In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-22-00141-CR ___________________________
JARED DOMEI MALOID, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 297th District Court Tarrant County, Texas Trial Court No. 1576238D
Before Bassel, Womack, and Wallach, JJ. Memorandum Opinion by Justice Bassel MEMORANDUM OPINION
In October 2019, Appellant Jared Domei Maloid, pursuant to a plea bargain,
pleaded guilty to the third-degree felony offense of indecency with a child by exposure,
see Tex. Penal Code Ann. § 21.11(a)(2), (d), and was placed on six years’ deferred
adjudication community supervision with sex offender conditions. In December 2020,
the State filed its third amended petition1 to proceed with adjudication of guilt in which
it alleged that Maloid had committed numerous violations of the terms of his
community supervision. At the adjudication hearing, Maloid pleaded “true” to violating
the terms of his community supervision. 2 The trial court adjudicated him guilty and
sentenced him to four years’ incarceration. This appeal followed.
On appeal, Maloid’s court-appointed appellate counsel has filed a motion to
withdraw and a brief reflecting that counsel has determined, after examining the
appellate record, that no arguable grounds for appeal exist. See Anders v. California, 386
U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967). Counsel’s brief and motion meet the
requirements of Anders, which requires presenting a professional evaluation of the
entire record in the case demonstrating why there are no arguable grounds for relief.
Id., 87 S. Ct. at 1400. We have independently examined the record, as is our duty
upon the filing of an Anders brief. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim.
1 The State filed its initial petition to adjudicate in April 2020 and filed its first and second amended petitions in October 2020. 2 At the adjudication hearing, the State waived the eighth alleged violation set forth in its petition. Maloid pleaded “true” to the remaining alleged violations.
2 App. 1991); see also Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988). In
compliance with Kelly v. State, counsel provided Maloid with copies of his brief and
motion to withdraw, and he informed Maloid of his right to review the record and to
file a pro se response. See 436 S.W.3d 313, 319 (Tex. Crim. App. 2014).
Maloid filed a pro se response in which he requested that his sentence be
vacated.3 The State submitted a letter indicating that it would not file a response to
the Anders brief or to the motion to withdraw filed by Maloid’s counsel.
3 In his response, Maloid argues that his sentence should be vacated because he did not know that the victim was underage and because the conditions of his community supervision were unduly strict and—to the extent that they barred his access to the internet or social media—unconstitutional. See generally Packingham v. North Carolina, 582 U.S. 98, 137 S. Ct. 1730 (2017). However, because Maloid’s original guilty plea was pursuant to a plea bargain, issues pertaining to that plea are beyond the scope of this appeal. See Speth v. State, 6 S.W.3d 530, 534–35 (Tex. Crim. App. 1999); Whillhite v. State, 627 S.W.3d 703, 705 (Tex. App.—Austin 2021, pet. ref’d) (“[A] defendant may not raise issues related to the original plea proceeding in an appeal of the revocation of his deferred adjudication; instead, in an appeal from revocation proceedings, the defendant is limited to challenging the grounds for revocation.” (citing Wright v. State, 506 S.W.3d 478, 481 (Tex. Crim. App. 2016))); see also Jackson v. State, Nos. 09-16-00492-CR, 09-16-00493-CR, 2017 WL 2698049, at *2– 5 (Tex. App.—Beaumont June 21, 2017, no pet.) (mem. op., not designated for publication) (holding appellant had waived complaint that community supervision conditions violated his First Amendment rights because it did not involve a right fundamental to the adjudication process and he had “affirmatively, plainly, freely and knowingly agreed to the terms and conditions”). But cf. Dansby v. State, 448 S.W.3d 441, 446–52 (Tex. Crim. App. 2014) (holding that conditions did not give fair notice that appellant would be subject to waiving his Fifth Amendment rights and therefore this issue did not need to be preserved when imposed). Moreover, because Maloid pleaded “true” to all of the alleged violations of the conditions of his community supervision and because the State need only prove one violation to prevail at a revocation hearing, see Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012), we need not consider Maloid’s constitutional challenge to the conditions restricting his access to the internet and social media. See Guerrero v. State, 554 S.W.3d 268, 274 (Tex.
3 After carefully reviewing the record, we have determined that the $25 “time
payment fee” assessed after the adjudication order and reflected in a subsequent bill
of costs and the adjudication judgment is premature and should be deleted. See Act of
June 2, 2003, 78th Leg., R.S., ch. 209, § 62, 2003 Tex. Gen. Laws 979, 996–97,
redesignated as Tex. Code Crim. Proc. Ann. art. 102.030. 4 The Court of Criminal
Appeals recently held that “the time payment fee was designed to be triggered by the
finality of the judgment” and that “[t]he pendency of an appeal stops the clock for
purposes of the time payment fee.” Dulin v. State, 620 S.W.3d 129, 133 (Tex. Crim.
App. 2021). Because Maloid perfected his appeal prior to the thirty-first day
following the entry of the judgment, the assessment of the time payment fee was
premature. 5 See Garza v. State, No. 02-20-00155-CR, 2022 WL 488933, at *3–4 (Tex.
App.—Houston [14th Dist.] 2018, no pet.); see also Alexander v. State, No. 04-20- 00480-CR, 2021 WL 6053736, at *2 (Tex. App.—San Antonio Dec. 22, 2021, no pet.) (mem. op., not designated for publication). In any event, counsel did not preserve an argument that Maloid’s community supervision could not be revoked based upon his violations of the challenged conditions; he merely raised these constitutional challenges in mitigation in what amounts to a “true but” plea. See Criado v. State, Nos. 02-21-00104-CR, 02-21-00105-CR, 2022 WL 2071791, at *3 (Tex. App.—Fort Worth June 9, 2022, no pet.) (mem. op., not designated for publication). 4 Due to Maloid’s November 9, 2018, offense date, we apply the former version of the time-payment-fee statute. The redesignated section was effective on January 1, 2020, and applies only to convictions with offense dates on or after that date. See Act of May 23, 2019, 86th Leg., R.S., ch. 1352, S.B. 346, § 2.54, 2019 Tex. Sess. Law Serv. 3981, 4010.
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In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-22-00141-CR ___________________________
JARED DOMEI MALOID, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 297th District Court Tarrant County, Texas Trial Court No. 1576238D
Before Bassel, Womack, and Wallach, JJ. Memorandum Opinion by Justice Bassel MEMORANDUM OPINION
In October 2019, Appellant Jared Domei Maloid, pursuant to a plea bargain,
pleaded guilty to the third-degree felony offense of indecency with a child by exposure,
see Tex. Penal Code Ann. § 21.11(a)(2), (d), and was placed on six years’ deferred
adjudication community supervision with sex offender conditions. In December 2020,
the State filed its third amended petition1 to proceed with adjudication of guilt in which
it alleged that Maloid had committed numerous violations of the terms of his
community supervision. At the adjudication hearing, Maloid pleaded “true” to violating
the terms of his community supervision. 2 The trial court adjudicated him guilty and
sentenced him to four years’ incarceration. This appeal followed.
On appeal, Maloid’s court-appointed appellate counsel has filed a motion to
withdraw and a brief reflecting that counsel has determined, after examining the
appellate record, that no arguable grounds for appeal exist. See Anders v. California, 386
U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967). Counsel’s brief and motion meet the
requirements of Anders, which requires presenting a professional evaluation of the
entire record in the case demonstrating why there are no arguable grounds for relief.
Id., 87 S. Ct. at 1400. We have independently examined the record, as is our duty
upon the filing of an Anders brief. See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim.
1 The State filed its initial petition to adjudicate in April 2020 and filed its first and second amended petitions in October 2020. 2 At the adjudication hearing, the State waived the eighth alleged violation set forth in its petition. Maloid pleaded “true” to the remaining alleged violations.
2 App. 1991); see also Penson v. Ohio, 488 U.S. 75, 82–83, 109 S. Ct. 346, 351 (1988). In
compliance with Kelly v. State, counsel provided Maloid with copies of his brief and
motion to withdraw, and he informed Maloid of his right to review the record and to
file a pro se response. See 436 S.W.3d 313, 319 (Tex. Crim. App. 2014).
Maloid filed a pro se response in which he requested that his sentence be
vacated.3 The State submitted a letter indicating that it would not file a response to
the Anders brief or to the motion to withdraw filed by Maloid’s counsel.
3 In his response, Maloid argues that his sentence should be vacated because he did not know that the victim was underage and because the conditions of his community supervision were unduly strict and—to the extent that they barred his access to the internet or social media—unconstitutional. See generally Packingham v. North Carolina, 582 U.S. 98, 137 S. Ct. 1730 (2017). However, because Maloid’s original guilty plea was pursuant to a plea bargain, issues pertaining to that plea are beyond the scope of this appeal. See Speth v. State, 6 S.W.3d 530, 534–35 (Tex. Crim. App. 1999); Whillhite v. State, 627 S.W.3d 703, 705 (Tex. App.—Austin 2021, pet. ref’d) (“[A] defendant may not raise issues related to the original plea proceeding in an appeal of the revocation of his deferred adjudication; instead, in an appeal from revocation proceedings, the defendant is limited to challenging the grounds for revocation.” (citing Wright v. State, 506 S.W.3d 478, 481 (Tex. Crim. App. 2016))); see also Jackson v. State, Nos. 09-16-00492-CR, 09-16-00493-CR, 2017 WL 2698049, at *2– 5 (Tex. App.—Beaumont June 21, 2017, no pet.) (mem. op., not designated for publication) (holding appellant had waived complaint that community supervision conditions violated his First Amendment rights because it did not involve a right fundamental to the adjudication process and he had “affirmatively, plainly, freely and knowingly agreed to the terms and conditions”). But cf. Dansby v. State, 448 S.W.3d 441, 446–52 (Tex. Crim. App. 2014) (holding that conditions did not give fair notice that appellant would be subject to waiving his Fifth Amendment rights and therefore this issue did not need to be preserved when imposed). Moreover, because Maloid pleaded “true” to all of the alleged violations of the conditions of his community supervision and because the State need only prove one violation to prevail at a revocation hearing, see Garcia v. State, 387 S.W.3d 20, 26 (Tex. Crim. App. 2012), we need not consider Maloid’s constitutional challenge to the conditions restricting his access to the internet and social media. See Guerrero v. State, 554 S.W.3d 268, 274 (Tex.
3 After carefully reviewing the record, we have determined that the $25 “time
payment fee” assessed after the adjudication order and reflected in a subsequent bill
of costs and the adjudication judgment is premature and should be deleted. See Act of
June 2, 2003, 78th Leg., R.S., ch. 209, § 62, 2003 Tex. Gen. Laws 979, 996–97,
redesignated as Tex. Code Crim. Proc. Ann. art. 102.030. 4 The Court of Criminal
Appeals recently held that “the time payment fee was designed to be triggered by the
finality of the judgment” and that “[t]he pendency of an appeal stops the clock for
purposes of the time payment fee.” Dulin v. State, 620 S.W.3d 129, 133 (Tex. Crim.
App. 2021). Because Maloid perfected his appeal prior to the thirty-first day
following the entry of the judgment, the assessment of the time payment fee was
premature. 5 See Garza v. State, No. 02-20-00155-CR, 2022 WL 488933, at *3–4 (Tex.
App.—Houston [14th Dist.] 2018, no pet.); see also Alexander v. State, No. 04-20- 00480-CR, 2021 WL 6053736, at *2 (Tex. App.—San Antonio Dec. 22, 2021, no pet.) (mem. op., not designated for publication). In any event, counsel did not preserve an argument that Maloid’s community supervision could not be revoked based upon his violations of the challenged conditions; he merely raised these constitutional challenges in mitigation in what amounts to a “true but” plea. See Criado v. State, Nos. 02-21-00104-CR, 02-21-00105-CR, 2022 WL 2071791, at *3 (Tex. App.—Fort Worth June 9, 2022, no pet.) (mem. op., not designated for publication). 4 Due to Maloid’s November 9, 2018, offense date, we apply the former version of the time-payment-fee statute. The redesignated section was effective on January 1, 2020, and applies only to convictions with offense dates on or after that date. See Act of May 23, 2019, 86th Leg., R.S., ch. 1352, S.B. 346, § 2.54, 2019 Tex. Sess. Law Serv. 3981, 4010. 5 To the extent that the time payment fee was levied because Maloid failed to timely pay certain fines, fees, or other court costs assessed in the order deferring adjudication, this was improper because such an order is not a “judgment.” See Turner
4 App.—Fort Worth, Feb. 17, 2022, no pet.) (mem. op., not designated for publication);
see also Guevara v. State, No. 02-21-00069-CR, 2022 WL 1042919, at *4 (Tex. App.—
Fort Worth Apr. 7, 2022, no pet.) (mem. op., not designated for publication). Thus,
we strike the time payment fee in its entirety, without prejudice to its being assessed
later if, more than 30 days after the issuance of the appellate mandate, Maloid has
failed to completely pay any court costs that he owes. See Dulin, 620 S.W.3d at 133.
Except for the modification to the judgment discussed above, we agree with
counsel that this appeal is wholly frivolous and without merit. Our independent
review of the record reveals nothing further that might arguably support the appeal.
See Bledsoe v. State, 178 S.W.3d 824, 827–28 (Tex. Crim. App. 2005); see also Meza v.
State, 206 S.W.3d 684, 685 n.6 (Tex. Crim. App. 2006). Accordingly, we grant
counsel’s motion to withdraw, modify the trial court’s judgment to remove the $25
time payment fee from the bill of costs (without prejudice to its being assessed later),
and affirm the judgment as modified. See Tex. R. App. P. 43.2(b); Bray v. State, 179
S.W.3d 725, 729 (Tex. App.—Fort Worth 2005, no pet.).
/s/ Dabney Bassel Dabney Bassel Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: April 13, 2023
v. State, No. 05-19-01493-CR, 2021 WL 3083501, at *2 (Tex. App.—Dallas July 21, 2021, no pet.) (mem. op. on remand, not designated for publication).