In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-19-00123-CR
DOMINIQUE SHAQUILLE HARVEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th District Court
Gregg County, Texas
Trial Court No. 43683-B
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Dominique Shaquille Harvey had received deferred adjudication for injury to a child and
had been placed on community supervision for ten years and assessed $314.00 for court costs,
$153,797.05 for restitution to the victim, and a $250.00 fine. On June 19, 2019, Harvey pled true
to the State’s allegations contained in its motion to revoke community supervision, and, after an
evidentiary hearing, the trial court revoked his deferred adjudication community supervision,
adjudicated his guilt, and sentenced Harvey to fifty years’ incarceration. The written judgment
adjudicating guilt attached a certified bill of costs in the total amount of $154,232.05, including
in its itemized costs $250.00 for “Fine,” $153,603.05 for “Restitution,” and $130.00 for
“Sheriff’s Fees.”
Harvey’s appellate counsel has filed a brief that outlined the procedural 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. Providing a professional
evaluation of the record demonstrating why there are no arguable grounds to be advanced,
counsel has met the requirements of Anders v. California. See 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, 813 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).
Harvey’s counsel also filed a motion with this Court seeking to withdraw as counsel in
this appeal and provided Harvey with a copy of the brief, the motion to withdraw, and a pro se
form for access to the appellate record. Counsel also informed Harvey of his right to request and
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review the record and to file a pro se response. On March 19, 2020, Harvey filed a pro se motion
for access to the appellate record. In response, Harvey’s appellate counsel mailed a complete
paper copy of the appellate record, and this Court mailed copies of the digital record exhibits to
Harvey, and on March 23, 2020, this Court granted Harvey’s motion and set May 7, 2020, as the
deadline for Harvey to file his response to his counsel’s Anders brief. On July 10, 2020, this
Court extended the due date for Harvey’s pro se response to August 10, 2020. By letter dated
August 21, 2020, this Court notified Harvey that this cause would be set for submission on the
briefs on September 11, 2020. We received from Harvey neither a pro se response nor a motion
requesting an extension of time in which to file such a response.
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,
294 (Tex. App.—Waco 2014, pet. struck) (comprehensively discussing appellate cases that have
modified judgments in Anders cases).
In this case, the order of deferred adjudication included the assessment of a $250.00 fine
and $153,797.05 in restitution. However, when the trial court adjudicated Harvey’s guilt and
revoked his community supervision, it did not orally pronounce any fine or restitution when it
sentenced him. Nevertheless, the written judgment adjudicating guilt attached a certified bill of
costs that included itemized entries of $250.00 for “Fine” and $153,603.05 for “Restitution.”
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In a deferred adjudication order, no sentence is imposed on the defendant. See Taylor v.
State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004). When the defendant’s guilt is later
adjudicated, the judgment adjudicating guilt sets aside the order deferring adjudication, including
any fine or restitution imposed in that order. Id.; see Burt v. State, 445 S.W.3d 752, 756–57
(Tex. Crim. App. 2014) (restitution, like his sentence, must be pronounced in the defendant’s
presence). Consequently, when a trial court adjudicates the defendant’s guilt, his sentence, along
with any fine or restitution, must be pronounced in his presence. See Taylor, 131 S.W.3d at 502;
Burt, 445 S.W.3d at 757. When there is a conflict between the oral pronouncement of a sentence
and the written judgment, the oral pronouncement controls. Taylor, 131 S.W.3d at 500. Since
no fine or restitution was pronounced when Harvey was sentenced, we will delete the entries of
$250.00 for “Fine” and $153,603.05 for “Restitution” from the certified bill of costs and the trial
court’s judgment.
The certified bill of costs attached to the judgment adjudicating guilt also includes an
itemized cost of $130.00 for “Sheriff’s Fee.” As may be applicable to this case, 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,” “$35 for
serving a writ not otherwise listed in [the] article,” “$10 for taking and approving a bond,” and
“$5 for commitment or release.” TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(2), (4), (5), (6)
(Supp.). The record in this case shows that the sheriff approved an attorney bail bond on June 6,
2014. This bail bond is also some support that the sheriff both committed Johnson to jail and
released him from jail. The record also shows that an order for arrest was issued by the trial
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court on September 25, 2017, but the record does not show that an arrest warrant was executed
or processed by the sheriff. There is no support in the record of any other circumstance for
which a sheriff’s fee is statutorily allowed. Consequently, we find that the record supports the
imposition of only $20.00 for a sheriff’s fee. Therefore, we will modify the certified bill of cost
and the trial court’s judgment to reflect a sheriff’s fee of $20.00.
The certified bill of costs attached to the judgment of adjudication shows “Total Costs” of
$154,232.05.1 Our deletion of the entries for “Fine” and “Restitution,” and our modification of
the entry for “Sheriff’s Fee” to $20.00 also requires us to modify the total costs to reflect these
modifications. Therefore, we will modify the certified bill of cost and the trial court’s judgment
to reflect “Total Costs” of $269.00.
The judgment adjudicating guilt also has an entry under “Terms of Plea Bargain” that
recites “TEN (10) YEARS DEFERRED ADJUDICATION.” However, there was no plea
bargain in regard to the judgment adjudicating guilt. Consequently, we will modify the judgment
adjudicating guilt by changing the entry under “Terms of Plea Bargain” to “N/A.”
We modify the certified bill of costs and the judgment adjudicating guilt by deleting the
entries of $250.00 for “Fine” and $153,603.05 for “Restitution,” by changing the entry for
“Sheriff’s Fee” to $20.00, and by changing the “Total Costs” to $269.00. We modify the
judgment adjudicating guilt by changing the entry under “Terms of Plea Bargain” to “N/A.”
1
Although the certified bill of costs shows the “Total Costs” to be $154,232.05, the itemized entries on the bill of
costs total $154,234.05.
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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, we
affirm the judgment of the trial court, as modified.2
Josh R. Morriss, III
Chief Justice
Date Submitted: September 11, 2020
Date Decided: September 18, 2020
Do Not Publish
2
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 this 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 discretionary 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 Court,
see TEX. R. APP. P. 68.2, (2) must be filed with the clerk of the Texas Court of Criminal Appeals, see TEX. R. APP.
P. 68.3, and (3) should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure, see
TEX. R. APP. P. 68.4.
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