 Tex. App. LEXIS 9994, at *6-8 (Tex. App.—Amarillo Feb. 10, 2009, no pet.) (mem. op., not designated for publication) (determining that defendant's original judgment placing him on community supervision was not void and, therefore, not subject to collateral attack during appeal of revocation proceedings and explaining that there must be complete absence of evidence and not just insufficient evidence for judgment to be void and that although plea of guilty alone might not satisfy requirements of article 1.15 in direct appeal of conviction, it "constitutes some evidence of guilt for purposes of due process" and of determining whether judgment was void).
Furthermore, although the district court did not make an explicit deadly-weapon finding when it orally pronounced its judgment, we note that the district court did state during that hearing that it was finding Diaz guilty of aggravated robbery. There are only three circumstances in which a person may be found guilty of aggravated robbery: if he commits robbery and causes serious bodily injury to another, uses or exhibits a deadly weapon, or causes bodily injury "or threatens or places another person in fear of imminent bodily injury or death" when the victim is a disabled person or over the age of 65. See id. § 29.03(a). Given that the indictment in this case did not allege bodily injury, serious bodily injury, or allege that the victim in this case fell into either of the categories of victims discussed above but did allege that Diaz used a deadly weapon, the trial court's pronouncement implicitly contained a finding that Diaz "used or exhibited a deadly weapon for purposes of establishing his guilt for aggravated" robbery. See Guerrero v. State, 299 S.W.3d 487, 490 (Tex. App.—Amarillo 2009, no pet.).
For these reasons, under Huskins, the district court was free to enter a deadly-weapon finding even though it did not make an oral pronouncement regarding the finding when it imposed its sentence. Accordingly, we overrule Diaz's second issue on appeal.
The deferred-adjudication order contained a deadly-weapon finding that a firearm was used during the offense, and the district court explained during a hearing on the motion to adjudicate that there had been a deadly-weapon finding. Diaz contends that it was inappropriate for the adjudication order to contain a deadly-weapon finding. See, e.g., Guerrero v. State, 299 S.W.3d 487, 490 (Tex. App.—Amarillo 2009, no pet.) (explaining that deadly-weapon finding "would prevent a trial court from opting to defer the adjudication of guilt" or "grant community supervision"). For that reason, Diaz contends that the deadly-weapon finding in the adjudication order is a nullity. Similarly, Diaz urges that "when guilt is adjudicated, the order adjudicating guilt sets aside the order deferring adjudication." See Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004). Accordingly, Diaz argues that the deadly-weapon finding in the deferred-adjudication order cannot serve to support a conclusion that a deadly-weapon finding was properly made in this case. Alternatively, Diaz argues that the deadly-weapon finding in the order deferring his adjudication was improper because the district court allegedly made no oral finding regarding the use of a deadly weapon during the hearing in which his adjudication was deferred. Given our resolution of this issue, we need not address these arguments.
Court Costs
In his final issue on appeal, Diaz asserts that the district "court erred in over-assessing court costs against" him "in the amount of $279.00."
The payment of court costs is mandated by the legislature. Houston v. State, 410 S.W.3d 475, 477 (Tex. App.—Fort Worth 2013, no pet.); see also Tex. Code Crim. Proc. arts. 42.15(a) (applying to judgments that impose fines and requiring defendant to pay fine as well as "costs to the state"), .16 (requiring payment of costs when "punishment is any other than a fine"). However, the defendant may only be obligated to pay court costs that are statutorily authorized. Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014); see also Tex. Code Crim. Proc. art. 103.002 (providing that "[a]n officer may not impose a cost for a service not performed or for a service for which a cost is not expressly provided by law"). Because court costs do not need to be incorporated into a judgment by reference or orally pronounced, defendants may challenge the imposition of court costs for the first time on appeal. Johnson, 423 S.W.3d at 389, 391. When a defendant challenges the imposition of court costs, reviewing courts determine if there is a basis for the costs but do not determine if sufficient evidence was offered during the trial to support each cost. Id. at 390.
The official bill of costs accompanying the district court's order deferring Diaz's adjudication of guilt listed the following costs totaling $251.00: district clerk's fee ($40), sheriff's fees ($25.00), clerk-court-technology-fund fee ($4.00), courthouse-security fee ($5.00), record-preservation fee ($2.50), records-management fee ($22.50), jury-service-fund fee ($4.00), judiciary-support fee ($6.00), consolidated-court fee ($133.00), basic-criminal-legal-services fee ($2.00), administrative-transaction fee ($2.00), and state-electronic-filing fee ($5.00). The district court's judgment adjudicating guilt assessed $577.00 in court costs, and those costs included the costs imposed when Diaz's adjudication was deferred and also included the following: district clerk's fee ($40.00), sheriff's fee ($25.00), capias-warrant fee ($50.00), clerk-court-technology-fund fee ($4.00), courthouse-security fee ($5.00), record-preservation fee ($2.50), records-management fee ($22.50), jury-service-fund fee ($4.00), judiciary-support fee ($6.00), consolidated-court fee ($133.00), time- payment fee ($25.00), basic-criminal-legal-services fee ($2.00), administrative-transaction fee ($2.00), and state-electronic-filing fee ($5.00).
In this issue, Diaz concedes that the time-payment fee; the administrative -transaction fee, which was imposed twice; and the capias-warrant fee were all statutorily authorized and properly assessed in this case. See Tex. Code Crim. Proc. arts. 102.011(a)(2) (permitting imposition of $50 capias fee), .072 (authorizing imposition of administrative fee "for each transaction"); Tex. Loc. Gov't Code § 133.103(a) (allowing $25 time-payment fee). Similarly, Diaz acknowledges that the district-clerk fee, the clerk-court-technology-fund fee, the courthouse-security fee, the record-preservation fee, the records-management fee, the jury-service-fund fee, the judiciary-support fee, the consolidated-court costs fee, and the basic-criminal-legal-services fee were statutorily authorized and properly imposed, see Tex. Loc. Gov't Code §§ 133.102(a) (authorizing $133 consolidated court-costs fee for felonies), .105(a) (permitting fee for support of court-related purposes), .107(a) (empowering courts to impose fee for support of indigent-defense representation); Tex. Code Crim. Proc. arts. 102.0045(a), (b) (allowing imposition of jury-service-fund fee), .005(a), (f) (permitting imposition of district-clerk fee as well as records-management and record-preservation fees), .0169(a), (c) (authorizing court-technology-fund fee), .017(a) (allowing imposition of courthouse-security fee), but he argues that the fees were impermissibly imposed twice. Specifically, he contends that the fees were imposed when he was initially placed on deferred adjudication and then again when he was adjudicated guilty.
As support for his assertion that the fees were improperly imposed when the district court entered its judgment adjudicating his guilt, Diaz points to article 102.073 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 102.073. That provision states that "[i]n a single criminal action in which a defendant is convicted of two or more offenses or of multiple counts of the same offense, the court may assess each court cost or fee only once against the defendant." Id. art. 102.073(a). When addressing a similar argument, this Court explained that "costs assessed at the point of receiving deferred adjudication community supervision and then again at the point of adjudication of guilt are distinguishable from costs assessed for each count or offense in one criminal action. A violation of community supervision requires a new and separate court proceeding from the original proceeding resulting in deferred adjudication community supervision." Weatherspoon v. State, No. 03-15-00236-CR, 2016 Tex. App. LEXIS 672, at *5-6 (Tex. App.—Austin Jan. 22, 2016, no pet. h.) (mem. op., not designated for publication). Accordingly, we do not believe that the provision prohibits trial courts from imposing court costs when a deferred-adjudication order is issued and then later imposing additional court costs if the court adjudicates the defendant's guilt after determining that the defendant violated the conditions of his community supervision. --------
To the extent that Diaz is challenging the court costs that were imposed when his adjudication was deferred and when he was placed on community supervision, "he is procedurally barred from doing so." Weatherspoon v. State, No. 03-15-00236-CR, 2016 Tex. App. LEXIS 672, at *4-5 (Tex. App.—Austin Jan. 22, 2016, no pet. h.) (mem. op., not designated for publication); see Perez v. State, 424 S.W.3d 81, 86 (Tex. Crim. App. 2014) (explaining that failure to file timely appeal of assessment of costs in deferred-adjudication order forfeits "any appellate complaint" regarding those costs). Moreover, we can find nothing in the governing statutes or case law that prohibits a trial court from imposing court costs when adjudication was deferred and later imposing court costs if the trial court adjudicates a defendant's guilt. On the contrary, this Court recently issued an opinion overruling an issue challenging the imposition of court "costs assessed at the time of adjudication on the basis that the costs were already assessed at the point of receiving deferred adjudication community supervision." Weatherspoon, 2016 Tex. App. LEXIS 672, at *5. In making that determination, this Court noted that "the statutes authorizing the assessment of court costs upon conviction" explain that a defendant is convicted when a judgment imposing a sentence has been entered or when his adjudication of guilt has been deferred. Id.; see, e.g., Tex. Code Crim. Proc. art. 102.017(c) (explaining that person is convicted for purpose of imposing fees if "court defers final disposition of the person's case," if sentence has been imposed on person, or if "person receives community supervision, including deferred adjudication"); Tex. Local Gov't Code § 133.101 (stating that person is convicted if "a judgment, a sentence, or both . . . are imposed on the person"; if "the person receives community supervision, deferred adjudication, or deferred disposition"; or if "the court defers final disposition of the case or imposition of the judgment and sentence"). Moreover, given that court costs were "intended by the Legislature as a nonpunitive recoupment of the costs of judicial resources expended in connection with the trial of the case," see Weir v. State, 278 S.W.3d 364, 366 (Tex. Crim. App. 2009), the imposition of court costs for events occurring after the district court issued its order deferring adjudication makes sense as a tool to recoup the costs of judicial resources that were consumed in the process of adjudicating Diaz guilty and of revoking his community supervision. In light of this legal authority as well as the nature of the fees at issue and given that Diaz was placed on deferred adjudication and then later adjudicated guilty, we cannot conclude that the district court erred by imposing the fees at issue that Diaz argues were somehow impermissibly duplicative.
In his next set of arguments, Diaz challenges the imposition of the state-electronic-filing fee and contends that the fee is not authorized by law and should not have been imposed either time. We recently addressed a similar issue. See Ireland v. State, No. 03-14-00615-CR, 2015 Tex. App. LEXIS 8404, at *5-6 (Tex. App.—Austin Aug. 12, 2015, no pet.) (mem. op., not designated for publication). When determining that the state-electronic-filing fee was authorized by statute, this Court explained that "section 51.851 of the Government Code, entitled 'Electronic Filing Fee,' mandates the collection of fees 'on the filing of any civil action or proceeding requiring a filing fee' or 'on conviction of any criminal offense.'" Id. at *5; see Tex. Gov't Code § 51.851(b), (d). Specifically, that provision mandates that "a person shall pay $5 as a court cost on conviction of any criminal offense" and requires that the fees collected be given to the comptroller so that they may be deposited into the statewide electronic-filing-system fund. Tex. Gov't Code § 51.851(d), (g), (i). Accordingly, this Court concluded that the Government Code "provides authorization for the imposition of the challenged $5.00 fee appearing in the bill of costs." Ireland, 2015 Tex. App. LEXIS 8404, at *5; see also Weatherspoon, 2016 Tex. App. LEXIS 672, at *9 (concluding that imposition of state-electronic-filing fee was authorized by statute). For those same reasons, we conclude that the district court did not err by imposing the fee in this case, and for the reasons described above, we also cannot conclude that the district court erred by imposing this fee when the deferred adjudication order was issued and again when the judgment adjudicating guilt was entered. Cf. Tex. Gov't Code § 51.851(a) (providing that "'conviction' has the meaning" found in Local Government Code provision, which includes deferred adjudication as conviction).
In his last set of arguments, Diaz argues that the sheriff's fees were improper because they were not authorized by statute. Although Diaz acknowledges that article 102.011 of the Code of Criminal Procedure authorizes the payment of fees for law-enforcement officers in certain circumstances, see Tex. Code Crim. Proc. art. 102.011, he urges that nothing in that provision authorized the imposition of the $25.00 fees in this case. Although the bill of costs does not provide an itemized account of how the $25 amount was determined, Diaz has not pointed to any authority requiring that type of itemization. Cf. id. art. 103.009 (requiring "[e]ach clerk of a court, county judge, justice of the peace, sheriff, constable, and marshal shall keep a fee record"); Penright v. State, 477 S.W.3d 494, 501 (Tex. App.—Houston [1st Dist.] 2015, pet. filed) (explaining that "Sheriff's fee record" need not be included in appellate record). Further, although the provision does not specifically list a $25 fee, it does authorize the imposition of other fees for law-enforcement officers ranging from $5 to $50 and also authorizes the imposition of more than one type of fee. See Tex. Code Crim. Proc. art. 102.011. In light of the fact that the provision authorizes fees for law-enforcement personnel and allows for the imposition of more than one fee and given that the fees at issue in this case generally fall within the range of permissible fees outlined in that provision, we cannot conclude that the district court erred by imposing the sheriff's fee. Moreover, for the reasons previously stated, we also cannot conclude that the district court erred when it imposed the fee at the time when Diaz's adjudication of guilt was deferred and when the district court later imposed the fee after adjudicating Diaz's guilt. Cf. id. art. 102.011(j) (stating that "'conviction' has the meaning" assigned by Local Government Code provision).
For all of these reasons, we overrule Diaz's third issue on appeal.
CONCLUSION
Having overruled all of Diaz's issues on appeal, we affirm the district court's judgment adjudicating guilt.
/s/_________
David Puryear, Justice Before Justices Puryear, Goodwin, and Bourland Affirmed Filed: March 17, 2016 Do Not Publish