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

          No. 02-18-00117-CR
     ___________________________

      SAMMY AGUIRRE, Appellant

                     V.

          THE STATE OF TEXAS


  On Appeal from the 297th District Court
         Tarrant County, Texas
       Trial Court No. 1395360W


   Before Meier, Gabriel, and Birdwell, JJ.
  Memorandum Opinion by Justice Birdwell
                           MEMORANDUM OPINION

      After the trial court placed appellant Sammy Aguirre on deferred-adjudication

community supervision for felony assault against a member of his family or

household,1 the court found that he violated a condition of the community

supervision, revoked the community supervision, and sentenced him to four years’

confinement. Aguirre does not appeal his conviction or his sentence. Rather, he

challenges the trial court’s assessment of certain fees and costs. In his first point, he

argues that the trial court erred by assessing $685 in court-appointed attorney’s fees.

In his second point, he asserts that the trial court erred by assessing a $28 cost “Due

to CSCD” and by assessing $1,112 in unpaid probation fees as reparations. We

modify the trial court’s judgment and affirm it as modified.

                                     Background

      The State charged Aguirre with assaulting a member of his family or

household; the charging instrument alleged that he had a prior conviction for that

offense. In December 2014, pursuant to a plea-bargain agreement, he pleaded guilty.

In accordance with the plea bargain, the trial court deferred adjudication of his guilt

and placed him on community supervision for three years. The trial court’s deferred-

adjudication order stated that he owed attorney’s fees in an amount “to be

determined.” A “certificate of proceedings” filed in the record upon his plea stated


      1
       See Tex. Penal Code Ann. § 22.01(a)(1), (b)(2)(A) (West Supp. 2018).


                                           2
the same. Likewise, a bill of costs stated that attorney’s fees were “to be determined,”

and Aguirre’s conditions of community supervision required him to pay attorney’s

fees “in the amount of $TBD.”

      In December 2017, the State filed a petition for the trial court to revoke

Aguirre’s community supervision. After holding a hearing, the trial court found that

Aguirre had violated a condition of his community supervision, convicted him, and

sentenced him to four years’ confinement. In the judgment adjudicating his guilt, the

trial court ordered him to pay $1,825 as reparations. A document filed by the

community supervision and corrections department shows that $1,112 of the

reparations were unpaid probation fees, that Aguirre owed $28 that was “DUE TO

CSCD,” and that he owed $685 in attorney’s fees. 2 The trial court also signed a nunc

pro tunc order that corrected the December 2014 deferred-adjudication judgment so

that it recited that Aguirre owed attorney’s fees of $300. Aguirre brought this appeal.

                                   Attorney’s Fees

      In his first point, Aguirre argues that the trial court erred by requiring him to

pay attorney’s fees. He contends that the court could not require him to pay attorney’s

fees because he was indigent throughout the proceedings, as evidenced by his

representation by appointed counsel. He recognizes that a trial court has authority to

order an indigent defendant to pay attorney’s fees to the extent that the defendant has

      2
       These three amounts equal $1,825; we therefore reject Aguirre’s assertion that
the “composition of [the $1,825] is not entirely clear.”


                                           3
resources to do so. See Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2018).

He argues, however, that the trial court never found that he was able to pay any

amount and that the court therefore lacked the authority to require him to do so. He

contends that because he “was found to be indigent . . . and there is nothing in the

record to demonstrate a material change in circumstances, the evidence is insufficient

to support” the requirement that he pay $685 in attorney’s fees. Finally, he argues that

the trial court violated his right to due process by assessing the attorney’s fees.

       With respect to the $300 in attorney’s fees that arise from the initial deferred-

adjudication proceedings (as established by the “to be determined” language in the

2014 judgment and by the $300 assessment in the 2018 nunc pro tunc order), the

State contends that Aguirre forfeited his complaint by not objecting to the

requirement that he pay attorney’s fees when he was originally placed on community

supervision. Generally, to present a complaint on appeal, a defendant must have

presented the same complaint to the trial court and must have received a ruling. Tex.

R. App. P. 33.1(a). These preservation-of-error requirements apply to constitutional

complaints, including assertions of violations of due process. Yazdchi v. State, 428

S.W.3d 831, 844 (Tex. Crim. App. 2014), cert. denied, 135 S. Ct. 1158 (2015).

       To argue that Aguirre forfeited his complaint about the trial court’s assessment

of $300 in attorney’s fees, the State relies on the court of criminal appeals’s decision in

Riles v. State, 452 S.W.3d 333 (Tex. Crim. App. 2015). We agree that Riles compels us

to hold that Aguirre forfeited his complaint.

                                             4
      In Riles, like in this case, the trial court deferred adjudication of Riles’s guilt,

placed her on community supervision, and ordered her to pay attorney’s fees without

specifying an amount. Id. at 334. Also like in this case, the record contained other

documents (including plea paperwork) reciting Riles’s obligation to pay attorney’s

fees. Id. Riles did not appeal from the order deferring guilt and imposing community

supervision. Id. When the trial court revoked her community supervision and

adjudicated her guilt, the court required her to pay $1,000 in attorney’s fees. Id. at 335.

On appeal from the judgment adjudicating her guilt, she argued, as Aguirre argues,

that the “trial court erred in ordering her to pay the [attorney’s fees] without any

evidence that she had the ability to pay [them].” Id.

      The court of criminal appeals held that Riles had forfeited her complaint. Id. at

337–38. The court explained that the record established her knowledge that the trial

court had imposed an unspecified attorney’s fee in the deferred-adjudication order

and that she had an obligation at that time to challenge “the sufficiency of the

evidence supporting payment of the fee.” Id. at 337. The court explained that “any

issue related to the original plea proceeding [could] be taken only in an appeal to the

original order of deferred adjudication.” Id. (citing Manuel v. State, 994 S.W.2d 658,

661–62 (Tex. Crim. App. 1999)). Further, the court held that because Riles had

knowledge of her obligation to pay attorney’s fees, her lack of knowledge of the exact

amount was inconsequential. Id. In sum, the court held that Riles “had knowledge that



                                            5
she was to be charged for her appointed attorney fee, . . . but she forfeited her claim

by foregoing her initial appeal.” Id. at 338.

       The principles supporting the decision in Riles compel the same result here.

Although Aguirre did not have knowledge of the particular amount of attorney’s fees

that the trial court would later assess against him, he knew in 2014, when the trial

court signed its order deferring adjudication of his guilt, that the trial court was

requiring him to pay attorney’s fees. Indeed, at that time, he signed a document

reciting the conditions of his community supervision, including that he pay attorney’s

fees in an amount to be determined. He did not appeal the trial court’s deferred-

adjudication order. We therefore hold that he forfeited his complaint that the trial

court lacked authority to assess $300 in attorney’s fees for representation leading to

the deferred-adjudication order. See Tex. R. App. P. 33.1(a); Riles, 452 S.W.3d at 337–

38; Manuel, 994 S.W.2d at 661–62; see also Ford v. State, No. 12-17-00307-CR, 2018 WL

1737085, at *2–3 (Tex. App.—Tyler Apr. 11, 2018, no pet.) (mem. op., not designated

for publication) (citing Riles and holding similarly); Moore v. State, No. 06-14-00209-CR,

2015 WL 1448389, at *3–4 (Tex. App.—Texarkana Mar. 31, 2015, no pet.) (mem. op.,

not designated for publication) (same). We overrule his first point to that extent.3


       3
        Aguirre also contends that the record reflects that he has already paid the $300
assessment and that the amount should be credited against the total amount of
reparations owed. The State contests whether a notation in the clerk’s record proves
that Aguirre has paid the fees, and we are unable to determine such. We trust that if
Aguirre has already paid the fees, the clerk of the court will not seek collection again.


                                                6
      The trial court required Aguirre to pay $685 in attorney’s fees. With respect to

the remaining $385, the State concedes that nothing within the record supports the

imposition of those fees and asks us to strike them. We agree that nothing in the

record supports the remaining $385 in fees. We therefore sustain Aguirre’s first point

to that extent. See Steen v. State, Nos. 02-18-00036-CR, 02-18-00220-CR, 2018 WL

4782164, at *2 (Tex. App.—Fort Worth Oct. 4, 2018, no pet.) (mem. op., not

designated for publication) (reciting the State’s concession that costs were unlawful

and deleting the costs).

                                     Other Costs

      In his second point, Aguirre argues that the trial court erred by ordering him to

pay, as part of the $1,825 reparations, $28 “Due to CSCD” and $1,112 in unpaid

probation fees.

      We have repeatedly held that a cost that is labeled “Due to CSCD,” without

any further explanation, must be deleted because we cannot discern authority for the

cost. See, e.g., Gatewood v. State, No. 02-18-00021-CR, 2018 WL 4625780, at *2 (Tex.

App.—Fort Worth Sept. 27, 2018, no pet.) (mem. op., not designated for publication);

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). We reach

the same holding here and sustain Aguirre’s second point to the extent that we will

delete the $28 “Due to CSCD” cost.



                                          7
      Concerning the $1,112 cost as reparations for unpaid probation fees, Aguirre

argues that unpaid probation fees cannot be assessed as reparations. He concedes,

however, that we have held to the contrary. Indeed, we have consistently rejected the

precise argument that Aguirre makes here.4 See, e.g., Riojas v. State, No. 02-18-00026-

CR, 2018 WL 3580897, at *1 (Tex. App.—Fort Worth July 26, 2018, no pet.) (mem.

op., not designated for publication) (collecting cases). In accordance with our prior

decisions, we overrule Aguirre’s second point to the extent that he complains about

the $1,112 as reparations for unpaid probation fees.

                                     Conclusion

      Having sustained parts of Aguirre’s two points and having overruled other

parts, we modify the trial court’s judgment by deleting $385 of the attorney’s fees

ordered by the trial court and the $28 “Due to CSCD” cost, thus reducing the total

amount of reparations owed to $1,412. We affirm the trial court’s judgment as

modified. See Tex. R. App. P. 43.2(b).

                                                       /s/ Wade Birdwell

                                                       Wade Birdwell
                                                       Justice

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

Delivered: December 31, 2018


      4
        We note that Aguirre does not contest that he owed probation fees and that
the fees were unpaid.

                                          8
