Opinion
02-23-00197-CR
03-14-2024
Eric Romo, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from Criminal District Court No. 4 Tarrant County, Texas Trial Court No. 1154083
Before Sudderth, C.J.; Womack and Wallach, JJ.
MEMORANDUM OPINION
Bonnie Sudderth Chief Justice
In 2009, Appellant Eric Romo was charged with indecency with a child by contact. See Tex. Penal Code Ann. § 21.11(a)(1). Pursuant to a plea agreement, Romo pleaded guilty in exchange for 10 years' deferred adjudication community supervision. In 2018, the State sought to proceed to adjudication, alleging that Romo had violated the terms of his community supervision numerous times by failing to report monthly to the Tarrant County Community Supervision and Corrections Department. Romo pleaded "not true" to the State's allegations, but the trial court found them true and sentenced him to 18 years' confinement.
Romo was also ordered to pay a $1,000 fine and $513 in court costs and to undergo sex offender treatment and counseling. In addition, he was prohibited from having any contact with the victim or unsupervised contact with any child less than 15 years of age.
Specifically, the State alleged that Romo had failed to report by mail during the months of December 2013, July and November 2014, November and December 2015, September and November 2016, January through May and July through December 2017, and January through March 2018. The State's motion to adjudicate also alleged that Romo had failed to report in April and May 2018, but the State abandoned those allegations at the revocation hearing.
Romo's appointed appellate counsel has filed a motion to withdraw and a brief under Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 1400 (1967), representing that Romo's appeal "is without merit and frivolous[] because the record reflects no reversible error." In compliance with Kelly v. State, counsel provided Romo with copies of the brief and motion to withdraw and informed him of his right to file a pro se response, to review the record, and to seek discretionary review pro se should this court deny relief. See 436 S.W.3d 313, 319 (Tex. Crim. App. 2014).
Counsel's brief and motion meet the requirements of Anders by presenting a professional evaluation of the record demonstrating why there are no arguable grounds for relief. See In re Schulman, 252 S.W.3d 403, 406-12 (Tex. Crim. App. 2008) (orig. proceeding). Romo was given the opportunity to file a pro se response to the Anders brief but filed nothing. The State did not file a brief but noted in a letter to this court that it agreed with Romo's appointed counsel that there were no meritorious grounds for appeal.
Once an appellant's court-appointed attorney files a motion to withdraw on the ground that an appeal is frivolous and fulfills the requirements of Anders, we must independently examine the record. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Only then may we grant counsel's motion to withdraw. See Penson v. Ohio, 488 U.S. 75, 82-83, 109 S.Ct. 346, 351 (1988).
We have carefully reviewed the record and counsel's brief and have determined that the trial court's judgment requires modification regarding the assessment of reparations in the amount of $2,395. We have previously held that when reparations are comparable to fees-and are therefore not punishment and not part of a defendant's sentence-they do not have to be included in the trial court's oral pronouncement of sentence to be properly included in the written judgment. See Brown v. State, No. 02-08-063-CR, 2009 WL 1905231, at *2 (Tex. App.-Fort Worth July 2, 2009, no pet.) (per curiam) (mem. op., not designated for publication). But to include such fees, the State must supply evidence that the defendant actually owes them. Lewis v. State, 423 S.W.3d 451, 460-61 (Tex. App.-Fort Worth 2013, pet. refd); see also Levine v. State, No. 02-19-00414-CR, 2020 WL 5414974, at *2 (Tex. App.-Fort Worth Sept. 10, 2020, no pet.) (mem. op., not designated for publication) (clarifying that although "evidentiary-sufficiency principles do not apply to reparations," they "must . . . have some sort of record support"). Thus, we have struck reparations when we were unable to determine the authority for their imposition. See Lewis, 423 S.W.3d at 461; see also Lawson v. State, No. 02-18-00361-CR, 2019 WL 3244493, at *2 (Tex. App.-Fort Worth July 18, 2019, no pet.) (mem. op., not designated for publication); Gatewood v. State, No. 02-18-00021-CR, 2018 WL 4625780, at *2 (Tex. App.-Fort Worth Sept. 27, 2018, no pet.) (per curiam) (mem. op., not designated for publication).
Here, the trial court's judgment includes a "Special Finding" ordering Romo to pay $2,395 in reparations. But the trial court did not orally pronounce these reparations at sentencing, and there is nothing in the record itemizing them or explaining what they are for. Outside of the judgment itself, the only record reference to "reparations" is found in a docket entry dated July 11, 2023-the date of the revocation hearing. In pertinent part, this entry states as follows: "$2,395[] IN REPARATIONS TO RUN CONCURRENT WITH SENTENCE." While it does not use the word reparations, the "District Clerk Certificate of Proceedings" from July 11, 2023, includes the following notation: "REMAINING CT COST/FEES/FINES CC W/SENTENCE." Based on this notation, it appears that the reparations are composed of some combination of court costs, fees, and fines. But there is nothing in the record that would allow us to determine what portion, if any, is for fines- which must be orally pronounced at sentencing-and what portion is merely for fees and costs. Compare Romine v. State, No. 06-13-00071-CR, 2013 WL 4002610, at *2 (Tex. App.-Texarkana Aug. 6, 2013, no pet.) (mem. op., not designated for publication) ("If a judge fails to orally pronounce a fine when guilt is adjudicated, but includes a fine within the written judgment, the fine must be deleted because 'the oral pronouncement controls.'" (quoting Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004))), with Brown, 2009 WL 1905231, at *2 (holding that reparations need not be orally pronounced when they are comparable to fees). Further, the posttrial bill of costs signed by the district clerk reflects that Romo owes no court costs or fees, and the record contains no other evidence showing that Romo actually owes any such costs or fees.
Having found no record support for the reparations, we modify the judgment to delete the reparations in the amount of $2,395. Except for this necessary modification to the judgment, we agree with counsel that this appeal is wholly frivolous and without merit; we find nothing in the record that arguably might support an appeal. See Bledsoe v. State, 178 S.W.3d 824, 827-28 (Tex. Crim. App. 2005). Accordingly, we grant counsel's motion to withdraw and affirm as modified the trial court's judgment.