Kedarius Kentrell Jefferson v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 30, 2023
• Docket: 02-21-00133-CR
• Status: Published

Opinion

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

No. 02-21-00133-CR ___________________________

KEDARIUS KENTRELL JEFFERSON, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 213th District Court Tarrant County, Texas Trial Court No. 1465463D

Before Birdwell, J.; Sudderth, C.J.; and Walker, J. Per Curiam Memorandum Opinion MEMORANDUM OPINION

In 2018, Appellant Kedarius Kentrell Jefferson made an open plea of guilty to

engaging in organized crime with the predicate offense of aggravated robbery and

received ten years of deferred-adjudication community supervision. In 2021, the trial

court adjudicated him guilty of aggravated robbery (a lesser-included offense) and orally

sentenced him to twelve years’ confinement; in the judgment, the trial court added

$3,128 in reparations, in addition to an $839 fine and $314 in court costs. The trial court

gave Jefferson credit in the judgment’s special findings for time served with regard to

the fine and court costs, see Tex. Code Crim. Proc. Ann. arts. 42.03, 43.09, and the order

to withdraw funds reflects only the $3,128 in reparations.

Jefferson’s appointed appellate counsel has filed a motion to withdraw and a

brief under Anders v. California, 1 representing that his “careful, conscientious, and

professional review of the record” shows no “legitimate grounds for direct appellate

review.” Counsel asks, as a separate procedural matter, that we reform the judgment

adjudicating Jefferson’s guilt to accurately reflect that Jefferson pleaded “not true” to

the allegations in the State’s petition to proceed to adjudication.

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.

386 U.S. 738, 744–45, 87 S. Ct. 1396, 1400 (1967). 1

2 proceeding). Jefferson filed a variety of pro se responses to the Anders brief, but his

responses do not reveal any legitimate grounds for direct appeal; the State did not file a

brief.

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. Except for minor

corrections to the trial court’s judgment and order to withdraw funds addressed below,

we agree with counsel that the appeal is frivolous and without merit; we find nothing

in the record 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).

As noted by counsel and as reflected in the record, Jefferson pleaded “not true”

to the allegations in the State’s petition to proceed to adjudication. Accordingly, we

correct the trial court’s judgment to reflect the record. See Bray v. State, 179 S.W.3d 725,

730 (Tex. App.—Fort Worth 2005, no pet.) (en banc); see also Van Flowers v. State, 629

S.W.3d 707, 711 (Tex. App.—Houston [1st Dist.] 2021, no pet.) (noting that consistent

with its authority to modify a judgment to include or delete an affirmative finding, a

court of appeals can modify judgments to correct errors with respect to court costs and

3 fees, fines, and conflicts between the trial court’s oral pronouncement and the written

judgment, among other things).

Further, the trial court did not orally pronounce at sentencing the $839 fine that

it included in the judgment and then gave credit for time served. With an exception not

applicable here, sentences, including fines, must be orally pronounced in a defendant’s

presence. Ette v. State, 559 S.W.3d 511, 513, 515 (Tex. Crim. App. 2018). Because the

trial court did not pronounce the $839 fine, we delete it from the judgment. See Garza

v. State, No. 02-20-00155-CR, 2022 WL 488933, at *2 (Tex. App.—Fort Worth Feb. 17,

2022, no pet.) (mem. op., not designated for publication).

Additionally, even though the trial court gave Jefferson credit for time served as

to the $314 in court costs, see Tex. Code Crim. Proc. Ann. arts. 42.03, 43.09, we correct

the bill of costs to delete the premature $25 time-payment fee. See Dulin v. State, 620

S.W.3d 129, 129, 133 (Tex. Crim. App. 2021) (holding that a defendant’s appeal

suspends the duty to pay court costs and therefore suspends the running of the clock

for purposes of the time-payment fee). We likewise delete the $45 charge for “CVCF”

from the bill of costs because it duplicates a fee already included in the $133

consolidated felony-conviction court costs in effect at the time of Jefferson’s offense.

See Aviles-Barroso v. State, 477 S.W.3d 363, 398 (Tex. App.—Houston [14th Dist.] 2015,

pet. ref’d) (sustaining CVCF complaint because it could not be individually charged

against the defendant when it was already included in then-Local Government Code

Section 133.102’s consolidated court costs). Jefferson’s actual court costs were $244

4 before the trial court gave him credit for time served, and we reform the judgment and

bill of costs to reflect this.

The trial court also assessed $3,128 in reparations. However, the $633 pretrial-

supervision fee in the community supervision department’s “Revocation

Restitution/Reparation Balance Sheet” included in the record is not supported by

Jefferson’s community-supervision conditions, which ordered him to pay pretrial

supervision fees in the amount of $393. None of the subsequent amendments to his

community-supervision conditions increased this amount. Accordingly, we reform the

reparations amount in the judgment to delete the unsupported $240, and we correct the

judgment and order to withdraw to reflect the new reparations amount of $2,888.

We grant counsel’s motion to withdraw, reform the trial court’s judgment

adjudicating guilt to reflect that Jefferson pleaded “not true” to the State’s allegations,

deduct the $839 fine from the judgment, delete the $25 time-payment fee and $45

“CVCF” fee from the amount of court costs listed in the judgment and bill of costs,

and delete the unsupported $240 pretrial-supervision amount from the reparations

listed in the judgment and order to withdraw. We affirm the trial court’s judgment as

modified. 2 Any motions pending on the date of this opinion are denied.

2 If Jefferson wishes to pursue further review of his case by the Texas Court of Criminal Appeals, he must either retain an attorney to file a petition for discretionary review on his behalf or file a pro se petition for discretionary review. See Khondoker v. State, Nos. 02-14-00461-CR, 02-14-00462-CR, 02-14-00463-CR, 2015 WL 5634244, at *2 (Tex. App.—Fort Worth Sept. 24, 2015, no pet.) (mem. op., not designated for publication). Any petition for discretionary review must be filed within thirty days after

5 Per Curiam

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

Delivered: March 30, 2023

the date of this court’s judgment or the date the last timely motion for rehearing or timely motion for en banc reconsideration is overruled by this court. See Tex. R. App. P. 68.2. Additionally, any petition for discretionary review must be filed with the clerk of the Texas Court of Criminal Appeals and should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 68.3(a), 68.4.