Fortino Gallegos v. State

• Court: Court of Appeals of Texas
• Decided: August 26, 2019
• Docket: 02-18-00502-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-18-00502-CR ___________________________

FORTINO GALLEGOS, Appellant

V.

THE STATE OF TEXAS

On Appeal from Criminal District Court No. 3 Tarrant County, Texas Trial Court No. 1418532D

Before Kerr, Birdwell, and Womack, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION

I. INTRODUCTION

Appellant Fortino Gallegos appeals from the trial court’s revocation of his

community supervision, from the adjudication of his guilt for burglary of a habitation,

and from the imposition of a five-year sentence. His sole appellate challenge,

however, is to $70 imposed as reparations in the trial court’s judgment. We conclude

that $15 of this reparations amount must be deleted but that the remainder of the

reparations amount was appropriately entered.

II. BACKGROUND

Gallegos was charged by indictment with burglary of a habitation. See Tex.

Penal Code Ann. § 30.02(a)(1). Gallegos pleaded guilty to the charged offense in

exchange for the State’s recommendation that the adjudication of his guilt be deferred

and that he be placed on community supervision for eight years. The trial court

followed the State’s recommendation, deferred adjudicating Gallegos’s guilt, placed

him on community supervision for eight years, and ordered him to comply with

several community-supervision conditions. See Tex. Code Crim. Proc. Ann. arts.

42A.101, .104.

Almost two years later, the State filed a petition to proceed to an adjudication

of Gallegos’s guilt and to revoke his community supervision based on his alleged

violations of some of the previously imposed community-supervision conditions. See

id. art. 42A.108. At the hearing on the petition, Gallegos pleaded true to the State’s

2 allegations. The trial court found the allegations true, revoked his community

supervision, and adjudicated him guilty of burglary of a habitation. The trial court

sentenced Gallegos to five years’ confinement and ordered reparations in the amount

of $70. See id. art. 42.03, § 2(b), art. 42A.110

Three days after the trial court entered its judgment, the Tarrant County

Community Supervision and Corrections Department (CSCD) submitted a balance

sheet to the trial court showing that the $70 in reparations was derived from $15

“DUE TO CSCD” and $55 in “PROBATION FEES.” The Tarrant County District

Clerk’s list of fee breakdowns, submitted the same day as the balance sheet, reflected

“0.00” for “Probation Fees Remaining” and “0.00” for “Due to CSCD Remaining.”

Gallegos now argues that categorizing community-supervision fees as reparations

violates due process and that the amount due to CSCD has no basis in the record.

We partially sustain and partially overrule his issue.

III. DISCUSSION

Regarding the $55 identified as community-supervision fees, Gallegos

recognizes that we have directly held against his position. See Hongpathoum v. State,

Nos. 02-18-00061-CR, 02-18-00062-CR, 02-18-00063-CR, 2019 WL 2432152, at *2–3

(Tex. App.—Fort Worth June 6, 2019, no pet.); Ayala v. State, No. 02-17-00385-CR,

2018 WL 2727954, at *1 (Tex. App.—Fort Worth June 7, 2018, no pet.) (mem. op.,

not designated for publication); Smith v. State, Nos. 02-16-00412-CR, 02-16-00413-CR,

2017 WL 2276751, at *3 (Tex. App.—Fort Worth May 25, 2017, pet. ref’d) (mem. op.,

3 not designated for publication); Zamarripa v. State, 506 S.W.3d 715, 716 (Tex. App.—

Fort Worth 2016, pet. ref’d). But the $15 noted as being due to CSCD has no basis in

the record, which the State concedes. See Hongpathoun, 2019 WL 2432152, at *2. This

amount must be deleted from the judgment and from the order to withdraw funds

that was attached to and incorporated into the trial court’s judgment.

IV. CONCLUSION

We conclude that the amount of reparations attributable to community-

supervision fees was appropriately entered as reparations in the trial court’s judgment.

See Lyle v. State, No. 02-17-00227-CR, 2019 WL 3024480, at *3 (Tex. App.—Fort

Worth July 11, 2019, no pet. h.) (mem. op., not designated for publication). But the

amount identified only as due to CSCD has no basis in the record and must be

deleted. See id. Accordingly, we modify the trial court’s judgment adjudicating guilt to

delete $15 from the $70 imposed as reparations. We additionally modify the

incorporated order to withdraw funds to delete $15 from the incurred “[c]ourt costs,

fees and/or fines and/or restitution,” for a remaining total of $55. As modified, we

affirm the trial court’s judgment adjudicating guilt. See Tex. R. App. P. 43.2(b).

/s/ Dana Womack

Dana Womack Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: August 26, 2019