In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00048-CR
___________________________
ELIJAH RAY FOY, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 396th District Court
Tarrant County, Texas
Trial Court No. 1492984D
Before Womack, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Womack
MEMORANDUM OPINION
I. INTRODUCTION
Appellant Elijah Ray Foy raises three points on appeal from a judgment
adjudicating him guilty of injury to a child. His complaints concern a fine and fees
assessed in the judgment, and attorneys’ fees included in an Order to Withdraw Funds
incorporated into the judgment, rather than the merits of his conviction and four-year
sentence. Because we hold that the fine was improperly assessed in the judgment and
that the attorney’s fees were improperly included in the Order to Withdraw Funds,
but that the record shows a basis for imposition of the remaining fees in the
judgment, we modify the judgment to delete the fine and affirm it as modified, and we
modify the incorporated Order to Withdraw Funds to show a balance of zero.
II. BACKGROUND
A grand jury indicted Foy for two counts of aggravated sexual assault of a child
under fourteen, one count of indecency with a child, and one count of injury to a
child. See Tex. Penal Code Ann. §§ 21.11(a)(1), (c)(1), 22.021(a)(1)(B), (a)(2)(b),
22.04(a)(3), (f). Foy later agreed to a plea bargain, pursuant to which the State waived
the two aggravated-sexual-assault counts and the indecency count in exchange for
Foy’s guilty plea to the injury-to-a-child count. In accordance with the plea bargain,
the trial court placed Foy on deferred adjudication community supervision for five
years, assessed a $500 fine, and ordered Foy to comply with standard community
supervision conditions as well as special sex offender conditions. As part of the
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standard conditions, the trial court ordered Foy to pay a $60 per month supervision
fee to the Community Supervision and Corrections Department of Tarrant County
(CSCD) and to submit to and pay for alcohol and drug testing. As part of the sex
offender conditions, the trial court ordered Foy to pay a $5 per month “sex offender
fee”; to pay for all costs of sex offender evaluation, counseling, treatment, and
aftercare; to submit to and pay for alcohol testing; and to submit a blood sample to
the Texas Department of Public Safety and “[p]ay any and all costs associated with the
submission of blood or other specimens.”
In September 2020, the State filed a Petition to Proceed to Adjudication,
alleging that Foy had violated six conditions of his community supervision. Foy
pleaded true to five of the alleged violations, and in March 2021, the trial court
revoked his community supervision and adjudicated him guilty of injury to a child. In
the judgment, the trial court assessed a $409 fine, court costs of $314,1 and $1,350 as
reparations. The judgment assessed reimbursement fees of $5,970 but also stated that
those fees would be waived. The judgment incorporates an Order to Withdraw
Funds,2 which orders the Inmate Trust Department of the Texas Department of
Criminal Justice to withdraw a total of $5,970 from Foy’s inmate trust account.
1
Foy does not challenge the court costs on appeal.
Although the trial court may title its notice to the Texas Department of
2
Criminal Justice an order, the controlling statute describes it as a notification that
amounts were assessed in a prior order. See Tex. Gov’t Code Ann. § 501.014(e);
3
The record contains a March 4, 2021 List of Fee Breakdowns from the Tarrant
County District Clerk, which shows a $6,693 balance remaining for Foy: court costs
of $314, fines of $409, and attorney’s fees of $5,970. Next to the attorney’s fees line is
a handwritten note: “waived per crt.” A line item for “Due to CSCD Remaining”
shows “0.00.”
Also in the record is a balance sheet from CSCD. It lists the $1,350 as the sum
total of the following administrative fees: “Due to CSCD - LAB FEE $30.00”; “Due
to CSCD - LAB FEE- BOND $90.00”; “Due to CSCD - SPECIAL FEE FOR SEX
OFFENDERS $290.00”; and “PROBATION FEES $940.” Handwritten underneath
those specifically listed fees are the following notes: “orig fine . . . $409”; “orig crt
cost . . $314”; and “Attorney fees remaining $5970.00.” Nothing on the balance sheet
indicates to whom the handwritten items are payable.
On appeal, Foy challenges the imposition of the $409 fine and $1,350
reparations in the judgment and the inclusion of the $5,970 in the Order to Withdraw
Funds.
III. DISCUSSION
A. Fine and Attorney’s Fees
The State concedes that the trial court improperly included the fine in the
judgment. The State is correct. A fine, as part of the defendant’s sentence, must be
Harrell v. State, 286 S.W.3d 315, 316 n.1 (Tex. 2009); Maldonado v. State, 360 S.W.3d 10,
12 n.3 (Tex. App.––Amarillo 2010, no pet.).
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orally pronounced to be properly included in the judgment. Armstrong v. State,
340 S.W.3d 759, 767 (Tex. Crim. App. 2011); see Taylor v. State, 131 S.W.3d 497, 500–
02 (Tex. Crim. App. 2004). Sentence is not imposed in deferred adjudication cases
until the trial court adjudicates guilt; thus, in those cases, the trial court must orally
pronounce the fine when adjudicating guilt. Taylor, 131 S.W.3d at 502. Here, because
the trial court did not orally pronounce the fine when adjudicating Foy guilty, the trial
court improperly included the fine in the judgment. See id.
The State likewise concedes that the $5,970 reimbursement fee was improperly
included in the Order to Withdraw Funds. Again, we agree with the State. The Order
to Withdraw funds commanded Foy to repay the $5,970 that had been assessed as
attorney’s fees. However, the final judgment expressly waived the requirement that
Foy repay the $5,970. Therefore, the Order to Withdraw Funds improperly ordered
that amount to be withdrawn from Foy’s inmate account. See Tex. Gov’t Code Ann.
§ 501.014(e) (providing that upon proper notification Department of Criminal Justice
must withdraw from inmate trust account “any amount the inmate is ordered to pay by
order of the court under this subsection” (emphasis added)).
Therefore, we sustain Foy’s first two points.
B. Amounts Due to CSCD
In his third point, Foy argues that the trial court violated his due process right
by imposing $1,350 in reparations in the judgment. In part of his challenge, Foy re-
urges an argument that we have repeatedly rejected––that monthly community
5
supervision fees and amounts due to CSCD cannot be included in the definition of
reparations––and he specifically asks us to overrule our prior precedent in Zamarripa v.
State, 506 S.W.3d 715, 716 (Tex. App.––Fort Worth 2016, pet. ref’d). We have
recently reaffirmed our refusal to overrule Zamarripa, as well as other precedent
rejecting this very argument. See Turner v. State, No. 02-21-00058-CR, 2022 WL
123220, at *6-7 (Tex. App.––Fort Worth Jan. 13, 2022, no pet. h.) (also declining to
follow contrary precedent from other intermediate appellate courts). Thus, we
overrule Foy’s general challenge to the $1,350 assessed as reparations.
Foy does, however, challenge the trial court’s imposition of the $290 “Due to
CSCD - SPECIAL FEE FOR SEX OFFENDERS.” According to Foy, that fee is
not authorized because he was not convicted of an offense for which he was required
to register as a sex offender.
When addressing a complaint about the assessment of administrative fees or
costs in a judgment, we review the record to determine only whether a basis to
support the award exists; we do not apply traditional Jackson v. Virginia sufficiency
principles. Johnson v. State, 423 S.W.3d 385, 389–90 (Tex. Crim. App. 2014). Only
statutorily authorized costs and fees may be assessed against a criminal defendant. Id.
at 389.
The State contends that Foy cannot complain about the trial court’s assessment
of the $290 because he failed to challenge the trial court’s sex offender conditions
when he pleaded guilty and was placed on deferred adjudication community
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supervision. While it is true that Foy agreed to the sex offender conditions as part of
his guilty plea––even though he pleaded guilty only to injury to a child3––and that
community supervision conditions must be challenged when they are imposed,4 Foy is
not complaining about those conditions. Instead, he is challenging the basis for the
trial court’s imposition of a fee related to those conditions in the judgment. Such a
complaint may be made for the first time on appeal. See, e.g., London v. State,
490 S.W.3d 503, 507 (Tex. Crim. App. 2016).
As part of the agreed-to sex offender community supervision conditions, which
Foy signed the day he pleaded guilty, the trial court ordered Foy to pay a $5 monthly
“sex offender fee.” Because Foy was on community supervision for eighteen months,
the total accrued for that fee when he was adjudicated guilty would have been $90.
The trial court also ordered Foy to “[p]ay all costs of evaluation, counseling,
treatment, and aftercare” for sex offenders. At the adjudication hearing, Foy pleaded
true to the allegation that he had not completed the sex offender program that he was
ordered to complete. The evidence showed that he had attended intake in 2019,
3
See Tex. Code Crim. Proc. Ann. art. 1.14(a) (“The defendant in a criminal
prosecution for any offense may waive any rights secured him by law except that a
defendant in a capital felony case may waive the right of trial by jury only in the
manner permitted by Article 1.13(b) of this code.”); Tow v. State, No. 02-11-00067-CR,
2012 WL 117996, at *3 (Tex. App.—Fort Worth Jan. 12, 2012, no pet.) (mem. op.,
not designated for publication).
4
Speth v. State, 6 S.W.3d 530, 534–35 (Tex. Crim. App. 1999); Donovan v. State,
508 S.W.3d 351, 357 (Tex. App.––Fort Worth 2014), aff’d, No. PD-0474-14, 2015 WL
4040599, at *4 (Tex. Crim. App. July 1, 2015) (not designated for publication).
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submitted to at least partial testing, and had completed five sessions with a provider in
February and March 2020 but that he had still owed money to the treatment provider
as of October 2020. Foy provided no evidence of how much he paid in accordance
with the trial court’s ordered community supervision conditions or that he paid all of
what he had been ordered to pay; thus, the balance sheet––along with the community
supervision conditions ordered by the trial court––show a basis for the trial court’s
imposition of those fees. See Tex. Code Crim. Proc. Ann. art. 42A.301(a) (“The judge
may impose any reasonable condition that is . . . designed to protect or restore the
community, protect or restore the victim, or punish, rehabilitate, or reform the
defendant.”); Conner v. State, 418 S.W.3d 742, 744 (Tex. App.—Houston [1st Dist.]
2013, no pet.). Foy’s reliance on Lewis v. State is misplaced because in that case, the
CSCD balance sheet in the record did not describe what the fees labeled only as
“DUE TO CSCD” were for; here, the CSCD balance sheet described each line item.
423 S.W.3d 453, 461 (Tex. App.––Fort Worth 2013, pet. ref’d).5
Foy does not specifically challenge the calculation of the $940 that CSCD
showed as still owed for community supervision fees, nor does he challenge the
calculation of the lab fees. Nevertheless, the record shows a basis for these fees.
5
Additionally, we need not address Foy’s argument that the trial court could not
assess the $290 under Code of Criminal Procedure Articles 102.0186 and 102.020
because the record shows an otherwise valid basis for the trial court’s assessment. See
Tex. R. App. P. 47.1.
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Foy was on community supervision for eighteen months and thus would have
accrued total monthly community supervision fees of $1,080. The $940 is within this
range. See, e.g., Smith v. State, Nos. 02-16-00412-CR, 02-16-00413-CR, 2017 WL
2276751, at *3–4 (Tex. App.—Fort Worth May 25, 2017, pet. ref’d) (mem. op., not
designated for publication).
And the trial court ordered Foy to submit to, and pay for, testing of urine
samples for alcohol and cannabinoids as a condition of his pretrial bond and his
deferred adjudication community supervision. The record shows that Foy was
repeatedly tested for alcohol and controlled substances: he tested positive for alcohol
and marijuana at least twice while out on bond and at least twice while on community
supervision. Thus, the record shows a basis for the imposition of those fees. See Tex.
Code Crim. Proc. Ann. arts. 42A.104(a), .301(a), (b)(12), (17); Tex. Gov’t Code Ann.
§§ 76.011, .015; Blackshire v. State, No. 02-12-00364-CR, 2015 WL 3422498, at *1–2
(Tex. App.—Fort Worth May 28, 2015, pet. ref’d) (mem. op., not designated for
publication); Busby v. State, No. 01-11-00819-CR, 2012 WL 2451849, at *2–3 (Tex.
App.––Houston [1st Dist.] June 25, 2012, no pet.) (mem. op., not designated for
publication). But cf. Demerson v. State, No. 02-18-00003-CR, 2018 WL 3580893, at *1–2
(Tex. App.—Fort Worth July 26, 2018, no pet.) (mem. op., not designated for
publication) (determining that record did not show evidence of testing when CSCD
balance sheet did not specify categories for which amounts were owed, instead
attributing $364 only as “DUE TO CSCD”).
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Accordingly, the record shows a basis for the $1,350 assessed as reparations.
We overrule Foy’s third point.
The State has asked us to modify the Order to Withdraw Funds to impose the
$1,350 in reparations assessed in the judgment. But the trial court did not include the
reparations in that order, and the record does not show why the trial court did not do
so. Because Section 501.014 does not limit the time in which the trial court can issue
or amend a funds-withdrawal notification, and because Foy will be able to challenge
any subsequent withdrawal notice, we decline to order the State’s requested relief. See
Tex. Gov’t Code Ann. § 501.014(e); Harrell, 286 S.W.3d at 317–18, 321 (noting that
challenged withdrawal notifications––part of post-judgment civil collection process––
were issued three and nine years after judgments imposing costs and appointed-
counsel fees); Maldonado, 360 S.W.3d at 12 n.3 (likening funds-withdrawal notice to
judgment nisi).
IV. CONCLUSION
Because we have sustained Foy’s first point, we modify the trial court’s
judgment to delete the $409 fine. See Tex. R. App. P. 43.2(b); French v. State,
830 S.W.2d 607, 609 (Tex. Crim. App. 1992). Having sustained his second point, we
likewise modify the Order to Withdraw Funds incorporated into the judgment to
delete the $5,970 in its entirety. But, having overruled Foy’s third point, we affirm the
judgment as modified.
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/s/ Dana Womack
Dana Womack
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: January 20, 2022
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