Affirmed as Modified and Memorandum Opinion filed April 1, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00290-CR
DARRYL EDWARD DAVIS, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court Cause No. 1450074D
MEMORANDUM OPINION
Appellant Darryl Edward Davis, Jr. challenges fines and costs related to his
revoked deferred-adjudication community supervision and attendant conviction for
indecency with a child. See Tex. Penal Code § 21.11. Appellant also challenges his
eight-year sentence.1 We modify the judgment and affirm as modified.
1
This appeal was transferred from the Second Court of Appeals pursuant to a docket equalization
order issued by the Texas Supreme Court. We apply the precedent of that court to the extent
required by Texas Rule of Appellate Procedure 41.3.
BACKGROUND
In 2016 appellant negotiated guilty pleas for aggravated sexual assault of a
child, and two counts of indecency with a child. In exchange for his guilty pleas
appellant received ten years’ deferred-adjudication community supervision. The
deferred adjudication order contained the following “special findings or orders”:
FINE IN THE AMOUNT OF $1,000, ATTORNEY FEES IN THE
AMOUNT OF $3,633.00, AND COURT COSTS IN THE AMOUNT
OF $639.00, PAYABLE TO AND THROUGH THE CRIMINAL
DISTRICT CLERK’S OFFICE OF TARRANT COUNTY, TEXAS.
The trial court certified that the cases involved plea bargain agreements and
appellant had no right of appeal. Appellant did not file a notice of appeal from the
deferred adjudication order.
The State subsequently filed a petition to proceed to adjudication in one of the
indecency with a child counts, in which it alleged that appellant violated the terms
and conditions of his community supervision in that he (1) failed to successfully
complete sex offender treatment; (2) admitted to viewing or possessing sexually
explicit materials during the period of supervision; and (3) admitted to possessing or
operating a cell phone that is capable of internet access without first installing remote
cam monitoring software. Appellant entered pleas of true to the State’s petition. The
trial court admonished appellant that upon his pleas of true the trial court could
assess punishment at between two and ten years in prison. Appellant acknowledged
that he understood the range of punishment and was pleading true because the
allegations were true and for no other reason.
After a hearing, the trial court found the State’s allegations true, adjudicated
appellant’s guilt, and assessed punishment at confinement for eight years in prison.
The trial court assessed a fine of $593.00 and court costs of $654.00. The court
further ordered the payment of reparations in the amount of $4,833.00. Appellant
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did not object to his sentence.
ANALYSIS
In five issues on appeal appellant asserts (1) the trial court violated appellant’s
right to due process when it imposed money “Due to CSCD” and probation fees as
“reparations” in the judgment; (2) the fine assessed in the judgment adjudicating
guilt was not pronounced orally; (3) the trial court erred when it assessed court-
appointed attorney’s fees against appellant; (4) the judgment fails to credit appellant
for court costs already paid; and (5) the sentence assessed is grossly disproportionate
to the offense and therefore violates the United States Constitution’s Eighth
Amendment prohibition against cruel and unusual punishment.
I. Standard of Review and Applicable Law
We review the assessment of court costs on appeal to determine if there is a
basis for the cost, not to determine if there was sufficient evidence offered to prove
each cost. Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014).
II. Probation fees as reparations and money “Due to CSCD”
In appellant’s first issue he asserts the trial court violated his due process
rights by assessing probation fees of $1,230.00 as reparations and ordering appellant
to pay $470.00 “Due to CSCD.” The trial court ordered a total of $4,833.00 paid in
reparations. The record contains a “Revocation Restitution/Reparation Balance
Sheet,” which lists, among other things, “Administrative Financial Obligations” of
$470.00 “Due to CSCD” and $1,230.00 in probation fees.
A. Probation fees
Appellant first asserts that it is a violation of due process to assess probation
fees as “reparations.” The amount of probation fees shown on the balance sheet in
the clerk’s record and in the certified bill of costs from the district clerk is evidence
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supporting the award of probation fees as reparations in the judgment. Zamarripa v.
State, 506 S.W.3d 715, 716 (Tex. App.—Fort Worth 2016, pet. ref’d). In this case,
the $1,230.00 in probation fees appearing on the balance sheet supports the award
of $1,230.00 in probation fees listed as reparations in the trial court’s judgment. See
Kitchen v. State, 594 S.W.3d 429, 430–32 (Tex. App.—Fort Worth 2019, pet. ref’d)
(imposition of unpaid probation fees in judgment adjudicating guilt does not violate
due process).
Appellant candidly admits that the Second Court of Appeals has held contrary
to his argument and he presents the issue here “to advocate for a change or
modification in the current law and to preserve it for further review.” Because this
case was transferred to our court from the Second Court of Appeals, we are bound
to follow that court’s precedent. Tex. R. App. P. 41.3. Following the Second Court’s
authority in Zamarripa, we hold the assessment of probation fees as reparations did
not violate appellant’s due process rights. Zamarripa, 506 S.W.3d at 716. We
overrule the portion of appellant’s first issue in which he challenges assessment of
probation fees.
B. “Money Due to CSCD”
In the second part of appellant’s first issue, he challenges the amount listed as
“Due to CSCD.” The balance sheet in the record lists $470.00 due to CSCD.2 The
State concedes that all but $20.00 of the $470.00 has no basis in the record. See
Lewis v. State, 423 S.W.3d 451, 460 (Tex. App.—Fort Worth 2013, pet. ref’d)
(modifying judgment to delete assessment of amount “Due to CSCD” because the
court was unable to determine the authority for imposition of the fees).
2
CSCD appears to be an acronym for Community Supervision and Corrections
Department.
4
In Lewis, the Second Court of Appeals held that it was unable to determine
from the record what the figures “Due to CSCD” represented or whether they were
included as part of the original conditions of Lewis’s community supervision. Id. at
461. The court, therefore, deleted the amount from the judgment. Id. In this case, the
record is equally unclear as to the authority for the $470.00 amount or whether these
fees were included as part of appellant’s original community supervision.
The State argues, however, that because the Crime Stoppers’ fee of $20.00 is
authorized by the Government Code, that portion of the amount “Due to CSCD”
should be affirmed. The Government Code provides that a defendant “shall pay the
following fees and costs under the Code of Criminal Procedure if ordered by the
court or otherwise required: . . . payment to a crime stoppers organization as
condition of community supervision . . . not to exceed $50[.]” Tex. Gov’t Code §
103.021(6).
When appellant was first placed on deferred-adjudication community
supervision he was ordered to pay a Crime Stoppers’ fee of $20.00 within 30 days
of the order. The State did not allege in its petition to adjudicate that appellant failed
to pay the Crime Stoppers’ fee as a condition of probation, nor is there evidence in
the record that appellant failed to pay this fee. The Second Court of Appeals held
that when the appellate court is unable to determine from where the amount “Due to
CSCD” arises, whether it was included as part of the original conditions, or whether
appellant paid those amounts, the amount should be deleted from the judgment.
Lewis, 423 S.W.3d at 460. In Lewis, the State also made the same argument as it
does here, i.e., the Crime Stoppers’ fee should not be deleted. Id. at 460–61. The
court held, however, that the record did not reflect that appellant had not paid the
Crime Stoppers’ fee and thus also deleted that amount from the judgment.
In this case, we have the same situation as the court had in Lewis. There is
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nothing in our record to indicate that appellant did not comply with the condition of
probation that required him to pay the Crime Stoppers’ fee. We sustain appellant’s
first issue in part and modify the judgment to delete the $470.00 “Due to CSCD.”3
We overrule the portion of appellant’s first issue in which he challenges probation
fees assessed as reparations.
III. Assessment of Fine
In appellant’s second issue he asserts the trial court erred in assessing a fine
in its judgment because the fine was not pronounced orally.
In the order of deferred adjudication, the trial court assessed a $1,000.00 fine.
The judgment adjudicating guilt assessed a $593.00 fine, but this fine was not orally
pronounced at the hearing on the State’s petition to adjudicate guilt. The State
concedes that because a judgment adjudicating guilt sets aside an order deferring
adjudication of guilt, a trial court cannot impose a fine at adjudication—even one
previously imposed as a condition of community supervision—unless it orally
pronounces one. See Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004)
(holding that when the oral pronouncement of sentence and the written judgment
vary, the oral pronouncement controls). The State also acknowledges that the trial
court did not pronounce a fine when it adjudicated appellant’s guilt.
We agree with the parties’ shared understanding of the holding in Taylor that
3
The State concedes Lewis stands for the proposition that a Crime Stoppers’ fee cannot be
the basis for money “Due to CSCD” when the record does not reflect that appellant did not pay
the fee. Relying on Sanders v. State, No. 02-19-00029-CR; 2019 WL 4010358 (Tex. App.—Fort
Worth Aug. 26, 2019, no pet.) (mem. op. not designated for publication) and Ayala v. State, No.
02-17-00385-CR, 2018 WL 2727954 (Tex. App.—Fort Worth June 7, 2018, no pet.) (mem. op.
not designated for publication), the State argues that appellant “ignores more recent caselaw that
holds to the contrary.” The authority the State relies on are unpublished opinions, which have no
precedential value. Tex. R. App. P. 47.7(a). We therefore adhere to the holding in Lewis as we are
required to do in this transfer case.
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a judgment adjudicating guilt sets aside a fine that is contained in an order deferring
adjudication that is not announced orally by the court when it revokes community
supervision and convicts and sentences a defendant. See id. at 502; see also
Alexander v. State, 301 S.W.3d 361, 363 (Tex. App.—Fort Worth 2009, no pet.)
(modifying a judgment to delete a fine that was imposed in an order deferring
adjudication but was not orally pronounced upon the revocation of community
supervision, conviction, and sentencing). Thus, because the trial court included
$593.00 as part of the $1,000.00 fine in the order deferring adjudication but did not
announce any fine orally when it revoked appellant’s community supervision and
convicted and sentenced him, we hold that the fine must be deleted. See Taylor, 131
S.W.3d at 502. We sustain appellant’s second issue.
IV. Assessment of court-appointed attorney’s fees
In appellant’s third issue he asserts the trial court erred when it assessed court-
appointed attorney’s fees against him. Appellant sought appointment of counsel
from the trial court at the time of his original plea. The record reflects that at the time
of appellant’s original plea, the trial court found appellant had financial resources to
offset the costs of legal services provided pursuant to Texas Code of Criminal
Procedure article 26.05(g).4 The trial court ordered appellant to make monthly
4
Article 26.05(g) provides:
(g) 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 to the defendant in accordance
with Article 1.051(c) or (d), including any expenses and costs, the judge shall order the defendant
to pay during the pendency of the charges or, if convicted, as a reimbursement fee the amount that
the judge finds the defendant is able to pay. The defendant may not be ordered to pay an amount
that exceeds:
(1) the actual costs, including any expenses and costs, paid by the county for the legal services
provided by an appointed attorney; or
(2) if the defendant was represented by a public defender’s office, the actual amount, including
any expenses and costs, that would have otherwise been paid to an appointed attorney had the
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payments of $100.00 toward reimbursement for appointed attorney’s fees until
further order of the court. The order of deferred adjudication contained a “special
finding or order” requiring appellant to pay attorney’s fees in the amount of
$3,633.00. In a document of “Fee Breakdowns” from the Tarrant County District
Clerk produced after appellant’s guilt was adjudicated, an amount of $3,133.00 was
listed as “Attorney Fees Remaining.”
Appellant argues the trial court erred in including the $3,133.00 in attorney’s
fees as part of the judgment adjudicating guilt because although the trial court made
a finding at the time of the original plea that appellant had financial resources
enabling him to offset the costs of his appointed counsel, the trial court did not make
such a finding after adjudicating appellant’s guilt. The State argues that appellant
forfeited this complaint by failing to raise it at the time of the original plea when the
attorney’s fees were ordered. We agree.
To argue that appellant forfeited his complaint about the trial court’s
assessment of attorney’s fees, the State relies on the Texas Court of Criminal
Appeals’s decision in Riles v. State, 452 S.W.3d 333 (Tex. Crim. App. 2015). We
agree that Riles compels us to hold that appellant forfeited his complaint.
In Riles, as in this case, the trial court deferred adjudication of Riles’s guilt,
placed her on community supervision, and ordered her to pay attorney’s fees. Id. at
334. Riles did not appeal from the order deferring adjudication and imposing
community supervision. Id. When the trial court revoked her community supervision
and adjudicated her guilt, the court required her to pay $1,000.00 in attorney’s fees.
Id. at 335. On appeal from the judgment adjudicating her guilt, Riles argued, as
appellant argues, that the “trial court erred in ordering her to pay the [attorney’s fees]
county not had a public defender’s office. Tex. Code Crim. Proc. art. 26.05.
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without any evidence that she had the ability to pay [them].” Id.
The Court of Criminal Appeals held that Riles had forfeited her complaint. Id.
at 337–38. The court explained that the record established her knowledge that the
trial court had imposed an unspecified attorney’s fee in the deferred-adjudication
order and that she had an obligation at that time to challenge “the sufficiency of the
evidence supporting payment of the fee.” Id. at 337. The court explained that “any
issue related to the original plea proceeding [could] be taken only in an appeal to the
original order of deferred adjudication.” Id. (citing Manuel v. State, 994 S.W.2d 658,
661–62 (Tex. Crim. App. 1999)). In sum, the court held that Riles “had knowledge
that she was to be charged for her appointed attorney fee, . . . but she forfeited her
claim by foregoing her initial appeal.” Id. at 338.
The principles supporting the decision in Riles compel the same result here.
Appellant did not appeal the trial court’s deferred-adjudication order. We therefore
hold that he forfeited his complaint that the trial court lacked authority to assess
attorney’s fees for representation leading to the deferred-adjudication order. See Tex.
R. App. P. 33.1(a); Riles, 452 S.W.3d at 337–38. We overrule appellant’s third issue.
V. Credit for Court Costs Paid
In appellant’s fourth issue he asserts the judgment of conviction fails to credit
him for court costs already paid. The record reflects appellant paid court costs of
$407.00. A document listing “all transactions for a case” lists nine entries for Court
Cost (Paid) adding up to $407.00. The State asserts that although the payments were
listed by the District Clerk’s Office as court costs paid, those payments were actually
credited to appellant’s $1,000.00 fine originally assessed when the deferred
adjudication order issued. We agree.
While the printout states “Court Cost (Paid)” with respect to those payments,
9
the record further reflects that those payments were applied to the $1,000.00 fine
assessed when appellant was placed on deferred adjudication.5 This is also reflected
in that the trial court attempted to reduce the fine in the adjudication order by the
amount paid. We overrule appellant’s fourth issue.
VI. Cruel and Unusual Punishment
In appellant’s fifth issue he asserts the sentence assessed is grossly
disproportionate to the offense and therefore violates the Eighth Amendment
prohibition against cruel and unusual punishment.
The Eighth Amendment prohibits cruel and unusual punishment, which
includes “extreme sentences that are grossly disproportionate to the crime.” Graham
v. Florida, 560 U.S. 48, 60 (2010). Appellant pleaded guilty to the offense of
indecency with a child by exposure, which carries a sentencing range of two to ten
years. See Tex. Penal Code §§ 12.34 & 21.11. Appellant was sentenced to eight
years’ confinement. Subject only to “a very limited, exceedingly rare” exception for
grossly disproportional punishments, a punishment assessed within the statutory
limits is “unassailable on appeal.” Ex parte Chavez, 213 S.W.3d 320, 323–24 (Tex.
Crim. App. 2006); see also Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (noting with
regard to noncapital crimes, the gross disproportionality principle applies only in the
“exceedingly rare” and “extreme” case). Legislatures have the broad authority to
define their own crimes and set their own punishments. Solem v. Helm, 463 U.S.
277, 290 (1983).
Appellant did not object on Eighth Amendment grounds to his punishment
when it was imposed, nor did he raise Eighth Amendment grounds in a motion for
5
The aforementioned “List of Fee Breakdowns” notes that $407.00 was paid toward “Fines
297th.”
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new trial. Constitutional claims can be waived by failure to object. Smith v. State,
721 S.W.2d 844, 855 (Tex. Crim. App. 1986). To preserve error for appellate review,
a party must present a timely objection to the trial court, state the specific grounds
for the objection, and obtain a ruling. Tex. R. App. P. 33.1(a). “All a party has to do
to avoid the forfeiture of a complaint on appeal is to let the trial judge know what he
wants, why he thinks himself entitled to it, and to do so clearly enough for the judge
to understand him at a time when the trial court is in a proper position to do
something about it.” Keeter v. State, 175 S.W.3d 756, 760 (Tex. Crim. App. 2005).
See Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986) (stating that, as
a general rule, appellant may not assert error pertaining to his sentence or
punishment when he failed to object or otherwise raise such error in the trial court);
see also Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App.1996) (failure to
object on grounds of cruel and unusual punishment waives claim that sentence
violated prohibition in Texas Constitution); Curry v. State, 910 S.W.2d 490, 497
(Tex. Crim. App. 1995) (failure to make specific objection at trial waives Eighth
Amendment claim of cruel and unusual punishment); Banister v. State, 551 S.W.3d
768, 769 (Tex. App.—Fort Worth 2017, no pet.) (disproportionate-sentence claims
must be preserved at the trial court level).
Because appellant did not raise his disproportionate-sentence claim in the trial
court, he has failed to preserve error for appeal. We overrule appellant’s fifth issue.
CONCLUSION
We modify the trial court’s judgment adjudicating guilt as follows:
• Having overruled in part and sustained in part appellant’s first
issue, we subtract $470.00 “Due to CSCD” from the reparations
due under that judgment and affirm the trial court’s order that
appellant pay the remaining amount due as reparations.
• Having sustained appellant’s second issue, we delete the $593.00
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fine assessed in the judgment adjudicating guilt.
We affirm the trial court’s judgment as modified.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Wise, Zimmerer, and Poissant.
Do Not Publish — Tex. R. App. P. 47.2(b).
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