                                                                     PD-0694-15
               PD-0694-15                           COURT OF CRIMINAL APPEALS
                                                                    AUSTIN, TEXAS
                                                    Transmitted 6/5/2015 9:34:32 AM
                                                      Accepted 6/8/2015 3:15:57 PM
                                                                     ABEL ACOSTA
               NO._________________
                                                                             CLERK

                     IN THE

       COURT OF CRIMINAL APPEALS

                    OF TEXAS



           CHARLES BLACKSHIRE
                Petitioner

                        v.

               THE STATE OF TEXAS
                    Respondent



Petition is in Cause No.1270086D from the 396th
   Criminal Court of Tarrant County, Texas,
      and Cause No. 02-12-00364-CR in the
Court of Appeals for the Second District of Texas



 PETITION FOR DISCRETIONARY REVIEW



                             Kimberley Campbell
                             TBN: 03712020
                             Factor, Campbell & Collins
                             Attorneys at Law
                             5719 Airport Freeway
                             Phone: (817) 222-3333
                             Fax: (817) 222-3330
June 8, 2015                 Email: lawfactor@yahoo.com
                             Attorneys for Petitioner
                             Charles Blackshire
              IDENTITY OF PARTIES AND COUNSEL

The following is a list of all parties to the trial court’s final judgment,
and the names and addresses of all trial and appellate counsel.

Trial Court Judge:                Hon. George Gallagher,
                                  396th Criminal Court, Tarrant County

Petitioner:                       Charles Blackshire

Petitioner’s Trial Counsel:       Hon. John Beatty
                                  TBN: 01992400
                                  Attorney at Law
                                  912 West Belknap
                                  Fort Worth, Texas 76102

Petitioner’s Counsel              Hon. Kimberley Campbell
on Appeal:                        TBN: 03712020
                                  Factor, Campbell & Collins
                                  Attorneys at Law
                                  5719 Airport Freeway
                                  Fort Worth, Texas 76117

Appellee:                         The State of Texas

Appellee’s Trial Counsel:         Hon. William Vassar
                                  TBN: 24039224
                                  District Attorney’s Office
                                  401 W. Belknap
                                  Fort Worth, Texas 76196

Appellee’s Counsel                Hon. Charles Mallin
on Appeal:                        TBN: 12867400
                                  Hon. Andy Porter
                                  TBN: 24007857
                                  District Attorney’s Office
                                  401 W. Belknap Street
                                  Fort Worth, Texas 76196




                                    ii
                                   TABLE OF CONTENTS
                                                                                                           page

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . .1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . 2

GROUNDS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

REASONS FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

I.       The Court of Appeals erred when it failed to address all of
         Appellant’s complaints on remand. . . . . . . . . . . . . . . . . . . . . . . . 3

         A.        Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

         B.        Blackshire I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

         C.        Blackshire II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

         D.        Blackshire III. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

         E.        Controlling Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

                                                       iii
APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9




                                                     iv
                             INDEX OF AUTHORITIES

Cases                                                                                       page

Adkins v. State,
      764 S.W.2d 782 (Tex. Crim. App. 1988). . . . . . . . . . . . . . . . . . . . . 7

Blackshire v. State,
      No. 02-12-00364-CR, 2013 WL 4679211 (Tex. App.–
              Fort Worth, August 29, 2013, pet. granted)
                     (mem. op., not designated for publication)
                          (Blackshire I). . . . . . . . . . . . . . . . . . . . . . . . . 1, 4

Blackshire v. State,
      02-12-00364-CR, 2014 WL 1512961 (Tex. Crim. App. 2014)
              (per curium) (not designated for publication)
                     (Blackshire II). . . . . . . . . . . . . . . . . . . . . . . . . . .1-2, 4, 5

Blackshire v. State, 02-12-00364-CR,2015 WL 3422498 (Tex. App.–
      Fort Worth, May 28, 2015, no. pet. h.)
              (mem. op., not designated for publication)
                      (Blackshire III). . . . . . . . . . . . . . . . . . . . . . . . . . . .2, 5, 6

Carmell v. State,
     331 S.W.3d 450 (Tex. App. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . .6

Garrett v. State,
      749 S.W.2d 784 (Tex. Crim. App. 1986). . . . . . . . . . . . . . . . . . . . . 6

Keehn v. State,
      233 S.W.3d 348 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . 7

Malik v. State,
      953 S.W.2d 234 (Tex. Crim. App. 1997). . . . . . . . . . . . . . . . . . . . . 6

Williams v. State,
      145 S.W.3d 737 (Tex. App.–Fort Worth 2004, no pet.). . . . . . . . .6



                                                 v
Court Rules

T EX. R. A PP. P. 47.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7




                                                     vi
          STATEMENT REGARDING ORAL ARGUMENT

        Because Petitioner does not believe that oral argument will

materially assist the Court in its evaluation of matters raised by this

pleading, Petitioner respectfully waives oral argument.

                     STATEMENT OF THE CASE

        On June 11, 2012, Blackshire was placed on deferred adjudication

for the felony offense of unlawful possession of a firearm by a felon.

(C.R. 27). On July 20, 2012 the State filed its Petition to Proceed to

Adjudication alleging three different violations of community

supervision conditions as grounds. (C.R. 35). Blackshire entered an

open plea of “true” to two of the grounds. (C.R. 43-45). The trial court

found the two grounds to be true, and sentenced Blackshire to six (6)

years    incarceration   in   the   Texas   Department      of   Criminal

Justice–Institutional Division. (C.R. 47). Blackshire timely appealed,

and this Court partially sustained his complaints. See Blackshire v. State,

No. 02-12-00364-CR, 2013 WL 4679211 (Tex. App.–Fort Worth, August

29, 2013, pet. granted) (mem. op., not designated for publication)

(Blackshire I), vacated at PD-1368, 2014 WL 1512961 (Tex. Crim. App.

April 16, 2014) (per curium) (not designated for publication). The Court

of Criminal Appeals vacated the opinion and remanded. Blackshire v.

                                     1
State, 2014 WL 1512961 at *1 (Tex. Crim. App. 2014) (per curium) (not

designated for publication) (Blackshire II).

            STATEMENT OF PROCEDURAL HISTORY

      The opinion of the Second Court of Appeals on remand affirming

Mr. Blackshire’s judgment was handed down on May 28, 2015. See

Blackshire v. State, 02-12-00364-CR,2015 WL 3422498 (Tex. App.–Fort

Worth, May 28, 2015, no. pet. h.) (mem. op., not designated for

publication) (Blackshire III). This timely Petition for Discretionary

review ensued.

                      GROUNDS FOR REVIEW

                   GROUND FOR REVIEW ONE

I.    The Court of Appeals erred when it failed to address all of
      Appellant’s complaints on remand.

                      REASONS FOR REVIEW

1.    The Second Court of Appeals has so far departed from the

accepted and usual course of judicial proceedings, or so far sanctioned

such a departure by a lower court, as to call for an exercise of the Court

of Criminal Appeals’ power of supervision.




                                    2
                                ARGUMENT

               GROUND FOR REVIEW ONE (Restated)

I.     The Court of Appeals erred when it failed to address all of
       Appellant’s complaints on remand.

       A.      Facts

       On June 11, 2012, Charles Blackshire (“Blackshire” or

“Appellant”) was placed on deferred adjudication for the felony

offense of unlawful possession of a firearm by a felon. (C.R. 27). In the

Order of Deferred Adjudication from that proceeding, the trial court

assessed $284 in court costs, and $900 in attorney fees.1 (C.R. 27-28).

On July 20, 2012 the State filed its Petition to Proceed to Adjudication

alleging three different violations of community supervision conditions

as grounds. (C.R. 35). Blackshire entered an open plea of “true” to two

of the grounds. (C.R. 43-45). The trial court found those two grounds

to be true, and sentenced Blackshire to six (6) years incarceration in the

Texas Department of Criminal Justice–Correctional Institutions

Division. (C.R. 47). In the Judgment Adjudicating Guilt, the trial court

assessed a total of $309 in court costs; reparations in the amount of



1

 Blackshire had been found to be indigent by the trial court, which subsequently
appointed counsel. (C.R. 16, 17).

                                        3
$1592; and assessed attorney fees in the amount of $1,400 as a condition

of parole.2 (C.R. 47-48). The record contains no evidence that the court

had determined Blackshire was no longer indigent. (C.R. passim).

       B.      Blackshire I

       On appeal, Blackshire challenged the reparations and court costs

entered in the judgment of conviction. The detail of appeals modified

and affirmed the judgment entered in the trial court. See Blackshire, 2013

WL 4679211 at *2. (Blackshire I).

       C.      Blackshire II

       In response to the opinion of the court of appeals, Blackshire

filed a timely Petition for Discretionary Review to this Court, which

summarily vacated the opinion of the Second Court of Appeals without

further briefing. Blackshire, 2014 WL 1512961 at *1. (Blackshire II). In

pertinent part, this Court’s per curium opinion pointed out that:

       On appeal, [Blackshire] argued, among other things, that the
       evidence was insufficient to support the $72 court cost fee to
       “CSCD.” The Court of Appeals disagreed, finding the evidence
       sufficient. . .Appellant has filed a petition for discretionary
       review of this decision. . .The Court of Appeals in the instant
       case did not have the benefit of our opinions in Johnson and
       Perez. Accordingly, we grant Appellant's petition for

2

 Blackshire was again found to be indigent by the trial court and provided
appointed counsel. (C.R. 39, 40).

                                        4
      discretionary review, vacate the judgment of the Court of
      Appeals, and remand this case to the Court of Appeals in light
      of our opinions in Johnson and Perez.

Id.

      D.     Blackshire III

      On remand, Blackshire raised three points of error, challenging

the court costs, appointed attorney fees, and the trial court’s order that

Blackshire pay the appointed attorney fees as a condition of parole. The

Second Court of Appeals addressed only a portion of Blackshire’s

complaint, that which specifically challenged the $72 “DUE TO CSCD”

assessed in the judgment by the trial court as reparations. The court

explained its limited scope of review, stating:

      Even though both Blackshire and the State rebriefed their
      arguments pertaining to all of Blackshire's original points on
      appeal after the court of criminal appeals remanded this case
      back to this court, because the Court remanded back to this court
      specifically to address the $72 due to CSCD, we have confined
      our opinion on remand to this fee only.

Blackshire III, 2015 WL 3422498 at *1.

      E.     Controlling Law

      The Texas Court of Criminal Appeals has held that when it

reverses and remands a case to the court of appeals, the court of

appeals is not limited on remand to considering only the issue the court


                                    5
of criminal appeals reviewed and reversed; the court of appeals on

remand may even review unassigned error that was preserved in the

trial court. See Garrett v. State, 749 S.W.2d 784, 786-87 (Tex. Crim. App.

1986), overruled in part on other grounds by Malik v. State, 953 S.W.2d 234

(Tex. Crim. App. 1997); Carmell v. State, 331 S.W.3d 450, 458 (Tex. App.

2010).

         Moreover, although the Second Court of Appeals expressed a

belief in Blackshire III that it was somehow limited to reviewing the $72

CSCD complaint on remand, see Blackshire III, 2015 WL 3422498 at *1,

the Court in an earlier case knew differently:

         As the court of criminal appeals recognized in Carroll v. State,
         “The Rules of Appellate Procedure ... do not specifically address
         the scope of an intermediate appellate court’s review following
         a remand from [the Texas Court of Criminal Appeals].” In
         Carroll, however, the court held that “the courts of appeals are
         not limited on remand to deciding the pertinent point of error
         based solely on the explicit basis set out by this Court in a
         remand order.” Accordingly, while the court of criminal
         appeals’s holding on Appellant’s petition for discretionary
         review pertains only to Appellant's voice exemplar and does not
         specifically address his complaint as to the denial of his request
         to show the jury the condition of his mouth, we will reexamine
         our holding on the latter issue before turning to the question of
         whether Appellant was harmed by the trial court’s rulings.

Williams v. State, 145 S.W.3d 737, 740 (Tex. App.–Fort Worth 2004, no

pet.) (citations omitted)(alterations in original).


                                      6
       Moreover, as recognized by this Court, it would be a violation of

Texas law for this Court to limit the scope of review for a court of

appeals on remand:

       [F]or this Court to issue an “order of remand” to restrict the
       court of appeals in renewed exercise of its own jurisdiction,
       power and authority would seem to be an impossible and
       unwarranted abridgement of constitutional grant of same to
       courts of appeals by Article V, § 6, Constitution of Texas, as
       implemented by Articles 4.03, 44.24 and 44.25, V.A.C.C.P.

Adkins v. State, 764 S.W.2d 782, 784 (Tex. Crim. App. 1988).

       “The court of appeals must hand down a written opinion that is

as brief as practicable but that addresses every issue raised and

necessary to final disposition of the appeal.” T EX. R. A PP. P. 47.1; see also

Keehn v. State, 233 S.W.3d 348 (Tex. Crim. App. 2007). Because the

Second Court of Appeals failed to properly address every issue raised,

this Court should exercise its power of supervision and correct that

failure.

                          PRAYER FOR RELIEF

       WHEREFORE,           PREMISES         CONSIDERED,           Petitioner

respectfully prays that this Court grant discretionary review and allow

each party to fully brief and argue the issues before the Court of

Criminal Appeals, and that upon reviewing the judgment entered


                                       7
below, that this Court reverse the opinion of the Second Court of

Appeals and reverse the conviction entered below.

                                        Respectfully submitted,

                                        /s/Kimberley Campbell
                                        Kimberley Campbell
                                        TBN: 03712020
                                        Factor, Campbell & Collins
                                        Attorneys at Law
                                        5719 Airport Freeway
                                        Fort Worth, Texas 76117
                                        Phone: (817) 222-3333
                                        Fax: (817) 222-3330
                                        Email: lawfactor@yahoo.com
                                        Attorneys for Petitioner
                                        Charles Blackshire

                 CERTIFICATE OF COMPLIANCE

       I hereby certify that the word count for the portion of this filing
covered by Rule 9.4(i)(1) of the Texas Rules of Appellate Procedure is
2,050.

                                        /s/Kimberley Campbell
                                        Kimberley Campbell


                     CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing
instrument has been furnished to counsel for the State’s Prosecuting
Attorney and the Tarrant County District Attorney by a manner
compliant with the Texas Rules of Appellate Procedure, on this 5th day
of June , 2015.

                                        /s/Kimberley Campbell
                                        Kimberley Campbell

                                    8
                          APPENDIX

1.   Opinion of the Second Court of Appeals.




                               9
                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-12-00364-CR


CHARLES BLACKSHIRE A/K/A                                         APPELLANT
CHARLIE BLACKSHIRE

                                      V.

THE STATE OF TEXAS                                                     STATE


                                   ----------

          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1270086D

                                   ----------

               MEMORANDUM OPINION ON REMAND1

                                   ----------

      This case is on remand to this court from the Texas Court of Criminal

Appeals. On original submission, Blackshire, in two points, appealed the trial

                                                      tions and $309 in court

costs, following the revocation of his deferred adjudication community

      1
      See Tex. R. App. P. 47.4.
supervision. Blackshire v. State, No. 02 12 00364 CR, 2013 WL 4679211 (Tex.

App. Fort Worth Aug. 29, 2013) (not designated for publication). Subsumed in

his ar

in the amount of                              Id. at *2. This court modified the trial



attorney fees in the amount of $900) in reparations, and affirmed the judgment as

modified. Id. In modifying the judgment, this court held that sufficient evidence

                                                                             Id.

         Blackshire then petitioned the court of criminal appeals for discretionary

review. During the time in which Blackshire       petition was pending in the court of

criminal appeals regarding our opinion on original submission, the court of

criminal appeals handed down Johnson v. State, 423 S.W.3d 385 (Tex. Crim.

App. 2014), in which the Court set forth a roadmap for resolving questions

regarding court costs. In light of this opinion, the Court vacated our judgment

a

Bl                                                   regarding whether the evidence
                                                                         2
was sufficient to support the $72 court cost fee payable                     Blackshire




         2
       Even though both Blackshire and the State rebriefed their arguments
                                        l points on appeal after the court of criminal
appeals remanded this case back to this court, because the Court remanded
back to this court specifically to address the $72 due to CSCD, we have confined
our opinion on remand to this fee only.


                                          2
v. State, No. PD-1368-13, 2014 WL 1512961 (Tex. Crim. App. 2014) (not

designated for publication).

      Relevant    to    this   case   on   remand,     Johnson      makes     clear    that



criminal trial, does not constitute a new record for purposes of appeal. See Tex.

R. App. P. 34.5(a) (listing items that generally must be included in a record on

appeal); see also Johnson, 423 S.W.3d at 391. Thus, this court is permitted to



See Johnson, 423 S.W.3d at 392                 nclude that a bill of costs is a relevant

item that if omitted from the record, can be prepared and added to the record via

a suppl

      Here, the trial court has provided two supplement                               In its

first supplemental cl                                          a      ill of Cost

                                                                   a certified cost sheet

attributable to the     Community Supervision and Corrections Department of

Tarrant County.     This sheet contain

Both the bill of cost and the CSCD sheet are stamped by the trial court clerk, and

                                                       See Shaw v. State, No. 14-12-

00876-CR, 2014 WL 4700683, at *1 (Tex. App.            Houston [14th Dist.] Sept. 23,

              . . . report in this record is a compliant bill of costs because it

contains an itemized list of costs, is certified by the district clerk, and is signed by

                          (mem. op. on remand) (not designated for publication).


                                           3
      Johnson

costs need not be supported by a bill of costs in the appellate record for a

reviewing court to conclude that the assessed court costs are supported by facts

in              Johnson, 423 S.W.3d at 395.

      In this case, we originally held that the $72 due to CSCD was supported by

evidence that the trial court had imposed a condition in his community



and that the record reflected that Blackshire had been tested multiple times

during his community supervision.        Blackshire, 2013 WL 4679211 at *2.



documenting why the trial court                            Id. Even though the

Court held in Johnson that a bill of costs was not necessary, although preferred,



                                  ition of court costs, nonetheless, the court of



this court to address the $72 due to CSCD. See Johnson, 423 S.W.3d at 395

96; Blackshire, 2014 WL 1512961 at *1.

      Because the appellate record now contains two supplements that are



specifically attributing the $72 costs to CSCD, and because there remains further

evidence in the record that these costs are directly related to the condition of

                                                                 which evidence


                                         4
supports he took

argument that there is insufficient evidence in the record for the imposition of the

$72 fee due to CSCD.



                                     ,                        udgment adjudicating

           s guilt to reflect $284 in court costs on page 1 of the judgment and the

reparations amount to reflect $1,032 (which includes $900 in appointed attorney

fees, $60 for one month of assessed probation fees, and $72 due to CSCD) on

page 2 of the judgment, and we affirm the judgment as modified.



                                                   /s/ Bill Meier

                                                   BILL MEIER
                                                   JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 28, 2015




                                         5
