Kendra Philliana Maxion v. State ( 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 Gabriel, Pittman, and Bassel, JJ.
Memorandum Opinion on Rehearing by Justice Bassel
Dissenting and Concurring Memorandum Opinion on Rehearing by Justice Gabriel
MEMORANDUM OPINION ON REHEARING
On December 31, 2018, this court issued an opinion modifying the trial court’s
judgment to delete $555 in reparations that were not supported either by statute or by
the record. The State filed a motion for rehearing and a motion for en banc
reconsideration contending that the language we used in reaching our holding
intimated that the State was required to plead or to allege the failure to pay probation
fees as a ground in its petition to proceed to adjudication in order to recover such fees
and asserting that the record is sufficient to support the reparations ordered by the
trial court. We deny the State’s motion for rehearing but withdraw our prior opinion
and judgment dated December 31, 2018, and substitute the following opinion and
judgment. We dismiss the State’s motion for en banc reconsideration as moot.
I. Introduction
In a single point, Appellant Kendra Philliana Maxion challenges the fee “DUE
TO CSCD” and the probation fees ordered as reparations in the judgment
adjudicating her guilt. Because there is no statutory basis for the fee “DUE TO
CSCD” and because the record does not support the probation fees, we delete the
reparations from the order to withdraw funds and from the judgment and affirm the
judgment as modified.
II. Background
On June 16, 2015, the trial court placed Maxion on five years’ deferred-
adjudication community supervision. See Tex. Penal Code Ann. § 38.04(b)(2)(A).
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Maxion’s conditions of community supervision required her to pay a supervision fee
of $60 monthly beginning July 15, 2015. The State ultimately filed a sixth amended
petition to proceed to adjudication, alleging that Maxion had violated eight conditions
of her community supervision. On March 28, 2018, the trial court held a hearing at
which the State waived several 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 of evading arrest or detention with a motor vehicle, and sentenced
her to six years’ imprisonment. The judgment orders Maxion to pay reparations in
the amount of $555, which consists of $540 in probation fees and $15 in fees “DUE
TO CSCD.”
III. Reparations Not Supported Either by Statute or by the Record
A. Reparations Labeled as Fee “DUE TO CSCD”
In her sole point, Maxion argues that the trial court violated her right to due
process when it imposed money “DUE TO CSCD” and probation fees as reparations
in the judgment. The State concedes that the $15 fee “DUE TO CSCD” should be
deleted from the reparations total because there is no statutory basis for the fee. We
agree. See Lewis v. State, 423 S.W.3d 451, 461 (Tex. App.—Fort Worth 2013, pet.
ref’d) (striking from the reparations total the amount “DUE TO CSCD” because
there was no support in the record to show where the amount came from); 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
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cases from this court deleting fees “DUE TO CSCD”). We therefore sustain the
portion of Maxion’s sole point challenging the portion of reparations that represents
fees “DUE TO CSCD.”
B. Reparations Labeled as Probation Fees
With regard to the portion of the reparations that represents probation fees,
Maxion challenges that reparations can be defined broadly enough to include
probation fees. We have repeatedly rejected this argument, and we decline to
reexamine the argument here. 1 See 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 WL 742087, at *2 (Tex. App.—Fort Worth Feb. 25, 2016, pet. ref’d)
(mem. op., not designated for publication).
Because the statement of an issue is treated as covering every subsidiary
question that is fairly included, we broadly construe Maxion’s argument to also
challenge the trial court’s imposition of probation fees. See generally Tex. R. App. P.
38.1(f) (stating rule on issues presented in briefs). The code of criminal procedure
provides that “a judge who grants community supervision to a defendant shall set a
fee of not less than $25 and not more than $60 to be paid each month during the
period of community supervision by the defendant.” Tex. Code Crim. Proc. Ann. art.
42A.652(a). The code of criminal procedure also mandates that when a person is
required to pay a cost, that cost must be documented by a bill. See id. art. 103.001(b).
1
Maxion’s brief acknowledges that this court has held contrary to her argument.
4
The fact that the charge for community supervision is described as a fee rather than as
a cost does not except it from the requirement of including it on a written bill. Cf.
Beard v. State, Nos. 09-13-00391-CR, 09-13-00392-CR, 2013 WL 6705981, at *2 (Tex.
App.—Beaumont Dec. 18, 2013, no pet.) (mem. op., not designated for publication)
(treating administrative fee that is assessed for an individual’s failure to pay the
monthly community supervision fee as a cost subject to the requirements of article
103.001); cf. also Ireland v. State, No. 03-14-00615-CR, 2015 WL 4914732, at *1 (Tex.
App.—Austin Aug. 12, 2015, no pet.) (mem. op., not designated for publication)
(discussing administrative transaction fee established by article 102.072 as a court
cost).
A record is sufficient to support a requirement to pay owed probation fees as
reparations when it contains an uncontradicted, unobjected-to CSCD balance sheet
showing the arrearage. See Smith v. State, Nos. 02-16-00412-CR, 02-16-00413-CR,
2017 WL 2276751, at *4 (Tex. App.—Fort Worth May 25, 2017, pet. ref’d) (mem. op.,
not designated for publication). The Texas Court of Criminal Appeals has noted that
although a bill of costs is not required to support a judgment for costs, “it is the most
expedient, and therefore, preferable method.” Johnson v. State, 423 S.W.3d 385, 396
(Tex. Crim. App. 2014); see Steen v. State, No. 02-13-00559-CR, 2014 WL 4243702, at
*2 (Tex. App.—Fort Worth Aug. 28, 2014, pet. ref’d) (mem. op., not designated for
publication) (applying Johnson to probation fees assessed in bill of costs). Accordingly,
this court has previously relied on the bill of costs or an uncontradicted CSCD
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balance sheet or both—when they reflect the same amount—to determine the
amount of probation fees due, as exemplified in the following cases.
1. Summary of Prior Holdings2
In Steen, we held that the certified bill of costs, showing that the appellant owed
$2,507 in community-supervision fees at the time of the revocation hearing was
“enough to support inclusion in the judgment of $2,507 in statutorily-authorized,
community-supervision fees.” 2014 WL 4243702, at *2. In that case, the record also
included a CSCD balance sheet showing fees “DUE TO CSCD” of $137 and
probation fees of $2,370 for total reparations of $2,507.
In Tucker, we held that “[t]he amount of the community supervision fees owed
were supplied by the Balance Sheet and the Certified Bill of Costs, both of which are
part of the record. This is sufficient evidence to support the amount of $120 in
community supervision fees assessed as reparations.” 2016 WL 742087, at *2.
In Taylor v. State, both the bill of costs and the CSCD balance sheet reflected
that the appellant owed $135 in reparations, and only the list of fee breakdowns
showed that there was $0 in probation fees remaining. No. 02-15-00425-CR, 2016
WL 3159156, at *5 (Tex. App.—Fort Worth June 2, 2016, pet. ref’d) (mem. op., not
designated for publication). We looked at the three documents collectively in the light
most favorable to the award of reparations and held that the certified bill of costs and
2
Each of the following cases dealt with reparations assessed in Tarrant County.
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the CSCD balance sheet “qualif[ied] as sufficient evidence to support the
reparations.” Id.
Similarly, in Zamarripa, we held that “the $292 in community supervision fees
appearing on the balance sheet and on the certified bill of costs support[ed] the award
of $292 in community supervisions fees listed as reparations in the trial court’s
judgment” and disregarded the list of fee breakdowns that showed $0 for probation
fees remaining. 506 S.W.3d at 716–17.
In Smith, we held that “in the absence of contradicting evidence showing that
appellant did not owe the reparations or had already paid them, the CSCD balance
sheet contained in the record is sufficient to support the reparations.” 2017 WL
2276751, at *3 (footnote omitted). The record, however, reflects that the bill of costs
did not list any probation fees, that the CSCD balance sheet reflected probation fees
of $1,085 as reparations, and that the list of fee breakdowns reflected $0 in probation
fees remaining.
In Hill v. State, the record contained contradictory documents showing that the
appellant owed probation fees of either $1,605 (the CSCD balance sheet) or $0 (the
bill of costs did not list any and the list of fee breakdowns reflected $0), and the State
conceded that there was no evidence or any finding in the record that the appellant
had failed to pay $1,605 in probation fees. No. 02-17-00088-CR, 2017 WL 3821898,
at *1 (Tex. App.—Fort Worth Aug. 31, 2017, no pet.) (mem. op., not designated for
publication). We agreed and deleted the reparations.
7
In Riojas v. State, we relied solely on the CSCD balance sheet and did not
mention the bill of costs, which was part of the record and did not list any
outstanding probation fees. No. 02-18-00026-CR, 2018 WL 3580897, at *2 (Tex.
App.—Fort Worth July 26, 2018, no pet.) (mem. op., not designated for publication).
Utilizing the terms from the appellant’s conditions of community supervision, we
multiplied the $60 monthly fee times the eight months that had elapsed between when
the trial court placed the appellant on deferred-adjudication community supervision
and when it revoked his community supervision. Id. That amount—$480—matched
the amount shown on the CSCD balance sheet. Id. Accordingly, we held that the
record supported the $480 portion of the reparations ordered for probation fees. Id.
In Ayala v. State, we relied on the CSCD balance sheet instead of the list of fee
breakdowns but recalculated the probation fees because the State conceded that it had
charged the appellant for one extra month. No. 02-17-00385-CR, 2018 WL 2727954,
at *1 (Tex. App.—Fort Worth June 7, 2018, no pet.) (mem. op., not designated for
publication). The opinion does not mention the bill of costs, which was included in
the record but did not list probation fees.
2. Analysis
Here, the March 28, 2018 certified bill of costs, which is attached to this
opinion as Appendix A, shows total costs of $0. The CSCD balance sheet—which
was prepared six days later on April 3, 2018, and is attached to this opinion as
Appendix B—shows $540 in probation fees. The “List of Fee Breakdowns,” which
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was prepared on April 3, 2018, and is attached to this opinion as Appendix C, shows
that Maxion owed $0 in probation fees. On the face of these documents, there is a
contradiction in the amount of probation fees that remain outstanding.
In its motion for rehearing, the State attempts to explain away any
contradiction as follows:
While the District Clerk’s certified bill of costs and “List of Fee
Breakdowns” do not show that Appellant owed probation fees at that
time, these documents are not inconsistent and do not present
contradictory evidence. All of these documents, together, demonstrate
that on March 28, 2018, the day of Appellant’s adjudication, no
additional costs had been assessed when the Certified Bill of Costs was
created. Then, on April 3, 2018, the Community Supervision and
Corrections Department calculated Appellant’s probation fees arrears at
$540.00 and converted them to Reparations. Finally, when the district
clerk pulled the records and created the List of Fee Breakdowns, the
remaining balance on probation fees was “$0.00” because, at that time,
Appellant no longer owed probation fees but owed reparations. And the
District Clerk’s List of Fee Breakdowns makes no reference to
reparations. In short, the Certified Bill of Cost, the District Clerk’s List
of Fee Breakdowns[,] and the CSCD Balance Sheet, considered together,
confirm that Appellant owed probation fees. [Record references and
footnotes omitted.]
This explanation of the procedure for how and when probation fees were converted
to reparations is not, however, in the record. Nor does it explain why the total
reparations were not listed on the bill of costs.3
3
We note that the records from prior Tarrant County cases have listed
reparations on the bill of costs. See Zamarripa, 506 S.W.3d at 717 (mentioning that
community supervision fees were shown on the certified bill of costs; record reflects
that the bill of costs lists the fee as “Reparation (Probation Fees)”); Taylor, 2016 WL
3159156, at *5 (same); Tucker, 2016 WL 742087, at *2 (same); Steen, 2014 WL
4243702, at *2 (stating that “[t]he certified bill of cost, included in the record of this
case, show[ed that] Appellant owed $2,507 in community-supervision fees”; record
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Moreover, even if we assume that the above procedure was utilized and that
the probation fees were converted to reparations, neither we nor the State can
calculate the amount of outstanding probation fees. The State in its motion for
rehearing states that Maxion’s total exposure for probation fees was $1,980, which
was calculated by multiplying $60 per month times the thirty-three months (from
July 15, 2015 through March 15, 2018) that she was on probation. But the amount of
outstanding probation fees shown on the CSCD balance sheet is $540. The State
concludes,
While there is no specific evidence regarding what months Appellant did
or did not pay [probation fees], this document [the CSCD balance sheet]
supports that Appellant owed $540 in probation fees because she did not
pay off the entire $1980 owed.
In short, the evidence was sufficient to support the trial court’s
order for reparations. [Record references omitted.]
The State thus concedes that the amount of probation fees remaining cannot be
calculated based on the record before us and that instead of calculating the amount,
we are to rely on a single-line gross accounting entry that has no supporting detail.4
reflects that the bill of costs lists the fee as “Reparation (Probation Fees)”); Strange v.
State, No. 02-14-00055-CR, 2014 WL 3868225 (Tex. App.—Fort Worth Aug. 7, 2014,
no pet.) (mem. op., not designated for publication) (although not stated in the opinion
because the State conceded error, the record contains a bill of costs reflecting
“Reparation (Probation Fees)” of $443).
4
While we agree with the State that the existence of administrative documents
in the record can be sufficient evidence to support an order for reparation, the
administrative documents in the record in this case are insufficient to show that
“there is a basis for the cost.” See Johnson, 423 S.W.3d at 390. And unlike Zamarripa,
which the State urges us to rely on, we do not have a certified bill of costs that
matches the CSCD balance sheet. 506 S.W.3d at 716.
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As set forth above, we have no case from this court in which a contradiction
between the CSCD balance sheet and the bill of costs was highlighted and in which
we chose to rely solely on the CSCD balance sheet for the amount of probation fees
remaining. Nor have we relied solely on the CSCD balance sheet without being able
to recalculate the amount shown or the amount conceded by the State.
Because the CSCD balance sheet is contradicted by the bill of costs and
because the amount shown on the CSCD balance sheet cannot be recalculated, we
conclude that the record does not support the amount of probation fees assessed as
reparations. See Hill, 2017 WL 3821898, at *1. Accordingly, we sustain the remainder
of Maxion’s sole point.
IV. Conclusion
Having sustained Maxion’s sole point challenging the reparations ordered in the
judgment, we delete $555 from the order to withdraw funds so that it reflects that $0
should be withdrawn from Maxion’s inmate trust account; we delete the line in the
judgment that states, “REPARATIONS IN THE AMOUNT OF $555”; and we
affirm the judgment as modified. See id. (striking reparations when the only evidence
of probation fees was contradictory).
/s/ Dabney Bassel
Dabney Bassel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: April 4, 2019
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Appendix A
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Appendix B
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Appendix C
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