Zachary Isaac Winegeart v. State ( 2020 )

Opinion filed March 19, 2020
In The
Eleventh Court of Appeals
___________
No. 11-19-00299-CR
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ZACHARY ISACC WINEGEART, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 91st District Court
Eastland County, Texas
Trial Court Cause No. 22505
MEMORANDUM OPINION
Appellant, Zachary Isacc Winegeart, originally pleaded guilty to the state jail
felony offense of possession of less than one gram of a controlled substance. See
TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (b) (West 2017). Pursuant to the
terms of a plea agreement, the trial court deferred a finding of guilt, placed Appellant
on community supervision for four years, and imposed a fine of $2,000. The State
subsequently filed a motion to proceed with an adjudication of guilt. At Appellant’s
request, the trial court extended the period of community supervision for four years
and added a condition of community supervision that required Appellant to reside at
an Intermediate Sanction Facility for a term of not less than 180 days. The State
dismissed the motion to adjudicate.
The State subsequently filed a second motion to proceed with an adjudication
of guilt. During the hearing on the motion, the State called Nathan Wade Honeycutt,
an indirect supervision officer, to testify in support of the motion, and Appellant’s
fiancée to testify about Appellant’s drug use. Appellant also testified and admitted
that he had used drugs and failed to report as required while he was on community
supervision. Appellant testified that he stopped reporting and stopped paying the
required fees because he believed that his community supervision was discharged at
the same time that he was released from community supervision in another county.
The trial court found all but one of the State’s allegations to be true, adjudicated
Appellant guilty of possession of less than one gram of a controlled substance, and
sentenced Appellant to two years’ confinement. We modify and affirm.
Appellant’s court-appointed counsel has filed a motion to withdraw. The
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 this
appeal is frivolous and without merit. 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 appellate record. Counsel advised Appellant of his right to review the record and
file a response to counsel’s brief. 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).
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Appellant has not filed a pro se response to counsel’s Anders brief. Following
the procedures outlined in Anders and Schulman, we have independently reviewed
the record, and we agree that the appeal is without merit. The State presented
evidence in support of the allegations in its motion to adjudicate, and Appellant
admitted that he violated the terms of his community supervision. 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). Further, 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 record, we agree with counsel that
no arguable grounds for appeal exist.1
We conclude, however, that the judgment contains nonreversible error. First,
there is a variation between the oral pronouncement of sentence and the written
judgment of adjudication. The written judgment requires Appellant to pay $705.98
for court costs. The bill of cost reflects that the court costs include a fine of $2,000.
After Appellant was given credit for the payments that he made while on community
supervision, the remaining court costs were $705.98, the amount included in the
judgment.
When the trial court assessed Appellant’s punishment and orally pronounced
sentence in open court, the trial court did not mention a fine. The trial court was
required to pronounce the sentence in Appellant’s presence. See TEX. CODE CRIM.
PROC. ANN. art. 43.03 (West 2018); Taylor v. State, 131 S.W.3d 497, 500 (Tex.
1
We note that Appellant has a right to file a petition for discretionary review pursuant to Rule 68
of the Texas Rules of Appellate Procedure.
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Crim. App. 2004). When there is a variation between the oral pronouncement of
sentence and the written judgment, the oral pronouncement controls. Coffey v. State,
979 S.W.2d 326, 328–29 (Tex. Crim. App. 1998); see also Taylor, 131 S.W.3d at
500–02 (explaining the distinction between regular community supervision, in
which sentence is imposed but suspended when a defendant is placed on community
supervision, and deferred-adjudication community supervision, in which the
adjudication of guilt and the imposition of sentence are deferred). Because the trial
court did not mention any fine when it orally pronounced Appellant’s sentence and
because we have the necessary information for reformation, we modify the trial
court’s judgment to delete the court costs of $705.98. See Taylor, 131 S.W.3d at
502. We also delete the $2,000 fine from the bill of cost. See Noonkester v. State,
No. 02-14-00147-CR, 2015 WL 831421, at *2 (Tex. App.—Fort Worth Feb. 26,
2015, no pet.) (mem. op., not designated for publication) (deleting fine that was not
orally pronounced from bill of cost).
Second, the bill of cost indicates that Appellant was assessed a fee of $400 for
a court-appointed attorney during the adjudication proceedings. Attorney’s fees as
set forth in a certified bill of cost are effective even if not incorporated by reference
in the written judgment. Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App.
2011). There must be sufficient evidence to support an assessment of attorney’s fees
in a bill of cost. See Mayer v. State, 309 S.W.3d 552, 554–56 (Tex. Crim. App.
2010).
The clerk’s record reflects that Appellant completed an “Indigence Form” and
that the trial court appointed an attorney to represent Appellant during the
adjudication proceedings. Because the trial court determined that Appellant was
indigent and because nothing in the record demonstrates that he was able to pay all
or part of his attorney’s fees, attorney’s fees cannot be assessed against Appellant as
court costs. See id. at 555–56; Jackson v. State, 562 S.W.3d 717, 723 (Tex. App.—
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Amarillo 2018, no pet.). We, therefore, delete the assessment of $400 for attorney’s
fees from the bill of cost. See Hunter v. State, No. 12-15-00268-CR, 2016 WL
1599917, at *2 (Tex. App.—Tyler Apr. 20, 2016, no pet.) (mem. op., not designated
for publication) (modifying bill of cost to delete assessment of attorney’s fees);
Noonkester, 2015 WL 831421, at *2.
We grant counsel’s motion to withdraw, and we modify the judgment of the
trial court to delete the court costs of $705.98. We also delete the fine of $2,000 and
the assessment of attorney’s fees in the amount of $400 from the bill of cost. As
modified, we affirm the judgment of the trial court.
PER CURIAM
March 19, 2020
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Stretcher, J.,
Wright, S.C.J.,2 and Judge Trotter3
Bailey, C.J., and Willson, J., not participating.
2
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
3
The Honorable W. Stacy Trotter, 358th District Court, Ector County, Texas, sitting by assignment.
5