Opinion
10-22-00379-CR
07-18-2023
MARKQUAL DARNELL PALACIO, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish
From the 52nd District Court Coryell County, Texas Trial Court No. 15-22749
Before Chief Justice Gray, Justice Johnson, and Justice Smith
ABATEMENT ORDER
PER CURIAM
Appellant, Markqual Darnell Palacio, was indicted for the offense of aggravated robbery. See TEX. PENAL CODE ANN. § 29.03. Pursuant to a plea bargain with the State, Palacio pleaded guilty to the lesser-included offense of attempted robbery. The trial court accepted Palacio's guilty plea and placed him on deferred adjudication community supervision for ten years and orally pronounced a $2,500 fine, $50 in restitution, and court costs.
Thereafter, the trial court signed two orders modifying the conditions of Palacio's supervision. Because Palacio did not comply with the terms and conditions of his supervision, the State filed a motion to adjudicate guilt and revoke community supervision. In its motion, the State alleged that Palacio violated the terms and conditions of his supervision by committing the offense of driving while intoxicated and failing "to avoid injurious and vicious habits, refrain from purchasing, possessing, owning, consuming, and/or using alcoholic beverages, to include any 'Non-Alcoholic Beer Substitutes' such as Sharps, etc...."
At the hearing on the State's motion to adjudicate guilt and revoke community supervision, Palacio pleaded "true" to both of the State's allegations. The trial court accepted Palacio's pleas, found the allegations made by the State to be true, revoked Palacio's supervision, and sentenced him to eight years in the Institutional Division of the Texas Department of Criminal Justice. The trial court noted that there would be no fine and no attorney's fees and certified Palacio's right to appeal the revocation of his deferred adjudication community supervision. The judgment adjudicating guilt stated no fine but assessed $1,893 in court costs.
Appointed appellate counsel for Palacio filed a motion to withdraw and an Anders brief in support of the motion asserting that he has diligently reviewed the appellate record and that, in his opinion, the appeal is frivolous. See generally Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). However, in his Anders brief, appointed counsel challenges the assessment of "District Court Fines." Specifically, appointed counsel complains that the "District Court Fines" were not orally pronounced at the hearing on the State's motion to adjudicate guilt but were included in the bill of costs.
Because it appeared that Palacio was challenging the imposition of a fine, we construed counsel's brief as a brief on the merits and requested a response from the State. See Sowels v. State, 45 S.W.3d 690, 694 (Tex. App.-Waco 2001, no pet.) ("The State's right to file a responsive brief commences upon the filing of a pro se brief or other response." (emphasis in original)), overruled in part on other grounds by Meza v. State, 206 S.W.3d 684, 689 (Tex. Crim. App. 2006); Wilson v. State, 955 S.W.2d 693, 697 (Tex. App.-Waco 1997, no pet.) (same). The State filed a response requesting that we abate this proceeding for further clarification from the trial court.
After reviewing the State's response, it is unclear as to whether the challenged $1,893 in "District Court Fines" are court costs, as expressed in the judgment adjudicating guilt, or if they are the remaining balance owed on the $2,500 fine that corresponded with the judgment placing Palacio on deferred adjudication community supervision. See Taylor v. State, 131 S.W.3d 497, 501-02 (noting that deferred adjudication differs from regular probation in that a fine orally pronounced at sentencing survives revocation of probation); see also Ray v. State, No. 05-17-00820-CR, 2018 Tex.App. LEXIS 1663, at **2-3 (Tex. App.-Dallas Mar. 5, 2018, no pet.) (mem. op., not designated for publication) ("When an accused receives deferred adjudication community supervision, no sentence is imposed. Then, when guilt is adjudicated, the order adjudicating guilt sets aside the order deferring adjudication, including any previously imposed fine." (internal citations omitted)).
Accordingly, we abate this appeal and remand to the trial court to review Palacio's complaint about the $1,893 in "District Court Fines" to: (1) determine if they are actually court costs or if they are the remaining balance owed on the $2,500 fine that corresponded with the judgment placing Palacio on deferred adjudication community supervision; and (2) correct the judgment and bill of costs if any error exists with regard to the $1,893 in "District Court Fines." The trial court shall conduct a hearing on this issue within thirty days of this order, and the District Clerk and Court Reporter shall file a Supplemental Clerk's Record and Supplemental Reporter's Record with the Clerk of this Court within fourteen days of the date the trial court conducts that hearing.
(Chief Justice Gray dissents without a note)
Appeal Abated.