                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-19-00055-CR


                          DONALD RAY DAVIS, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 108th District Court
                                   Potter County, Texas
            Trial Court No. 72363-E, Honorable Douglas R. Woodburn, Presiding

                                      April 17, 2020

                            MEMORANDUM OPINION
                        Before PIRTLE and PARKER and DOSS, JJ.


       Appellant, Donald Ray Davis, appeals the trial court’s decision to adjudicate him

guilty of the offense of aggravated assault with a deadly weapon, and impose a sentence

of ten years’ incarceration. We affirm the trial court’s judgment.


                           Factual and Procedural Background


       Appellant was indicted for the offense of aggravated assault with a deadly weapon

on January 11, 2017. Pursuant to a plea bargain agreement, appellant pled guilty to the
offense on April 20, 2017. The trial court accepted the plea-bargained terms and deferred

adjudication of appellant’s guilt conditioned upon appellant’s adherence to specified terms

of community supervision for a period of eight years. On August 1, 2017, the State filed

a motion to proceed to an adjudication of guilt, which alleged that appellant had violated

three terms of his community supervision. The violations alleged by the State were that

appellant committed the crime of arson while he was in Topeka, Kansas; failed to pay a

$60 supervision fee for May of 2017; and failed to pay a $100 transfer fee by May 18,

2017.


        A hearing was held on the motion on January 30, 2019. Appellant pled “not true”

to the State’s allegations. Following a brief hearing, the trial court adjudicated appellant

guilty of the aggravated assault with a deadly weapon charge and assessed his

punishment at ten years’ incarceration. From this judgment, appellant timely appeals.


        Appellant presents four issues by his appeal. Appellant’s first issue contends that

the trial court abused its discretion by admitting a document purporting to be a prior

conviction of appellant into evidence over appellant’s hearsay objection. By his second

issue, appellant contends that the trial court violated appellant’s right to confrontation.

Appellant’s third issue contends that the trial court abused its discretion in adjudicating

appellant’s guilt because the evidence was insufficient to prove that appellant violated the

terms of his community supervision. Finally, by his fourth issue, appellant contends that

the judgment should be reformed to waive costs or modified to reflect only statutorily

authorized costs.




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Issues One, Two, and Three


       By his first two issues, appellant challenges the trial court’s admission of a

document purporting to be a judgment reflecting appellant’s conviction for arson in

Kansas. Appellant’s first issue is presented in terms of the evidence being hearsay, while

his second issue challenges the evidence as a violation of appellant’s confrontation rights.

Appellant contends that the judgment was not sufficiently connected to him such that it

could be used to establish that he violated the terms of his community supervision. By

his third issue, appellant contends that the evidence was insufficient to prove that he

violated any terms of his deferred adjudication community supervision.


       An appellate court reviews whether a trial court has properly revoked community

supervision under an abuse of discretion standard. Leonard v. State, 385 S.W.3d 570,

576 (Tex. Crim. App. 2012) (op. on reh’g). An abuse of discretion occurs if the trial court’s

ruling lies outside the zone of reasonable disagreement, Henley v. State, 493 S.W.3d 77,

83 (Tex. Crim. App. 2016), or if its decision is arbitrary, unreasonable, or made without

reference to any guiding rules or principles. Rhomer v. State, 569 S.W.3d 664, 669 (Tex.

Crim. App. 2019).


       To revoke community supervision, whether it be regular probation or deferred

adjudication, the State must prove at least one violation of probation by a preponderance

of the evidence. Hacker v. State, 389 S.W.3d 860, 864-65 (Tex. Crim. App. 2013). A

preponderance of the evidence means that greater weight of the credible evidence which

would create a reasonable belief that the defendant has violated a condition of his

probation. Id. at 865.



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        We need not address each of the specific challenges raised by appellant relating

to the admission of the Kansas judgment because the State met its burden to prove that

appellant violated the terms of his community supervision. The State was required to

prove that appellant violated the terms of his community supervision in one of the

manners identified in the State’s motion to proceed to adjudication. See id. at 864-65. It

did so when appellant testified that he committed arson and was convicted of the offense

in Topeka, Kansas.1 We note that appellant testified that he committed the arson offense

after his trial counsel specifically advised him on the record that his testimony could be

used by the trial judge to find the State’s allegation to be true. The State was only required

to prove that appellant committed a violation of the terms of his community supervision,

not that he had been convicted of an offense. See Hancock v. State, 491 S.W.2d 139,

141 (Tex. Crim. App. 1973).            Likewise, proof by a preponderance of the evidence

establishing that appellant violated one ground for revocation is sufficient to support the

trial court’s decision to proceed to an adjudication of appellant’s guilt. Smith v. State, 286

S.W.3d 333, 342 (Tex. Crim. App. 2009).                  Because the evidence established that

appellant violated a term of his community supervision that was alleged by the State, any

error in the admission of the Kansas judgment was rendered harmless. See Moreno v.

State, Nos. 01-15-00997-CR, 01-15-00998-CR, 2017 Tex. App. LEXIS 726, at *6-7 (Tex.



        1   Appellant contends that he was “essentially forced to testify” after the Kansas judgment was
admitted into evidence. The record does not reflect appellant’s motivation for testifying. Certainly, the
record does not establish that appellant felt compelled to testify to rebut the Kansas judgment when his
testimony established that he had committed the offense reflected in the Kansas judgment. Likewise,
appellant fails to cite any authority that would support the position that a decision to testify is rendered
involuntary when it is induced by a trial court’s evidentiary error. See Vercher v. State, No. 03-13-00799-
CR, 2015 Tex. App. LEXIS 10337, at *9-10 (Tex. App.—Austin Oct. 7, 2015, no pet.) (mem. op., not
designated for publication) (“Vercher has not cited any authority in support of his argument that a
defendant’s decision to testify is not voluntary when made in response to alleged errors committed by the
trial court.”).

                                                     4
App.—Houston [1st Dist.] Jan. 26, 2017, no pet.) (mem. op., not designated for

publication) (“Any error in admitting Cruz's out-of-court statements was harmless, as the

rest of the evidence established other grounds sufficient to adjudicate Moreno’s guilt.”).


       Because appellant’s testimony is sufficient to establish that the State properly

proved a ground for adjudication, we overrule each of appellant’s first three issues.


Issue Four


       By his fourth issue, appellant contends that the trial court’s judgment adjudicating

appellant guilty should be reformed to waive costs assessed against appellant or to reflect

only those costs for which there is a statutory basis.


       “[C]ourt costs are not part of the guilt or sentence of a criminal defendant, nor must

they be proven at trial; rather, they are ‘a nonpunitive recoupment of the costs of judicial

resources expended in connection with the trial of the case.’” Johnson v. State, 423

S.W.3d 385, 390 (Tex. Crim. App. 2014) (quoting Armstrong v. State, 340 S.W.3d 759,

767 (Tex. Crim. App. 2011)). In reviewing the assessment of court costs on appeal, we

determine if there is a basis for the cost, not if there was sufficient evidence offered at

trial to prove each cost. Id. “Requiring a convicted defendant to pay court costs does not

alter the range of punishment, is authorized by statute, and is generally not conditioned

on a defendant’s ability to pay.” Young v. State, No. 12-19-00263-CR, 2019 Tex. App.

LEXIS 11269, at *2 (Tex. App.—Tyler Dec. 31, 2019, no pet.) (citing TEX. CODE CRIM.

PROC. ANN. art. 42.16 (West 2018); Armstrong, 340 S.W.3d at 767; and Johnson v. State,

405 S.W.3d 350, 353 (Tex. App.—Tyler 2013, no pet.)).




                                             5
       While the trial court did not determine whether appellant had a present ability to

pay costs, the assessment of costs is authorized even if appellant has no present ability

to pay. Id. The trial court determined that appellant did not have a present ability to pay

costs but that he will in the future.      We do not find anything erroneous in this

determination.


       Appellant also contends that the “Sheriff Fees” and “Sheriff Service Fee” that were

assessed against him in the Bill of Costs do not have statutory mandates. Article 102.011

of the Texas Code of Criminal Procedure authorizes the imposition of fees for services

provided by peace officers. See TEX. CODE CRIM. PROC. ANN. art. 102.011 (West Supp.

2019). In the original Bill of Costs that was attached to the trial court’s January 30, 2019

judgment, the Sheriff’s Fees assessed against appellant were itemized as follows: $10.00

for bonds, $5.58 for subpoena service, $60.00 for warrants, and $445.00 for

transportation expenses. Each of these fees are mandated by article 102.011. When a

subsequent Bill of Costs was issued, it listed a $10.00 Sheriff Fee and a $510.58 Sheriff

Service Fee.     It appears that the $510.58 Sheriff Service Fee combines the $5.58

subpoena service, $60.00 warrants, and $445.00 transportation expenses. The Sheriff

Fees in the subsequent Bill of Costs appear to reflect the $10.00 bond fee. Appellant

does not challenge the itemized fees assessed in the original Bill of Costs and it appears

that each of these fees are specifically authorized by article 102.011.


       We overrule appellant’s fourth issue.




                                               6
                                        Conclusion


         Having overruled each of appellant’s issues, we affirm the judgment of the trial

court.




                                                       Judy C. Parker
                                                          Justice


Do not publish.




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