Myranda Lee Sefcik v. State ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00079-CR
___________________________
MYRANDA LEE SEFCIK, Appellant
V.
THE STATE OF TEXAS
On Appeal from the County Court of
Young County, Texas
Trial Court No. 37824
Before Sudderth, C.J.; Pittman and Birdwell, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
Appellant Myranda Lee Sefcik appeals her conviction for possession of two
ounces or less of marijuana, for which she was sentenced to 180 days’ confinement
and was ordered to pay a $500 fine and various costs and fees upon the revocation of
her deferred adjudication community supervision. See Tex. Health & Safety Code
Ann. § 481.121(a), (b)(1) (stating that possession of marijuana is a class B
misdemeanor if the amount possessed is two ounces or less); Tex. Penal Code Ann.
§ 12.22 (stating that a person adjudged guilty of a class B misdemeanor shall be
punished by a fine not to exceed $2,000, confinement in jail for a term not to exceed
180 days, or both).
Appellant’s court-appointed appellate counsel filed a motion to withdraw as
counsel and a brief in support of that motion. See Anders v. California, 386 U.S. 738,
744–45, 87 S. Ct. 1396, 1400 (1967). Counsel’s brief and motion meet the
requirements of Anders v. California by presenting a professional evaluation of the
record demonstrating why there are no arguable grounds for relief. Id., 87 S. Ct. at
1400. Appellant had the opportunity to file a pro se response to the Anders brief but
has not done so. The State has not filed a brief.
Once an appellant’s court-appointed attorney files a motion to withdraw on the
ground that the appeal is frivolous and fulfills the requirements of Anders, this court
must independently examine the record. See Stafford v. State, 813 S.W.2d 503, 511
(Tex. Crim. App. 1991); Mays v. State, 904 S.W.2d 920, 922–23 (Tex. App.—Fort
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Worth 1995, no pet.). Only then may we grant counsel’s motion to withdraw. See
Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988).
We have carefully reviewed the record and counsel’s brief. We asked the clerk
to supplement the record with the statutory citations supporting each fee listed in the
bill of costs.
We note that when guilt is adjudicated, the order adjudicating guilt sets aside
the order deferring adjudication, including any previously imposed fines. Alexander v.
State, 301 S.W.3d 361, 363 (Tex. App.—Fort Worth 2009, no pet.) (citing Taylor v.
State, 131 S.W.3d 497, 501–02 (Tex. Crim. App. 2004)). At the revocation hearing,
however, the trial court sentenced Sefcik to 180 days’ confinement and added, “All
the fines and fees will run concurrent with that sentence.” The trial court’s order
adjudicating guilt clarified that in addition to her 180-day sentence, Sefcik would be
assessed “the balance of probation fees of $720.00, a fine of $500.00, Court appointed
Attorney fees in the amount of $300.00, Court Costs in the amount of $306.00, and
UA fee of $10.00.”
In the supplemental record, the clerk cited code of criminal procedure article
42A.652 in support of the $720 “probation cost.” Under article 42A.652, a judge who
grants community supervision shall set a fee of not less than $25 and not more than
$60 to be paid by the defendant each month “during the period of community
supervision.” Tex. Code Crim. Proc. Ann. art. 42A.652(a). “In all revocations of a
suspension of the imposition of a sentence the judge shall enter the restitution due and
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owing on the date of the revocation.” Id. art. 42.03, § 2(b) (emphasis added); Conner v. State,
418 S.W.3d 742, 745 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (“The
supervision fees accrued for over five months. Sufficient evidence thus supports the
trial court’s assessment of $360, or six months’ worth of supervision fees.” (footnote
omitted)); see also McKinney v. State, No. 02-12-00479-CR, 2014 WL 1510095, at *1–2
(Tex. App.—Fort Worth Apr. 14, 2014, pet. ref’d) (mem. op., not designated for
publication) (holding that when the record contained (1) a condition of community
supervision requiring the $60 monthly supervision fee; (2) the period of time during
which appellant was on supervision, which was 13 months; and (3) testimony that
appellant had paid only one month’s fee, the record supported the assessment of $720
in unpaid supervision fees).
The terms and conditions of Sefcik’s community supervision included paying
$60 per month to cover the costs of supervision, to be paid “on or before the report
date of each month.” The record reflects that Sefcik was on community supervision
for five months before it was revoked; accordingly, the amount of probation
supervision fees that she owed at the time of revocation totaled $300. The record
reflects that she paid only $51. Less the $51 that Sefcik paid, the amount of
supervision fees that she owed at the time of revocation should have been $249 since,
after her conviction, she was no longer “during the period of community
supervision,” see Tex. Code Crim. Proc. Ann. art. 42A.652(a), and any fee in excess of
that amount was not “due and owing on the date of the revocation.” See id. art. 42.03,
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§ 2(b) (emphasis added); see also Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App.
2014) (stating that “[o]nly statutorily authorized costs may be assessed against a
criminal defendant”). We reform the judgment and bill of costs to reflect that Sefcik
owed only $249 in probation fees.
Sefcik was also incorrectly billed $5 instead of $3 for a courthouse security fee;
a county court misdemeanor conviction fee for courthouse security is only $3. See
Tex. Code Crim. Proc. Ann. art. 102.017(b); see also Johnson, 423 S.W.3d at 389. We
reform the bill of costs to reflect that Sefcik owed only $3 for her courthouse security
fee, making her total court costs $303.1
And we remove the $300 attorney’s fee charge because the record reflects that
Sefcik was indigent from the case’s inception through the appeal and nothing in the
record supports a determination that she had the financial resources to enable her to
offset in part or in whole the costs of legal services provided to her. See Tex. Code
Crim. Proc. Ann. arts. 26.04(m), 26.05(f), (g); see also Johnson, 423 S.W.3d at 389
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Notwithstanding that the clerk listed the incorrect code section to support the
$10 “UA Cost,” under code of criminal procedure article 42A.301(a)(13), the trial
court could require, as a condition of community supervision, that Sefcik be tested for
controlled substances, and #13 of her conditions of community supervision required
her to “submit to urinalysis for drug . . . screening at the defendant’s own expense at the
request of the Young County probation officer.” [Emphasis added.] The record
reflects that Sefcik incurred that cost on September 25, 2017. Because Sefcik was on
notice about this fee when her community supervision was revoked, we will not
disturb this portion of the trial court’s judgment. For the same reason, we do not
disturb the $500 fine that the trial court initially assessed when it entered the order of
deferred adjudication and then renewed upon her conviction and sentencing.
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(identifying attorney’s fees as a discretionary cost that requires the court to determine,
under code of criminal procedure article 26.05(g), whether a criminal defendant has
financial resources that enable her to offset in part or in whole the costs of the legal
services provided); McFatridge v. State, 309 S.W.3d 1, 6 (Tex. Crim. App. 2010)
(providing that after a defendant establishes a prima facie showing of indigency, an
appellate court can uphold the trial court’s determination of non-indigence only if the
record contains evidence supporting that determination); Barrera v. State, 291 S.W.3d
515, 518 (Tex. App.—Amarillo 2009, no pet.) (requiring that some factual basis in the
record show that an accused is capable of paying a legal fee levied under article
26.05(g)).
Notwithstanding the above corrections, we otherwise agree with counsel that
this appeal is wholly frivolous and without merit; we find nothing in the record that
might arguably support the appeal. See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex.
Crim. App. 2005); see also Meza v. State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App.
2006).
Accordingly, we grant counsel’s motion to withdraw and reform the judgment
and bill of costs to (1) correct the $720 probation fee amount to $249, (2) remove the
$300 charge for appointed counsel fees, and (3) replace the $5 charge for the
courthouse security fee with the correct $3 charge. We affirm the trial court’s
judgment and bill of costs as modified. See Bray v. State, 179 S.W.3d 725, 726 (Tex.
App.—Fort Worth 2005, no pet.).
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/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: February 28, 2019
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