Kenneth Ray Martinsky, Jr. v. State

• Court: Court of Appeals of Texas
• Decided: May 21, 2019
• Docket: 06-19-00024-CR
• Status: Published

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-19-00024-CR

KENNETH RAY MARTINSKY, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 6th District Court Lamar County, Texas Trial Court No. 27616

Before Morriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Justice Stevens MEMORANDUM OPINION After Kenneth Ray Martinsky, Jr., pled guilty to continuous violence against the family, 1

his adjudication of guilt was deferred. He was placed on five years’ community supervision and

assessed “Court Costs and Attorney fees” of $633.00. Ten months later, Martinsky’s guilt was

adjudicated, his community supervision was revoked, and he was sentenced to five years’

imprisonment and assessed $633.00 in court costs and attorney fees originally imposed when he

was placed on community supervision. On appeal, Martinsky contends that there was insufficient

evidence of his ability to pay the court costs, which includes $350.00 in court-appointed attorney

fees. Because we find that Martinsky has waived his right to challenge the court costs, we affirm

the trial court’s judgment.

I. Background

On April 10, 2018, Martinsky pled guilty to the charged offense under a plea bargain. On

that same date, the trial court entered its Order of Deferred Adjudication, which included the

assessment of $633.00 for “Court Costs and Attorney fees.” Also on that date, Martinsky initialed

a bill of costs prepared by the district clerk which showed costs totaling $633.00 and included

court-appointed attorney fees in the amount of $350.00. Martinsky also signed the trial court’s

Order Suspending Imposition of Sentence and Placing Defendant on Community Supervision

(CSO) verifying he understood that one of the terms of his community supervision was that he pay

$350.00 in attorney fees and $283.00 in court costs.

1 See TEX. PENAL CODE ANN. § 25.11(a) (West 2019).

2 In December 2018, the State filed its amended motion to proceed with an adjudication of

guilt, alleging that Martinsky had violated six conditions of his community supervision. At the

adjudication hearing, Martinsky pled true to two of the State’s allegations. After considering the

evidence, the trial court found three of the State’s allegations to be true. Pursuant to its findings,

the trial court entered its judgment adjudicating guilt and sentenced Martinsky to five years’

imprisonment and assessed him $633.00 in “Court Costs.” A bill of costs issued by the district

clerk on the same date shows costs totaling $633.00, including $350.00 for court-appointed

attorney fees. Except for the date of issuance, the bill of costs is identical to the one issued in April

2018.

II. Analysis

All complaints about the imposition of court costs in an order of deferred adjudication must

be asserted in a timely appeal of the deferred adjudication order. Perez v. State, 424 S.W.3d 81,

86 (Tex. Crim. App. 2014). This includes insufficiency of the evidence complaints about the

imposition of court-appointed attorney fees. Manuel v. State, 994 S.W.2d 658, 661–62 (Tex. Crim.

App. 1999). A defendant with knowledge of the imposition of court costs and court-appointed

attorney fees in a deferred adjudication order who fails to timely appeal from the deferred

adjudication order forfeits any complaint about court costs and court-appointed attorney fees

assessed in the order, and may not assert those complaints in an appeal from a judgment

adjudicating his guilt. Riles v. State, 452 S.W.3d 333, 337 (Tex. Crim. App. 2015); Perez, 424

S.W.3d at 86; Wiley v. State, 410 S.W.3d 313, 318, 321 (Tex. Crim. App. 2013).

3 Here, the $633.00 in court costs, including $350.00 for court-appointed attorney fees, was

imposed in the Order of Deferred Adjudication. The record shows that, on the same date the Order

of Deferred Adjudication was entered, Martinsky initialed the bill of costs and signed the CSO,

both of which showed the court costs and that they included $350.00 for court-appointed attorney

fees. “Under these circumstances, the presumption of regularity applies,[2] and we must conclude

that [Martinsky] was aware of the requirement that he pay court costs, including the cost of court

appointed attorney fees.” Wiley, 410 S.W.3d at 320–21. As a result, he would have known to

challenge the court costs and attorney fees by direct appeal from the Order of Deferred

Adjudication. By failing to do so, he waived his right to appeal his complaint. Riles, 452 S.W.3d

at 338; Wiley, 410 S.W.3d at 321. We, therefore, overrule Martinsky’s sole issue.

III. Conclusion

For the reasons stated, we affirm the trial court’s judgment.

Scott E. Stevens Justice

Date Submitted: May 20, 2019 Date Decided: May 21, 2019

Do Not Publish

2 See Breazeale v. State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984) (op. on reh’g) (appellate courts “indulge every presumption in favor of the regularity of documents in the trial court”). 4