Michial James Sheridan v. State ( 2020 )

Opinion filed April 16, 2020
In The
Eleventh Court of Appeals
_________________
Nos. 11-19-00303-CR & 11-19-00304-CR
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MICHIAL JAMES SHERIDAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 358th District Court
Ector County, Texas
Trial Court Cause Nos. D-39,838 & D-39,839
MEMORANDUM OPINION
Appellant, Michial James Sheridan,1 originally pleaded guilty to the state jail
felony offenses of possession of a controlled substance and evading arrest or
detention with a vehicle. Pursuant to the terms of the plea agreements, the trial court
deferred a finding of guilt in each cause, assessed a fine of $2,000 in one cause, and
1
We note that Appellant’s name as it appears on each of the indictments is Michial James Sheridan
but that the name on the judgments adjudicating guilt is Michael James Sheridan.
placed Appellant on community supervision for five years. The State subsequently
filed a motion to adjudicate Appellant’s guilt in each cause. Appellant pleaded not
true to all of the State’s allegations, and the trial court conducted an evidentiary
hearing. Based upon the undisputed evidence, the trial court found all of the State’s
allegations to be true, revoked Appellant’s community supervision, adjudicated him
guilty of the charged offenses, assessed his punishment in each cause at confinement
for two years in a state jail facility, and ordered that the sentences shall run
concurrently. The trial court announced in open court that, in the possession case, it
was also assessing a fine of $1,499, restitution of $130, and delinquent fees owed to
“the adult probation department of Ector County” in the amount of $2,970. We
modify the monetary assessment in the possession case and, as modified, affirm the
judgments of the trial court.
Anders
Appellant’s court-appointed counsel has filed a motion to withdraw in each
cause. Each motion is supported by a brief in which counsel professionally and
conscientiously examines the record and applicable law and states that he has
concluded that the appeal is frivolous and without merit. In each cause, counsel has
provided Appellant with a copy of the brief, a copy of the motion to withdraw, an
explanatory letter, and a copy of the clerk’s record and the reporter’s record.
Counsel advised Appellant of his right to review the records and file a response to
counsel’s briefs. Counsel also advised Appellant of his right to file a pro se petition
for discretionary review in order to seek review by the Texas Court of Criminal
Appeals. See TEX. R. APP. P. 68. Court-appointed counsel has complied with the
requirements of Anders v. California, 386 U.S. 738 (1967); Kelly v. State, 436
S.W.3d 313 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d 403 (Tex. Crim.
App. 2008); and Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1991).
2
Appellant has not filed a response to counsel’s Anders briefs. Following the
procedures outlined in Anders and Schulman, we have independently reviewed the
records, and we agree that the appeals are without merit. We note that proof of one
violation of the terms and conditions of community supervision is sufficient to
support revocation. Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009).
Furthermore, absent a void judgment, issues relating to an original plea proceeding
may not be raised in a subsequent appeal from the revocation of community
supervision and adjudication of guilt. Jordan v. State, 54 S.W.3d 783, 785–86 (Tex.
Crim. App. 2001); Manuel v. State, 994 S.W.2d 658, 661–62 (Tex. Crim. App.
1999). Based upon our review of the records, we agree with counsel that no arguable
grounds for appeal exist. 2
Nonreversible Error
We note, however, that the judgment in trial court cause no. D-39,838 contains
nonreversible error: the trial court’s assessment of restitution and delinquent
probation fees. In its written judgment, the trial court ordered Appellant to pay
“Restitution” in the amount of $3,100, which consisted of restitution in the amount
of $130 payable to the Texas Department of Public Safety and restitution in the
amount of $2,970 payable to Ector County Adult Probation. When it pronounced
its judgment from the bench, the trial court did not indicate that the $2,970 was
restitution. Because the oral pronouncement from the bench controls, Burt v. State,
445 S.W.3d 752, 757 (Tex. Crim. App. 2014), we will address the propriety of both
restitution and reimbursement/reparations.
DPS Fees
Although a trial court has authority to require a defendant to reimburse the
DPS for lab fees as a condition of community supervision, see TEX. CODE CRIM.
2
We note that Appellant has a right to file a petition for discretionary review pursuant to TEX. R.
APP. P. 68.
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PROC. ANN. arts. 42A.301(b)(18), .651 (West Supp. 2019), a trial court has no
authority to assess such fees when it revokes the defendant’s community supervision
and sentences him to imprisonment. Aguilar v. State, 279 S.W.3d 350, 353 (Tex.
App.—Amarillo 2007, no pet.); see Sexton v. State, No. 11-18-00278-CR, 2019 WL
4316791, at *1 (Tex. App.—Eastland Sept. 12, 2019, pet. ref’d) (per curiam) (mem.
op., not designated for publication); see also CRIM. PROC. art. 42A.755 (West 2018).
Thus, when it revoked Appellant’s community supervision and adjudicated guilt, the
trial court had no authority to order Appellant to reimburse the DPS for testing the
controlled substance in the possession case. See Aguilar, 279 S.W.3d at 353; see
also Sexton, 2019 WL 4316791, at *1; King v. State, No. 12-17-00194-CR, 2018
WL 345737, at *2 (Tex. App.—Tyler Jan. 10, 2018, no pet.) (mem. op., not
designated for publication).
Furthermore, DPS fees are not properly subject to a “restitution” order. See
Hanna v. State, 426 S.W.3d 87, 91 (Tex. Crim. App. 2014) (recognizing that
restitution “may be ordered only to a victim of an offense for which the defendant is
charged”); Sexton, 2019 WL 4316791, at *1. A trial court is authorized to order a
defendant convicted of an offense to pay restitution to a victim of the offense or to a
crime victim’s assistance fund, not to an agency of the State of Texas such as the
DPS. See CRIM. PROC. arts. 42.037(a), (i), 42A.301(b)(17); Hanna, 426 S.W.3d at
91, 94; Sexton, 2019 WL 4316791, at *1. Because the trial court had no authority to
require Appellant to pay restitution to the DPS, the trial court erred when it imposed
restitution in the amount of $130 payable to the DPS.
Ector County Adult Probation Fees
A trial court is authorized to impose monthly fees for community supervision
to be paid during the period of community supervision. CRIM. PROC. art. 42A.652.
However, we can find no current statute that would authorize a trial court to order a
defendant to pay such fees after his community supervision has been revoked. We
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note that the Fort Worth Court of Appeals has consistently held that delinquent
community supervision fees may be assessed as “reparations.” See, e.g., Kitchen v.
State, No. 02-18-00374-CR, 2019 WL 3069871, at *3 (Tex. App.—Fort Worth
July 15, 2019, pet. ref’d) (en banc); Zamarripa v. State, 506 S.W.3d 715, 716 (Tex.
App.—Fort Worth 2016, pet. ref’d); Tucker v. State, No. 02-15-00265-CR, 2016 WL
742087, at *2 (Tex. App.—Fort Worth Feb. 25, 2016, pet. ref’d) (mem. op., not
designated for publication). While we agree that the Texas Code of Criminal
Procedure previously authorized the assessment of reparations, we do not believe
that the Code continues to do so. As noted in 2016 by the Fort Worth Court of
Appeals in Tucker, Article 42.03, section 2(b) of the Texas Code of Criminal
Procedure provided that the trial court “shall enter the restitution or reparation due
and owing on the date of the revocation.” Tucker, 2016 WL 742087, at *2 (emphasis
added) (quoting former CRIM. PROC. art. 42.03, § 2(b) (West Supp. 2015) and citing
former CRIM. PROC. art. 42.12, § 19(a)). However, effective January 1, 2017, the
legislature amended the Texas Code of Criminal Procedure to delete “or reparation”
from the relevant sections of the Code. See Act of May 26, 2015, 84th Leg., R.S.,
ch. 770, §§ 2.12, 4.02, 2015 Tex. Gen. Laws 2321, 2370, 2395 (H.B. 2299) (codified
at CRIM. PROC. art. 42.03, § 2(b)); Id. § 1.01, at 2364 (codified at CRIM. PROC.
art. 42A.755).
The current version of Article 42.03, section 2(b), which relates to the
pronouncement of sentence, provides: “In all revocations of a suspension of the
imposition of a sentence the judge shall enter the restitution due and owing on the
date of the revocation.” CRIM. PROC. art. 42.03, § 2(b) (emphasis added). Likewise,
the current provision relating to the revocation of community supervision provides
that a trial court “shall enter in the judgment in the case the amount of restitution
owed by the defendant on the date of revocation.” CRIM. PROC. art. 42A.755
(emphasis added). Any mention of “reparation” has been removed from the Code.
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Therefore, the current provisions of the Code do not authorize a trial court, when
revoking a defendant’s community supervision, to impose reparations to be paid to
a community supervision department for delinquent fees. Because the imposition of
the $2,970 payable to the community supervision department was not authorized by
statute, either as restitution or reparations, the trial court erred when it imposed that
requirement.
When a trial court lacks statutory authority to impose the specific restitution
order, such as when restitution has been ordered to be paid to someone who was not
a victim of the offense, we should delete the restitution order. Burt, 445 S.W.3d at
757–58; Sexton, 2019 WL 4316791, at *1. The same holds true for an unauthorized
reparation. Therefore, we modify the trial court’s judgment in trial court cause no.
D-39,838 to delete the following: “$3,100.00” shown as “Restitution,” including the
“$2,970.00” payable to Ector County Adult Probation and the “$130.00” payable to
Texas Department of Public Safety.
This Court’s Ruling
Appellate counsel’s motions to withdraw are granted. The judgment of the
trial court in cause no. D-39,839 is affirmed. The judgment of the trial court in cause
no. D-39,838 is modified to delete the amounts shown as restitution and, as
modified, is affirmed.
PER CURIAM
April 16, 2020
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.3
Willson, J., not participating.
3
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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