## In the Court of Appeals Second Appellate District of Texas at Fort Wort h

___________________________ No. 02

- 19

- 00029

- CR

___________________________

On Appeal from the 396th D istrict Co urt Tarrant County, Texas Trial Court No. 1547033D
Befo re Kerr, Bassel, and Womack, JJ. Memorandum Opinion by Justice Kerr Justice Bassel concurs without opinion



### R OBERT 

### E. S ANDERS 

### , Appellant
V 

### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OP INION In a sin gle point , Appellant Robert E
. Sanders asserts that the trial court violated his due

- process rights by ordering him to pa y $500 in reparations because the record does n ot support reparations
. We will affirm t he judgment as modified. B ackground In June 2018, Sanders pleaded guilty to thef t of property grea ter than $2, 500 but les s th an $30,000 pur su ant to a plea

- bargain agreem ent . See Tex. P enal Code Ann. § 31.03( e )(4)(A)
. I n accordance with the plea agreement, t he trial court p laced him on t wo years ’ deferred

- adjudication community supervision and imposed a $2 00 fine. San ders ’ s community

- supervision conditions includ ed a $20 c rime

- stopper s fee and a $60

- per
- month probation fee
. 1 See Tex. Code Crim. Proc. Ann.
art s . 42 A.301(b)(2 0) (authorizing crime

- stoppers fee) , 42A.652(a) (mand ating

as ses s ment of mon thl y pr obation fees). In December 2018, the State petitioned to proceed to ad judication , ultimately alleging that Sanders committed 11 communi ty

- s upe rvision

- conditio n violati ons . 2 At the January 2019 hearing on the petition, Sande rs pleaded “ true ” to seven of those violati ons . T he trial court found that those v iolations were true, adjudicated S anders

1 The terms “ probation” and “ co mm unity supervision ” are synonymous a nd are g enerally used interchangeably. Hong p athou m v. State , Nos. 02

- 18

- 00061

- CR, 0 2

- 18

- 00062

- CR, 02

- 18

- 00063

- CR, 2019 WL 24 32152, at * 1 n. 1 (T ex. App.

— Fort Worth June 6, 2019, no pet
. )
. 2 T he State did not allege Sand ers ’ s fail i ng to pay fees as a violation.3 guilt y, and sentenced him to one year ’ s co nfine ment . The trial court ’ s judgment adjudicating gui lt ordered Sanders to pay $500 in re par ation s . Sanders has appealed
. Analysis I n his only point, Sanders asserts that because the record doe s not support the reparations , the trial court violated his due

- pro c ess rights by imposing them , and therefore, the repar a tions mu s t b e deleted from the judgment and the attached order to withdraw funds. 3 The balance sheet of the Tarrant County Com munity S u pervision and Correcti on Department ( C SCD) shows that Sanders owed $500 in reparations , consisting of $ 420 in “PROBATI ON FEE S ” a nd $80 “ DUE TO CSCD
. ” Sanders first a rgu es that the reparations amount cannot be upheld becaus e , in co ntra st to the b alance she e t , the distri ct clerk ’ s certified bill of costs lists “ $0.00 ” as court costs and the district clerk ’ s “ L is t of Fee Br e akdowns ” show s that the “ Probation Fees R emain ing ” and th e “ Due to C SCD R emaining ” are “ 0. 00
. ” Sanders asserts that “ [o] n

3 Sanders reli es heavily on our prior opinions in Ma x

ion v. Sta te , No. 02

- 1 8

- 00176

- CR, 20 19 WL 1495 04 8 (Tex. A p p.
— For t Wor th A pr. 4 , 20 19) (m em. op. on reh ’ g, not designated for publicat ion) , and Ki t chen v. State , No. 02

- 18

- 00374

- CR , 2019 WL 1495713 (Tex. App.

— Fort Worth Apr. 4 , 2019 ) (mem. op. on reh ’ g, not designated for public at ion)
. We are not bound by the se op inions beca use i n each c ase , w e g ranted the State ’ s motion for en banc recon sideration and withdrew our prior opinion and judgment
. See Ma xion v. State , No. 02

- 18

- 00176

- CR , 2 019 WL 3269324, at *1 (Tex. A pp.
— F o rt Worth Ju ly 18, 2019, p et. f iled ) (me m. op. on en banc r econsiderat io n , no t d e signated for publica tion ); K itchen v. State , No. 02

- 18

- 00374

- CR, 2019 WL 3069871, at *1 (Tex. A pp.
— Fort Worth July 1 5 , 2019, pet. filed ) (op. on en banc reconsiderat ion ).4 the face of the s e docu ments, there is a contra diction in the amount of probation fees that remain outstandi n g. ” The di strict clerk ’s certified bill of costs assessed on ly court costs and did not address reparations. 4 The CSCD balance s heet shows that Sanders owed $ 420 in probation fees and $80 “ DUE TO CSCD , ” both o f w h i c h were categorize d as reparat ion s. See Ay a l a v. State , No. 02

- 17

- 00385

- CR, 2018 WL 2727954, at *1 (Tex. A p p.
— Fort Worth Jun e 7, 2018 , n o pet. ) (mem. op., not designat ed for public ation ) (recog nizing that C S CD cate g orizes community

- supervision and crime

- stopper fees as reparations)
. The dis tric t cl erk ’s list of fee breakdowns reflects that no probation fees

or other CSCD amo unts remained due because they had been categorized as reparations on th e C SCD balanc e sheet
. See Lyle v. State , No. 02

- 17

- 00227

- CR, 2019 WL 3024480, at *3 ( Tex. App.

— Fo rt Worth July 11, 2019, no pet. h.) (mem. op., not designated for publication); see also Hong p athou m , 2019 WL 2432152, at *3 (“ Viewing [ t he b alance s heet and l ist of fee br e akdowns] collectively and in the light most favorable to the reparation s award, Hongpathoum ’ s unpaid proba tion fees
were tra nsferred from one ledger
. . . to another ledger
. . . , which explains why the ‘List of Fee Bre akdo wns’ sho ws a zero balance.”); A y ala , 2018 WL 2727954, at *1 ( “Because these [unpaid community

- supervision , crime

- stoppers, and family

violence ] f ees were ch aracterized as repa rations in CSCD ’ s balance sheet, the clerk ’ s

4 According to th e State, in Ta rrant C o unty, “ the bills of cost no lo nger ref e rence p r ob ation fees a nd only include court costs. ”5 fee

- breakdown li st cor rectly not ed t hat ther e were no amounts due a s fees.” ). Thus, the district cler k ’ s bill of costs and fee

- breakdown list do not conflict with CSCD ’ s b alance sheet
. Next, Sanders ar gues that because there is no record evidence demonstrating what fees he pai d and what he did not pay , the t rial court ’ s i m posing reparations violated his due

- proc ess rights , and the reparations am ount must thus be del eted from the judgment
. Unpaid probation fees may be taxed against a defendant as reparations. See Zamar ripa v. St ate , 50 6 S.W. 3d 715, 71 6 (Tex. App.

— Fort Worth 2016, pet. ref’d). T his is true even i f , as in this case, the State did not allege Sanders ’ s failure to pay probation fees as a ground for revocat ion. See Tucker v. State , Nos. 02

- 15

- 00265

- CR, 02

- 15

- 00266

- CR, 2016 WL 74208 7, at *1 ( Tex. App.

— Fort Wo rth Fe b . 25, 2016, pet. ref’d) (mem. op., not designated for publication) ; Edw ards v. State , Nos. 09

- 13

- 00360

- CR, 09

- 13

- 00361

- CR, 2014 WL 1400747, at *2 (Tex. App.

— Beaumont Apr. 9, 2014, no pet.) (mem. op., not designated for pub li cati on)
. We review the assessme n t of
costs “ to det ermine if there is a bas is fo r the cost, ” no t whether the evidence was sufficient to prove each assessed cost. Johnson v. Sta t e , 423 S.W.3d 385, 390 ( Tex . Crim. A pp. 2014).6 Here, CSCD ’ s balan ce sheet is s uffici ent to support the $ 420 in p robation fees ordered as reparatio ns . 5 See Hong p athou m , 2019 WL 2432152, at *3
. B u t the $80 catego rized as “ D UE TO C SCD ” is another matter
. We have repeatedly hel d that

an amount stated as being “ due to C SCD ” with no furt h er identif ying information in the record gives us no basis to determine the authority for the asse ssm ent. 6 Se e, e.g. , Agui rre v. State , No. 02

- 1 8

- 00117

- C R , 2018 WL 6844137, at *3 (Tex . A p p.
— Fort Worth Dec. 31, 201 8 , pet . ref ’ d) (mem. op., not desi gnated for pub licat ion ) ; see also D emerson v. State , No. 02

- 18

- 00003

- CR, 2018 WL 3580 893, at *3 (Tex. A p p.
— Fort Worth July 26, 2018, n o pet.) (mem. op ., no t designated for publicat ion) ( colle c ting cases). Regarding the se re maining reparations, the State asserts that $20 of the $80 “ DUE TO CSCD ” wa s for the statutor ily authorized crime

- st oppers fee that the trial court order ed Sanders to pay as part of his community

- supervision condition s . See Tex. Code Crim. Proc. Ann. art . 42 A.301(b)(2 0)
. The record reflects t hat wh e n the trial court deferred a d j u d icating Sanders ’ s guilt, it ordered him to pay a $20 crime

-

5 The trial court place d Sanders on deferred

- adjud ication community supervis ion on June 15, 2018 , and ordered him to pay a mont h ly $6 0 probation fe e beginning July 15, 2018
. Se e g enerally Tex
. Co de Cr im. P ro c. Ann . art . 42A.652(a) (mand ating as sess ment of mon thly probation fees)
. T he trial court revo ked Sander s ’ s community supervision and a djudged him guilty on January 18, 20 19
. T h e r e f o r e , S a n d e r s a c c r ued probation fees f or seven months, an d a cc ording to C S CD, h e s till owed those fees ( 7 mon ths x $60 per month , or $ 420 ) at the time of his adjudication.
6 It seems to us that such information could easily be made part of the r ecord
.7 stoppers fee “ to and through ” CSCD as a condition of his community supe rvision. Sanders does no t contest that he owe s the crim e - st oppers fee o r that the fee i s u npa i d , and the record does not show that he paid the fee
. Accordin gly , the record does reflect a basis for $20 of the $80 “ DUE TO C SCD
. ” See Ayala , 2018 WL 272 7954, at *1 (concluding that crime

- stopper s fee and family

- viol ence fee ordered as co mmunity

supe rvis ion c o ndi t ions co n stituted amou n t “ due to CSCD ” ) ; see also Tayl or v . State , No. 08

- 1 9

- 00032

- CR, 2019 WL 1923006, at *1 (Tex. App.

— E l Paso A pr. 30, 2019, no pet.) (mem. op., not designated for publication) ( h olding that the reparations
assessment in the amount of $1 80 “ d ue to C SCD ” was p a rtially s upported by the record because t he tr ial cou rt orde red a $50 crime

- stoppers fee and a $100 family

violence fee as community

- supe rvision condition s , t here was no evidence that appellant had paid anything to CSCD for those fe es , and appell ant did n o t argue otherwise )
. The State concedes that the record does not support the r emaining $60 purported ly “ due to C SCD
. ” We have reviewed the record and agree with the State
. Cf. Riojas v. State , No
. 02

- 18

- 000 26

- CR , 2018 WL 35 80 897, at *2 ( Tex. App.

— F o rt W ort h July 26, 2018 , no pet.) (mem. op., no t designate d for publication) ( “ There i s nothing in the record to indicate what [the $65 ‘ DUE TO C SCD ’ ] is or why i t is in that amount. ” ). According l y , we sustain Sanders ’ s poi nt to the e x te nt th at we w ill de lete $60 fr o m the $500 reparations amount , leaving a total of $440 in r eparations
. We over rule the remain der of his sole point
.8 Conclusion Having sustain ed Sanders ’ s sole point in pa rt, we mo dify the judgment to assess $440 in reparati on s . We additi onally mo dify t he order to with draw funds to reflect that the amount of “ [c]ourt costs , fee s and/or fines and / or restitution ” incurred i s $4 4 0
. W e affirm th e trial court ’ s judgment as modified. S ee T ex. R. App. P. 43.2( b).

/s/ Elizabeth Kerr El izabeth Kerr Justice Do Not Publish T ex. R. Ap p. P. 47.2(b) De livered: August 26, 2019