In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-19-00186-CR ___________________________
SARAH DIANE IVES, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 355th District Court Hood County, Texas Trial Court No. CR13980
Before Gabriel, Bassel, and Womack, JJ. Memorandum Opinion by Justice Gabriel MEMORANDUM OPINION
Appellant Sarah Diane Ives appeals from the trial court’s revocation of her
community supervision, adjudication of her guilt for possession of a controlled
substance of less than one gram, methamphetamine, and imposition of a
twenty-four-month sentence. We modify the trial court’s judgment adjudicating guilt
to delete three charged costs and affirm it as modified. See Tex. R. App. P. 43.2(b).
Ives was indicted with the intentional or knowing possession of a controlled
substance of less than one gram, methamphetamine—a state-jail felony. See Tex.
Health & Safety Code Ann. § 481.115(b); see also id. § 481.102(6). Ives and the State
entered into a plea-bargain agreement under which she agreed to plead guilty in
exchange for the State’s recommendation that an adjudication of her guilt be deferred
and that she be placed on community supervision for a period of five years. The trial
court followed the State’s recommendation and placed Ives on community
supervision for five years without adjudicating her guilt. The trial court then certified
that Ives had no right to appeal the deferred-adjudication order. See Tex. R. App. P.
25.2(a)(2).
During the period of community supervision, the State moved to proceed to an
adjudication of Ives’s guilt based on her violations of the imposed terms and
conditions of community supervision. At the hearing on the State’s motion, Ives
pleaded true to six of the State’s violation allegations, and she pleaded not true to one
of the State’s violation allegations. Ives’s community-supervision officer testified
2 regarding Ives’s failure to comply with the terms and conditions of her community
supervision and recommended that Ives go to a Substance Abuse Felony Punishment
Facility (SAFPF), or if Ives was unwilling to go to a SAFPF, that the court revoke
Ives’s community supervision. Ives testified that she did not want to go to a SAFPF.
Ives stated that she would rather “take [her] state jail time and be done with probation
and done with Hood County.” At the conclusion of the hearing, the trial court found
that Ives had violated the terms and conditions of her community supervision,
adjudicated her guilty of the indicted offense, and sentenced her to twenty-four
months’ confinement. The trial court did not orally pronounce or order restitution.
The trial court included in its judgment adjudicating guilt $1,176 in court costs; this
amount is supported by the district clerk’s subsequent itemized bill of cost. See Tex.
Code Crim. Proc. Ann. art. 103.001(b). The trial court certified that Ives had the right
to appeal from the adjudication and found that she was entitled to court-appointed
counsel on appeal. See Tex. R. App. P. 25.2(a)(2).
Ives’s court-appointed appellate counsel has filed a motion to withdraw,
accompanied by a brief in support of that motion. In his brief, counsel states that in
his professional opinion, this appeal is frivolous and without merit. The brief and
motion present a professional evaluation of the record demonstrating why there are
no arguable grounds for relief. See Anders v. California, 386 U.S. 738, 744 (1967); Kelly
v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). Neither Ives nor the State has
responded to the Anders brief or motion to withdraw.
3 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 and Kelly, we
have a supervisory obligation to undertake an independent examination of the record.
See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v. State,
904 S.W.2d 920, 922–23 (Tex. App.—Fort Worth 1995, no pet.). In this evaluation,
we consider the record, the arguments raised in the Anders brief, and any response
filed by the pro se appellant. See United States v. Wagner, 158 F.3d 901, 902 (5th Cir.
1998); In re Schulman, 252 S.W.3d 403, 409 (Tex. Crim. App. 2008) (orig. proceeding).
After reviewing the itemized bill of cost, we conclude that three amounts must
be deleted from the total amount charged as court costs in the judgment. First, we
find no statutory authority authorizing the $15 assessed for “Motion to
Proceed/Revoke” in the itemized bill of cost. See Eubank v. State, No. 02-18-00351-
CR, 2019 WL 2635564, at *2 (Tex. App.—Fort Worth June 27, 2019, no pet.) (mem.
op., not designated for publication); Thomas v. State, No. 02-18-00337-CR, 2019 WL
166001, at *2 (Tex. App.—Fort Worth January 10, 2019, no pet.) (per curiam) (mem.
op., not designated for publication). Because “[o]nly statutorily authorized costs may
be assessed against a criminal defendant,” we must delete that amount from the costs
charged in the judgment. Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014)
(citing Tex. Code Crim. Proc. Ann. art. 103.002); see Thomas, 2019 WL 166001, at *2.
Second, the $12 charged as a “Restitution Fee” is punitive in nature and must
be orally pronounced upon revocation and adjudication. See Weir v. State, 278 S.W.3d
4 364, 365–66 (Tex. Crim. App. 2009); Byrne v. State, No. 02-19-00147-CR, 2019 WL
6334688, at *2 (Tex. App.—Fort Worth Nov. 27, 2019, no pet.) (mem. op., not
designated for publication); Eubank, 2019 WL 2635564, at *2; Gonzalez v. State, No.
02-17-00373-CR, 2019 WL 983699, at *2 (Tex. App.—Fort Worth Feb. 28, 2019, no
pet.) (per curiam) (mem. op., not designated for publication); Milligan v. State, No. 02-
16-00035-CR, 2016 WL 6123643, at *2 (Tex. App.—Fort Worth Oct. 20, 2016, no
pet.) (mem. op., not designated for publication); see also Tex. Code Crim. Proc. Ann.
art. 42.037(g). It was not; thus, this amount must be deleted as well.
Third, the district clerk charged $150 as a “Capias Warrant Fee.” A $50 fee is
statutorily authorized for “executing or processing an issued . . . capias.” Tex. Code
Crim. Proc. Ann. art. 102.011(a)(2). The record reflects that one arrest capias was
ordered regarding the State’s motion to proceed with an adjudication of guilt and that
one other capias fee was charged when the trial court placed Ives on community
supervision. Thus, one charged capias fee of $50 is not supported by the record. See
Byrne, 2019 WL 6334688, at *2; Reed v. State, No. 02-17-00199-CR, 2018 WL 6844132,
at *1 (Tex. App.—Fort Worth Dec. 31, 2018, no pet.) (per curiam) (mem. op., not
designated for publication). Accordingly, we modify the trial court’s judgment and
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In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-19-00186-CR ___________________________
SARAH DIANE IVES, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 355th District Court Hood County, Texas Trial Court No. CR13980
Before Gabriel, Bassel, and Womack, JJ. Memorandum Opinion by Justice Gabriel MEMORANDUM OPINION
Appellant Sarah Diane Ives appeals from the trial court’s revocation of her
community supervision, adjudication of her guilt for possession of a controlled
substance of less than one gram, methamphetamine, and imposition of a
twenty-four-month sentence. We modify the trial court’s judgment adjudicating guilt
to delete three charged costs and affirm it as modified. See Tex. R. App. P. 43.2(b).
Ives was indicted with the intentional or knowing possession of a controlled
substance of less than one gram, methamphetamine—a state-jail felony. See Tex.
Health & Safety Code Ann. § 481.115(b); see also id. § 481.102(6). Ives and the State
entered into a plea-bargain agreement under which she agreed to plead guilty in
exchange for the State’s recommendation that an adjudication of her guilt be deferred
and that she be placed on community supervision for a period of five years. The trial
court followed the State’s recommendation and placed Ives on community
supervision for five years without adjudicating her guilt. The trial court then certified
that Ives had no right to appeal the deferred-adjudication order. See Tex. R. App. P.
25.2(a)(2).
During the period of community supervision, the State moved to proceed to an
adjudication of Ives’s guilt based on her violations of the imposed terms and
conditions of community supervision. At the hearing on the State’s motion, Ives
pleaded true to six of the State’s violation allegations, and she pleaded not true to one
of the State’s violation allegations. Ives’s community-supervision officer testified
2 regarding Ives’s failure to comply with the terms and conditions of her community
supervision and recommended that Ives go to a Substance Abuse Felony Punishment
Facility (SAFPF), or if Ives was unwilling to go to a SAFPF, that the court revoke
Ives’s community supervision. Ives testified that she did not want to go to a SAFPF.
Ives stated that she would rather “take [her] state jail time and be done with probation
and done with Hood County.” At the conclusion of the hearing, the trial court found
that Ives had violated the terms and conditions of her community supervision,
adjudicated her guilty of the indicted offense, and sentenced her to twenty-four
months’ confinement. The trial court did not orally pronounce or order restitution.
The trial court included in its judgment adjudicating guilt $1,176 in court costs; this
amount is supported by the district clerk’s subsequent itemized bill of cost. See Tex.
Code Crim. Proc. Ann. art. 103.001(b). The trial court certified that Ives had the right
to appeal from the adjudication and found that she was entitled to court-appointed
counsel on appeal. See Tex. R. App. P. 25.2(a)(2).
Ives’s court-appointed appellate counsel has filed a motion to withdraw,
accompanied by a brief in support of that motion. In his brief, counsel states that in
his professional opinion, this appeal is frivolous and without merit. The brief and
motion present a professional evaluation of the record demonstrating why there are
no arguable grounds for relief. See Anders v. California, 386 U.S. 738, 744 (1967); Kelly
v. State, 436 S.W.3d 313, 319 (Tex. Crim. App. 2014). Neither Ives nor the State has
responded to the Anders brief or motion to withdraw.
3 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 and Kelly, we
have a supervisory obligation to undertake an independent examination of the record.
See Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991); Mays v. State,
904 S.W.2d 920, 922–23 (Tex. App.—Fort Worth 1995, no pet.). In this evaluation,
we consider the record, the arguments raised in the Anders brief, and any response
filed by the pro se appellant. See United States v. Wagner, 158 F.3d 901, 902 (5th Cir.
1998); In re Schulman, 252 S.W.3d 403, 409 (Tex. Crim. App. 2008) (orig. proceeding).
After reviewing the itemized bill of cost, we conclude that three amounts must
be deleted from the total amount charged as court costs in the judgment. First, we
find no statutory authority authorizing the $15 assessed for “Motion to
Proceed/Revoke” in the itemized bill of cost. See Eubank v. State, No. 02-18-00351-
CR, 2019 WL 2635564, at *2 (Tex. App.—Fort Worth June 27, 2019, no pet.) (mem.
op., not designated for publication); Thomas v. State, No. 02-18-00337-CR, 2019 WL
166001, at *2 (Tex. App.—Fort Worth January 10, 2019, no pet.) (per curiam) (mem.
op., not designated for publication). Because “[o]nly statutorily authorized costs may
be assessed against a criminal defendant,” we must delete that amount from the costs
charged in the judgment. Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014)
(citing Tex. Code Crim. Proc. Ann. art. 103.002); see Thomas, 2019 WL 166001, at *2.
Second, the $12 charged as a “Restitution Fee” is punitive in nature and must
be orally pronounced upon revocation and adjudication. See Weir v. State, 278 S.W.3d
4 364, 365–66 (Tex. Crim. App. 2009); Byrne v. State, No. 02-19-00147-CR, 2019 WL
6334688, at *2 (Tex. App.—Fort Worth Nov. 27, 2019, no pet.) (mem. op., not
designated for publication); Eubank, 2019 WL 2635564, at *2; Gonzalez v. State, No.
02-17-00373-CR, 2019 WL 983699, at *2 (Tex. App.—Fort Worth Feb. 28, 2019, no
pet.) (per curiam) (mem. op., not designated for publication); Milligan v. State, No. 02-
16-00035-CR, 2016 WL 6123643, at *2 (Tex. App.—Fort Worth Oct. 20, 2016, no
pet.) (mem. op., not designated for publication); see also Tex. Code Crim. Proc. Ann.
art. 42.037(g). It was not; thus, this amount must be deleted as well.
Third, the district clerk charged $150 as a “Capias Warrant Fee.” A $50 fee is
statutorily authorized for “executing or processing an issued . . . capias.” Tex. Code
Crim. Proc. Ann. art. 102.011(a)(2). The record reflects that one arrest capias was
ordered regarding the State’s motion to proceed with an adjudication of guilt and that
one other capias fee was charged when the trial court placed Ives on community
supervision. Thus, one charged capias fee of $50 is not supported by the record. See
Byrne, 2019 WL 6334688, at *2; Reed v. State, No. 02-17-00199-CR, 2018 WL 6844132,
at *1 (Tex. App.—Fort Worth Dec. 31, 2018, no pet.) (per curiam) (mem. op., not
designated for publication). Accordingly, we modify the trial court’s judgment and
5 incorporated order to withdraw funds to deduct $77 from the ordered cost amount
for a total of $1,099.1
Other than these minor adjustments to the charged costs, there is 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). Thus, we grant counsel’s motion to withdraw,
modify the judgment and the incorporated order to withdraw funds to reflect $1,099
in court costs, and affirm the trial court’s judgment as modified. See Penson v. Ohio,
488 U.S. 75, 82–83 (1988); Kelly, 436 S.W.3d at 318–19; Boone v. State, No. 02-15-
00417-CR, 2016 WL 4040563, at *2–3 (Tex. App.—Fort Worth July 28, 2016, no pet.)
(mem. op., not designated for publication).
/s/ Lee Gabriel
Lee Gabriel Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: February 27, 2020
1 $1,176 (court costs awarded in the judgment) – $15 (“Motion to Proceed/Revoke Fee”) – $12 (“Restitution Fee”) – $50 (one charged capias fee) = $1,099.