Kendra Philliana Maxion v. State

Opinion

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

No. 02-18-00176-CR ___________________________

KENDRA PHILLIANA MAXION, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 297th District Court Tarrant County, Texas Trial Court No. 1398848D

Before the En Banc Court Memorandum Opinion by Justice Birdwell Justices Pittman and Bassel dissent and concur without opinion. MEMORANDUM OPINION ON EN BANC RECONSIDERATION

As we did in an unrelated appeal with the same issue––Kitchen v. State, No. 02-

18-00374-CR, 2019 WL 30698761, at *1–2 (Tex. App.––Fort Worth July 15, 2019, no

pet. h.) (op. on en banc reconsideration)––we have granted en banc reconsideration in

this appeal. See Tex. R. App. P. 41.2(c), 49.7. In this appeal, a majority of the en banc

court holds that Kendra Philliana Maxion raised only the following two complaints in

her sole point on appeal: (1) that probation fees owed to a community supervision

and corrections department cannot be assessed as reparations in a judgment

adjudicating guilt or revoking probation and (2) that $15 of the total reparations

assessed in her judgment of conviction should be deleted for lack of support in the

record. Because the record does not support $15 of the $555 assessed as reparations,

we delete that $15 from the judgment and affirm the judgment as modified.

Background

On June 16, 2015, the trial court placed Maxion on five years’ deferred-

adjudication community supervision for the third degree felony of evading arrest. See

Tex. Penal Code Ann. § 38.04(b)(2)(A). The judgment assessed court costs of $289

“PAYABLE TO AND THROUGH THE CRIMINAL DISTRICT CLERK’S

OFFICE OF TARRANT COUNTY, TEXAS,” but assessed no fine, no restitution,

and no other charges or fees. As a condition of community supervision, the trial court

required Maxion to pay $60 “each month during the period of supervision” to the

Tarrant County Community Supervision and Corrections Department, beginning on

2 July 15, 2015. The trial court did not require Maxion to pay the $289 in court costs as

a condition of community supervision.

The State eventually filed seven petitions seeking to adjudicate Maxion guilty of

the original offense; the sixth amended petition filed in December 20171 alleged that

Maxion had violated eight conditions of her community supervision, none of which

dealt with whether she had paid her community supervision fees. The trial court held

a hearing on March 28, 2018, at which the State waived several of the alleged

violations and Maxion pleaded true to the remaining violations. The trial court

accepted Maxion’s pleas of true, adjudicated her guilty of the original offense, and

sentenced her to six years’ imprisonment.

The trial judge signed a judgment on April 3, 2018. The judgment shows court

costs of “$0.00,” lists “N/A” for a fine and restitution, and orders Maxion to pay

$555 in reparations. The record contains an unsigned “Revocation

Restitution/Reparation Balance Sheet,” also dated April 3, 2018, from the

Community Supervision and Corrections Department of Tarrant County. The balance

sheet shows that the $555 in reparations consists of $540 in probation fees and $15 in

unspecified fees “DUE TO CSCD.” The record also contains (1) a Bill of Cost from

the Tarrant County District Clerk certifying that “$0.00 . . . is a correct account of the

The State filed its original petition to adjudicate on March 23, 2016. Thus, 1

Maxion was obligated to pay nine months’ of probation fees for July 2015 through March 2016.

3 Court Costs adjudged against” Maxion “up to 3/28/2018,” and (2) an unsigned “List

of Fee Breakdowns” from the Tarrant County District Clerk dated April 3, 2018,

showing that Maxion had been charged and paid $314 in court costs but also showing

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

Maxion appealed from the judgment adjudicating her guilt, but in her brief, she

challenges only the trial court’s assessment of reparations in the judgment.

Record Does Not Support $15 of the Total Reparations

Maxion’s sole point on appeal states, “The trial court violated Appellant’s right

to due process when it imposed money ‘Due to CSCD’ and probation fees as

‘reparations’ in the judgment of conviction.” Her due process argument regarding

probation fees is identical to Kitchen’s argument: it is a general complaint that

probation fees cannot be included in the legal or dictionary definition of reparations,

and Maxion never complains that the record contains no evidentiary basis for the

amount of probation fees assessed. See Kitchen, 2019 WL 3069871, at *2. Accordingly,

we conclude that Maxion’s point does not fairly include as a subsidiary issue the

argument that the $540 in probation fees assessed as reparations does not have a basis

in the record. See id.

Having repeatedly rejected the identical due process argument regarding

whether probation fees may be assessed as reparations, we overrule that part of

Maxion’s point. See id.; Zamarripa v. State, 506 S.W.3d 715, 716 (Tex. App.—Fort

Worth 2016, pet. ref’d); Tucker v. State, Nos. 02-15-00265-CR, 02-15-00266-CR, 2016

4 WL 742087, at *2 (Tex. App.—Fort Worth Feb. 25, 2016, pet. ref’d) (mem. op., not

designated for publication).

But unlike the appellant in Kitchen, Maxion also argues as part of her point that

“[t]he reparations which consist of money ‘Due to CSCD’ are not supported by the

record” and asks us to delete that part of the reparations for that reason. She cites our

opinion in Lewis v. State, in which we struck reparations based on amounts “Due to

CSCD” because the record was not clear where the amounts came from. 423 S.W.3d

451, 461 (Tex. App.––Fort Worth 2013, pet. ref’d). In Maxion’s argument, she asserts,

“What ‘Due to CSCD’ represents or how such a cryptic allegation can be

controverted turns the concept of due process on its head.” We therefore conclude

that her point does include a complaint that there is no basis in the record for the $15

attributable only to administrative financial obligations “DUE TO CSCD.” See id.; see

also Demerson v. State, No. 02-18-00003-CR, 2018 WL 3580893, at *3 (Tex. App.—Fort

Worth July 26, 2018, no pet.) (mem. op., not designated for publication) (collecting

cases from this court deleting fees “Due to CSCD”). We therefore sustain the

remaining part of Maxion’s sole point that challenges the basis for only $15 of the

total reparations amount.

Conclusion

Having determined that $15 of the reparations included in the judgment––

represented in the balance sheet as being “DUE TO CSCD”––has no basis in the

record and sustaining the part of Maxion’s point raising that complaint, we strike $15

5 of the $555 assessed as reparations in the judgment and modify the judgment to assess

reparations of only $540. We likewise modify the order of withdrawal of funds

incorporated into the judgment by reference so that it authorizes the withdrawal of

only $540. Having overruled the rest of Maxion’s sole point, we affirm the trial court’s

judgment as modified.

/s/ Wade Birdwell

Wade Birdwell Justice

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

Delivered: July 18, 2019