In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-18-00374-CR

___________________________

On Appeal from the 297th District Court

Tarrant County, Texas

Trial Court No. 1478907D

Before Pittman, Birdwell, and Bassel, JJ.

Memorandum Opinion on Rehearing by Justice Bassel

Birdwell, J., dissents from the part of this court’s judgment that deletes the reparations 

award, for the reasons articulated by Gabriel, J., in her dissenting and concurring 

memorandum opinion on rehearing in Maxion v. State, No. 02-18-00176-CR, but 

concurs in the remainder of the judgment. Gabriel, J., although not a panel member, 

joins Birdwell, J., in accordance with Tex. R. App. P. 47.5.

ZACHARY AUGUSTE KITCHEN, Appellant

V.

THE STATE OF TEXAS
2

MEMORANDUM OPINION ON REHEARING

On December 31, 2018, this court issued an opinion modifying the trial court’s 

judgment to delete $420 in reparations that were not supported 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 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 Zachary Auguste Kitchen challenges the 

reparations ordered in the judgment adjudicating his guilt. Because the record does 

not support the reparations, we delete them from the order to withdraw funds and 

from the judgment and affirm the judgment as modified.

II. Background

In August 2017, the trial court placed Kitchen on nine years’ deferredadjudication community supervision. See Tex. Penal Code Ann. § 22.04(f). Kitchen’s 

conditions of community supervision required him to pay a supervision fee of $60 

monthly beginning September 15, 2017. In December 2017, the State filed a petition 
3

to proceed to adjudication, alleging that Kitchen had violated five conditions of his 

community supervision. On July 3, 2018, the trial court held a hearing at which the 

State waived paragraph two of its petition, and Kitchen pleaded “true” to the violation 

listed in paragraph one of the State’s petition. The trial court accepted Kitchen’s plea 

of “true” to paragraph one and also found paragraphs three through five to be true, 

adjudicated him guilty of the original offense of injury to a child causing bodily injury, 

and sentenced him to ten years’ imprisonment. The judgment orders Kitchen to pay 

reparations in the amount of $420.

III. Reparations Not Supported by the Record

In his sole point on appeal, Kitchen argues that the trial court violated his right 

to due process when it imposed probation fees as reparations in the judgment.1

 

Kitchen 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.2

 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).

 1

Kitchen’s brief also argues that the trial court should not have imposed money 

“Due to CSCD” as reparations. Because the record does not reflect that any money 

“Due to CSCD” was imposed as reparations, we need not address this argument.

2

Kitchen’s brief acknowledges that this court has held contrary to his argument.
4

Because the statement of an issue is treated as covering every subsidiary 

question that is fairly included, we broadly construe Kitchen’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). 

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 
5

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 

balance sheet or both—when they reflect the same amount—to determine the 

amount of probation fees due, as exemplified in the following cases.

A. Summary of Prior Holdings3

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 

 3

Each of the following cases dealt with reparations assessed in Tarrant County.
6

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 

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 
7

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.

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 
8

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.

B. Analysis

Here, the July 3, 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 

one week later on July 10 and is attached to this opinion as Appendix B, shows $420 

in probation fees. The “List of Fee Breakdowns,” which was prepared on July 11 and 

is attached to this opinion as Appendix C, shows that Kitchen 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 July 3, 2018, the day of Appellant’s adjudication, no additional 

costs had been assessed when the Certified Bill of Costs was created. 

Then, on July 10, 2018, the Community Supervision and Corrections 

Department calculated Appellant’s probation fees arrears at $420.00 and 

converted them to Reparations. Finally, when the district clerk pulled 

the records and created the List of Fee Breakdowns, on July 11, 2018, 

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 
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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.4

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 Kitchen’s total exposure for probation fees was $600, which was 

calculated by multiplying $60 per month times the ten months (from September 15, 

2017 through June 15, 2018) that he was on probation. But the amount of 

outstanding probation fees shown on the CSCD balance sheet is $420. The State 

concludes,

 4

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 

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).
10

While there is no specific evidence regarding what months Appellant did 

or did not pay, this document supports that Appellant owed $420 in 

probation fees because he did not pay off the entire $600 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.5

 

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 Kitchen’s sole 

point.

 5

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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IV. Conclusion

Having sustained Kitchen’s sole point challenging the reparations ordered in 

the judgment, we delete $420 from the order to withdraw funds so that it reflects that 

$0 should be withdrawn from Kitchen’s inmate trust account, and we delete the line 

in the judgment that states, “REPARATIONS IN THE AMOUNT OF $420.” See id.

(striking reparations when the only evidence of probation fees was contradictory).

We also note that the judgment of adjudication contains nonreversible clerical 

errors. The trial court attempted to correct these errors in a judgment nunc pro tunc, 

but that document also contains clerical errors. The judgment adjudicating guilt 

states, “While on community supervision, Defendant violated the terms and 

conditions of community supervision as set out in the State’s ORIGINAL Motion to 

Adjudicate Guilt as attached: PARAGRAPHS ONE, TWO, THREE[,] AND 

FOUR.” The judgment nunc pro tunc states, “While on community supervision, 

Defendant violated the terms and conditions of community supervision as set out in 

the State’s ORIGINAL Motion to Adjudicate Guilt as attached: PARAGRAPHS 

THREE, FOUR, AND FIVE.” As set forth above, the record from the adjudication 

hearing reflects that the trial court accepted Kitchen’s plea of “true” to paragraph one 

and also found paragraphs three through five to be true. This court has authority to 

modify incorrect judgments when the necessary information is available to do so. See

Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). 

Because the necessary information is available here, we modify the judgment nunc pro 
12

tunc to state, “While on community supervision, Defendant violated the terms and 

conditions of community supervision as set out in the State’s ORIGINAL Motion to 

Adjudicate Guilt as attached: PARAGRAPHS ONE, THREE, FOUR, AND FIVE.” 

See Norris v. State, No. 06-16-00151-CR, 2017 WL 1536200, at *1 (Tex. App.—

Texarkana Apr. 27, 2017, pet. ref’d) (mem. op., not designated for publication) 

(modifying judgment nunc pro tunc that contained clerical error); Wiley v. State, 

No. 03-14-00563-CR, 2015 WL 3453891, at *2 (Tex. App.—Austin May 27, 2015, no 

pet.) (mem. op., not designated for publication) (modifying judgment adjudicating 

guilt to correctly identify the paragraphs of the State’s motion to adjudicate that the 

trial court found appellant had violated).

As modified, we affirm the trial court’s judgment adjudicating guilt and the 

judgment nunc pro tunc.

/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