## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

_______________________________

06

- 20

- 00057

- CR

_______________________________ MEKA LOVELL SPENCER , Appellant

V. THE STATE OF TEXAS , Appellee
On Appeal from the 369th District Court Cherokee County, Texas Trial Court No. 20067

Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Chief Justice Morriss2 

### ME MORANDUM OPINION On May 5, 2016, Meka Lovell Spencer pled guilty to burglary of a habitation, the adjudication of his guilt was deferred, and he was placed on community supervision. The order of deferred adjudication also assessed Spencer $360.00 for court costs, $1,500.00 for restitution to the victim, and $450.00 for court

- appointed attorney fees. On February 13, 2020, Spencer pled true to the State’s allegations in its motion to revoke community supervision, and after an evidentiary hearing, the trial court revoked his deferred adjudicati on community supervision, adjudicated his guilt, sentenced Spencer to fifteen years ’ incarceration , and assessed him $917.00 for court costs and $500.00 for court

- appointed attorney fees
. Spencer’ s appellate counsel filed a brief that outlined the procedur al history of the case, provided a detailed summary of the evidence elicited during the trial court proceedings, and stated that counsel found no meritorious issues to raise on appeal. 1 P rovid ing a professional evaluation of the record demonstrating why there are no arguable grounds to be advanced , counsel has m et the requirements of Anders v. California
. Anders v. California , 386 U.S. 738, 743

– 44 (1967); In re Schulman , 252 S.W.3d 403, 406 (Tex. Crim. App. 2008) (orig. proceeding); Stafford v. State , 81 3 S.W.2d 503, 509

– 10 (Tex. Crim. App. 1991); High v. State , 573 S.W.2d 807, 812

– 13 (Tex. Crim. App. [Panel Op.] 1978).

1 Originally appealed to the Twelfth Court of Appeals in Tyler, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See T EX . G OV ’ T . C ODE A NN . § 73.001. We are unaware of any conflict between prece dent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See T EX . R. A PP . P. 41.3.3

Spencer’s c ounsel filed a motion with this Court seeking to withdraw as counsel in this appeal and provided Spencer with a copy of the brief, the appellate record, and the motion to withdraw. His c ounsel also informed Spencer of his right to review the record and fi le a pro se response. On July 8, 2020, Spencer filed a pro se response to his counsel’s Anders brief; however, that response failed to raise any viable appellate issues
. We have reviewed the entire appellate record and have independently determined that no reversible error exists. See Bledsoe v. State , 178 S.W.3d 824, 826

– 27 (Tex. Crim. App. 2005). However, in Anders cases, appellate courts “ have the authority to reform judgments and affirm as modified in cases where there is nonreversible error. ” Ferguson v. State , 435 S.W.3d 291, 29 3 (Tex. App.

— Waco 2014, pet. struck) (comprehensively discussing appellate cases that have modified judgments in Anders cases). The record shows that the judgment adjudicating guilt assessed Spencer $500.00 in fees for his court
- appointed attorney. Under Article 26.05(g) of the Texas Code of Criminal Procedure, a trial court has the authority to order the reimbursement of such fees only if “ the judge determines that a defendant has financial resources that enable the defendant to offset in part or in whole the costs of the legal services provided, including any expenses and costs. ” T EX . C ODE C RIM P ROC . A NN . art. 26.05(g) (Supp.). “ [T]he def endant ’ s financial resources and ability to pay are explicit critical elements in the trial court ’ s determination of the propriety of ordering reimbursement of costs and fees ” of legal services provided. Armstrong v. State , 340 S.W.3d 759, 765

– 66 (Tex. Cr im. App. 2011) (quoting Mayer v. State , 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)).4

The record establishes that Spencer is indigent. Once a defendant is found to be indigent, he “ is presumed to remain indigent for the remainder of the proceedings in the case unless a material change in the defendant ’ s financial circumstances occurs. ” T EX . C ODE C RIM . P ROC . A NN . art. 26.04(p) (Supp.); Walker v. State , 557 S.W.3d 678, 689 (Tex. App.

— Texarkana 2018, pet. ref ’ d). There is no evidence in th e record showing, and no determination or finding by the trial court, that Spencer had financial resources or was otherwise able to pay the court

- appointed attorney fees. Therefore, the assessment of attorney fees was erroneous and should be removed. 2 C ates v. State , 402 S.W.3d 250, 252 (Tex. Crim. App. 2013)
. Also, under the section entitled “Plea to Motion to Adjudicate,” the judgment adjudicating guilt reflects the plea as “NOT TRUE.” However, the record shows that Spencer pled true to each of the al legations in the State’s motion to revoke community supervision. We have the authority to modify the judgment to make the record speak the truth when it has been brought to our attention by any source. T EX . R. A PP . P. 43.2(b); French v. State , 830 S.W.2d 607, 609 (Tex. Crim. App.

2 The judgment adjudicating guilt also assessed Spencer $917.00 for court costs. The certified bill of costs shows that this amount included $450 .00 for court

- appointed attorney fees, which is the same amount of court

- appointed attorney fees assessed in the order of deferred adjudication. Complaints regarding the imposition of court costs in an order of deferred adjudication are required to be ass erted in a timely appeal of that order. See Perez v. State , 424 S.W.3d 81, 86 (Tex. Crim. App. 2014). This includes complaints about the assessment of court

- appointed attorney fees. Wiley v. State , 410 S.W.3d 313, 318 (Tex. Crim. App. 2013). If a defen dant has knowledge of the imposition of court

appointed attorney fees in a deferred adjudication order and fails to make a timely appeal of that order, he forfeits any complaint about court

- appointed attorney fees assessed in the order. Riles v. State , 45 2 S.W.3d 333, 337 (Tex. Crim. App. 2015); Wiley , 410 S.W.3d at 318, 321. Consequently, he may not assert the complaint in an appeal from a judgment adjudicating his guilt. Riles , 452 S.W.3d at 337; Wiley , 410 S.W.3d at 321. In this case, the order of def erred adjudication is embossed with Spencer ’ s right thumbprint. In addition, Spencer signed an order imposing conditions of community supervision, which included Condition 10, that required him to pay $360.00 in court costs an d $450.00 in attorney fees. Spencer ’ s handwritten initials also appear beside Condition 10. Spencer did not challenge the assessment of attorney fees on direct appeal of the order of deferred adjudication. On this record , we conclude that Spencer was aware that he was required to p ay the court costs and court
- appointed attorney fees, and any complaint regarding th o se assessments was forfeited. See Riles , 452 S.W.3d at 338; Wiley , 410 S.W.3d at 320

– 21. Consequently, the certified bill of costs properly included the $450.00 in court

appointed attorney fees assessed in the order of deferred adjudication.5

1992). “ Our authority to reform incorrect judgments is not dependent on the request of any party, nor does it turn on a question of whether a party has or has not objected in trial court; we may act sua sponte and may have a dut y to do so. ” Rhoten v. State , 299 S.W.3d 349, 356 (Tex. App.

— Texarkana 2009, no pet.) (citing Asberry v. State , 813 S.W.2d 526, 531 (Tex. App.

— Dallas 1991, pet. ref ’ d)); see French , 830 S.W.2d at 609. Therefore, we will modify the judgment to reflect Spe ncer’s plea. The district clerk has also supplemented the clerk’s record with a certified bill of costs totaling $917.00. The bill of costs includes entries, inter alia , of $56.00 for “Criminal Clerk,” $180.00 for “Criminal Sheriff’s Service Fee,” $10.00 for “ELECTRONIC FILING FEE (CRIMINAL),” and $5.00 for “Judicial & Court Personnel Training.” “ Only statutorily authorized court costs may be assessed against a criminal defendant .” Johnson v. State , 423 S.W.3d 385, 3 89 (Tex. Crim. App. 2014) (citing T EX . C ODE C RIM . P ROC . A NN . art. 103.002)
. On appeal, “ we review the assessment of court costs
. . . to determine if there is a basis for the cost .” Id . at 390. Article 102.005(a) of the Texas Code of Criminal Procedure provide d, as applicable to his case, that “[a] defendant convicted of an offense in a . . . district court shall pay for the services of the clerk of the court a fee of $40.” Act of May 29, 1995, 74 th Leg. , R.S., ch. 764, § 1, 1995 Tex. Gen. Laws 3969, repealed by Act of May 23, 2 019, 86th Leg., R.S., ch
. 1352, § 1.19(2), 2019 Tex. Sess. Law Serv. 3982, 3993
. 3 Since Article 102.005(a) authorizes only a $40.00 fee for a criminal district clerk fee, the bill of cost must be modified to reflect the fee of $40.00 authorized by the

3 Article 102.005 was repealed in 2019 for offenses committed on or after January 1, 2020, but remains in effect for those offenses committed before that date. See Act of May 23, 2019, 86 th Leg., R.S., ch
. 135 2 , §§ 1.19(2), 5.01 , 2019 Tex. Sess. Law Serv. 3982, 3993, 4035

– 36. Since the offense in this case was committed before January 1, 2020, the forme r article applies. All references to Article 102.005 herein refer to the former article.6

statute. See Johnson , 423 S.W.3d at 3 89; Hubbard v. State , No. 02

- 13

- 00300

- CR, 2014 W L 1767475, at *1 (Tex. App.

— Fort Worth May 1, 2014, no pet.) (mem. op., not designated for publication)
. 4 In response to our request to the d istrict c lerk to supplement the record with any filing that supported the fees charged for “Criminal Sheriff’s Ser vice Fee,” we were provided a revised certified bill of costs. The revised bill of costs itemized this $180.00 fee as $60.00 for “02.22.2016

— Court Costs,” $60.00 for “10.20.2016

— Fiat Issued,” and $60.00 for “10.21.2019

— Bench Warrant Issued.” The clerk’s record reflects that the only item filed on or around February 22, 2016, was the indictment. We have found no statutory authority that allows charging a criminal defendant a sheriff’s service fee related to the filing of an indictment. Consequently, the bill of cost must be modified by striking this $60.00 charge. See Johnson , 423 S.W.3d at 3 89; Owen v. State , 352 S.W.3d 542, 547

– 48 (Tex. App.

— Amarillo 2011, no pet.); Pearce v. State , No. 12

- 16

- 00320

- CR, 2017 WL 3405206, at *1

– 2 (Tex. App.

— Tyler Aug. 9, 2017, no pet.). Article 102.011(a) of the Texas Code of Criminal Procedure authorizes charging a criminal defendant “$50 for executing or processing an issued arrest warrant, capias, or capias pro fine.” T EX . C ODE C RIM . P ROC . A NN . art. 102.011(a)(2). The clerk’s record reflects that on October 14, 2016, the trial court executed a fiat directing the district clerk to issue a notice to Spencer commanding him to appear at a hearing on the State’s motion to revoke community supervisio n and to issue a capias for Spencer’s arrest. The record also shows that the district clerk issued a

4 “ Although unpublished opinions have no precedential value, we may take guidance from them ‘ as an aid in developing reasoning that may be employed. ’” Rhymes v. State , 536 S.W.3d 85, 99 n.9 (Tex. App.

— Texarkana 2017, pet. ref ’ d) (quoting Carrillo v. State , 9 8 S.W.3d 789, 794 (Tex. App.

— Amarillo 2003, pet. ref ’ d)).7

notice of hearing to Spencer on October 20, 2016, but it does not show that a capias warrant was issued. We have found no statutory authority that allows charging a criminal defendant a sheriff’s service fee for the issuance of a fiat or for the issuance of a notice of hearing. Consequently, the bill of cost must be modified by striking this $60.00 charge. See Johnson , 423 S.W.3d at 3 89; Owen , 352 S.W.3d at 547

– 48; Pearce , 2017 WL 3405206 , at *1

– 2. Likewise, the record reflects that on October 21, 2019, the State filed an application for issuance of a bench warrant. However, the record does not show that a bench warrant was ever issued. Consequently, th e bill of cost must be modified by striking this $60.00 charge. See Johnson , 423 S.W.3d at 3 89; Owen , 352 S.W.3d at 547

– 48; Pearce , 2017 WL 3405206 , at *1

– 2. Section 51.851 o f the Texas Government Code authorizes charging a person convicted in district co urt $5.00 for an electronic filing fee. T EX . G OV ’ T . C ODE A NN . § 51.851(d) (Supp.)
. Since the bill of costs reflects a charge that exceeds the authorized amount, it must be modified to reflect the charge of $5.00 authorized by the statute. See Johnson , 423 S.W.3d at 3 89; Cheeks v. State , No. 12

- 17

- 00027

- CR, 2018 WL 1736798, at *5 (Tex. App.

— Tyler Apr
. 11, 2018, no pet.) (mem. op., not designated for publication)
. Former Section 133.102 of the Texas Local Government Code provided that a defendant convicted of a felony shall pay a consolidated fee of $133.00 in addition to other court costs. Act of June 2, 2003, 78 th Leg., R.S., ch. 209, § 62(a), s ec. 133.102(a)(1), 2003 Tex. Gen. Laws, 979, 996 (amended 2019) (current version at T EX . L OC . G OV ’ T . C ODE § 133.102 (a)(1)(Supp.) )
. 5 That

5 Section 133.102(a)(1) was amended in 2019 and raised this fee to $185.00 for offenses committed on or after January 1, 2020, but the former fee of $133.00 remains in effect for those offenses comm itted before that date. See Act of8

article also required the comptroller to allocate the court costs received from the consolidated fees to certain accounts and funds, including the account for judicial and court personnel training, “ so that each receiv es to the extent practicable, [ us ing ] historical data as applicable, the same amount of money the account or fund would have received if the court costs for the accounts and funds had been collected and reported separately .” Act of May 18, 2017, 85 th Leg., R.S., ch. 966, § 1,
s ec. (e)(10), 2 017 Tex. Gen. Laws 3911 (amended 2019) (current version at T EX . L OC . G OV ’ T . C ODE § 133.102(e)(10)(Supp.))
. Since S ection 133.102 allocated a percentage of the consolidated fee for “judicial and court personnel training,” a separate fee may not be assessed for judicial and court personnel training. See Jackson v. State , 562 S. W .3d 717, 723

– 24 (Tex. App.

— Amarillo 2018, no pet.). Consequently, the bill of costs must be modified by striking the fee charged for “Judicial & Court Personnel Training.” Id
. The bill of costs reflects a total cost of $917.00. However, the total authorized costs that are supported by the record total $711.00. Consequently, we modify the bill of costs to reflect a total cost of $711.00. The trial court’s judgment adjudicating guil t assessed court costs of $917.00. The trial court also entered an order to withdraw funds for the assessed fees in the amount of $917.00. Since the total authorized costs that are supported by the record total $711.00, the trial court’s judgment and ord er to withdraw funds must be modified to reflect costs assessed in the amount of $711.00.

May 23, 2019, 86 th Leg., R.S., ch 135 2 , §§ 1.03(a)(1), 5.01, 2019 Tex. Sess. Law Serv. 3982

– 83 , 4035

– 36. Since the offense in this case was committed before January 1, 2020, the former article applies. All references to Section 133.102(a)(1) herein refer to the former article.9

Disposition We modify the judgment adjudicating guilt by deleting the court

- appointed attorney fees, by changing the assessed court costs to $711.00, and by changing the plea in the section entitled “Plea to Motion to Adjudicate” from “NOT TRUE” to “TRUE.” We modify the order to withdraw funds to reflect costs in the amount of $711.00. We modify the bill of costs by changing the cost for “Criminal Clerk” to $40.00, b y deleting the entry for “Criminal Sheriff’s Service Fee,” by changing the cost for “ELECTRONIC FILING FEE (CRIMINAL)” to $5.00, by deleting the entry for “Judicial & Court Personnel Training,” and by changing the “TOTAL COST OF CAUSE” to $711.00. In the Anders context, once we determine that the appeal is without merit, we must either dismiss the appeal or affirm the trial court ’ s judgment. See Anders , 386 U.S. 738. Therefore, w e affirm the trial court’s judgment, as modified. 6

Josh R. Morriss, III Chief Justice Date Submitted : August 11, 2020 Date Decided: August 17 , 2020 Do Not Publish

6 Since we agree that this case presents no reversible error, we also, in accordance with Anders, grant counsel ’ s request to withdraw from further representation of Appellant in thi s case. See Anders , 386 U.S. at 744. No substitute counsel will be appointed. Should Appellant desire to seek further review of this case by the Texas Court of Criminal Appeals, Appellant must either retain an attorney to file a petition for discretiona ry review or file a pro se petition for discretionary review. Any petition for discretionary review (1) must be filed within thirty days from either the date of this opinion or the date on which the last timely motion for rehearing was overruled by this C ourt, see T EX . R. A PP . P. 68.2, (2) must be filed with the clerk of the Texas Court of Criminal Appeals, see T EX . R. A PP . P. 68.3, and (3) should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure, see T EX . R. A PP . P. 68.4.