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

             No. 02-18-00374-CR
        ___________________________

  ZACHARY AUGUSTE KITCHEN, Appellant

                        V.

             THE STATE OF TEXAS


     On Appeal from the 297th District Court
            Tarrant County, Texas
          Trial Court No. 1478907D


              Before the En Banc Court
             Opinion by Justice Birdwell
Justices Pittman and Bassel dissent without opinion.
               OPINION ON EN BANC RECONSIDERATION

      On en banc reconsideration of this appeal, we address the only argument raised

in the appellant’s point: whether a trial court’s imposition of unpaid probation fees as

reparations in a post-deferred-adjudication judgment adjudicating guilt violates due

process. Having repeatedly addressed and denied this exact issue, we again overrule it

and affirm the trial court’s judgment.

                                     I. Background

      In August 2017, in accordance with a plea bargain, the trial court placed

Zachary Auguste Kitchen on nine years’ deferred-adjudication community

supervision. See Tex. Penal Code Ann. § 22.04(f). The deferred adjudication order

imposed court costs of $289, no fine, and no restitution. As conditions of community

supervision, the trial court ordered Kitchen to pay $289 in court costs to the District

Clerk of Tarrant County. It also ordered Kitchen to pay a fee of $60 for each month

of supervision,1 beginning on September 15, 2017, to Tarrant County’s Community

Supervision and Corrections Department. Kitchen waived his right to appeal the

deferred adjudication order and therefore cannot now challenge the trial court’s

inclusion of $289 in court costs in that order. See Wiley v. State, 410 S.W.3d 313, 319–

21 (Tex. Crim. App. 2013); Lawrence v. State, 420 S.W.3d 329, 334 (Tex. App.––Fort

Worth 2014, pet. ref’d).


      1
       The code of criminal procedure mandates the assessment of monthly
probation fees. Tex. Code Crim. Proc. Ann. art. 42A.652(a).

                                           2
      In December 2017, the State filed a petition to proceed to adjudication, alleging

that Kitchen had violated five conditions of his community supervision unrelated to

the payment of fees or costs. On July 3, 2018, the trial court held a hearing at which

the State waived paragraph two of its petition, and Kitchen pleaded “true” to the

violation listed in paragraph one. The trial court accepted Kitchen’s plea of “true” to

paragraph one and also found the allegations in paragraphs three through five to be

true, adjudicated him guilty of the original offense of injury to a child causing bodily

injury, and sentenced him to ten years’ imprisonment. The judgment ordered Kitchen

to pay $420 in “reparations,” but it did not impose court costs, a fine, restitution, or

any other monetary obligation.

      Kitchen appealed the trial court’s judgment and challenged only the

reparations. See Armstrong v. State, 340 S.W.3d 759, 766–67 (Tex. Crim. App. 2011)

(holding that complaint about the assessment and amount of costs is a criminal law

matter that we must address).

      The record contains the following items related to costs and fees:

      • the original order placing Kitchen on deferred adjudication;

      • the conditions of Kitchen’s community supervision;

      • an undated Bill of Cost from the Tarrant County District Clerk’s office

certifying that Kitchen owed $0.00 for court costs “up to 7/3/18”;

      • an unsigned List of Fee Breakdowns from the Tarrant County District Clerk

dated July 11, 2018, which shows a detailed breakdown of the $289 court costs

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charged and paid. It also contains a separate list of other types of charges

“[r]emaining,” such as fines, CVCA fees, probation fees, and “Due to CSCD,” all of

which show a balance of $0.00; and

      • a balance sheet from the Tarrant County Community Supervision and

Corrections Department dated July 10, 2018, indicating that Kitchen owed $420 as

reparations under the heading “Administrative Financial Obligations” and subheading

of “Probation Fees.”

                    II. Kitchen’s Point and Argument on Appeal

      Kitchen’s point on appeal does not mention or discuss evidence showing a

basis for the reparations amount; his point instead asserts, “The trial court violated

[his] right to due process when it imposed probation fees as ‘reparations’ in the

judgment.” His sole arguments are that probation fees in general cannot be

characterized as reparations within the bounds of due process because (a) neither a

statute nor the court of criminal appeals has defined “reparations” to include

probation fees and (b) the common usage of the term “reparations” is “the making of

amends for a wrong or injury,” and the probation department is not one who has

been wronged or injured, nor is it a victim as contemplated and defined by the Texas

Crime Victims’ Compensation Act, Tex. Code Crim. Proc. Ann. art. 56.32(a)(11). He

did not argue that the record does not support the amount of this particular




                                          4
imposition of probation fees, nor did he cite any case law for that proposition.2

Kitchen likewise did not argue, as did the appellant in Zamarripa v. State, that the

breakdown sheet of fees showing $0 owed for probation fees showed a lack of basis

for the fees’ imposition;3 thus, the analysis of the basis of the reparations assessment

in that case is distinguishable. 506 S.W.3d 715, 717 (Tex. App.––Fort Worth 2016,

pet. ref’d). 4

        For these reasons, we conclude that Kitchen’s sole argument covered only

questions related to whether probation fees in general, including the fees assessed in

his judgment of conviction, can be properly characterized as reparations under the law

       Although Kitchen refers to the fees as “allegedly unpaid probation fees,” he
        2

never challenges whether the record supports the existence or amount of those fees.

       See Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014) (noting that
        3

because court costs are not part of a defendant’s guilt or sentence, “we review the
assessment of court costs on appeal to determine if there is a basis for the cost, not to
determine if there was sufficient evidence offered at trial to prove each cost”).

        Kitchen cites this page of Zamarripa, but only for the following assertion:
        4

“Undersigned counsel is aware that this Court has held contrary to Appellant’s
argument regarding probation fees being characterized as reparations. See Zamarripa v.
State, 506 S.W.3d 715, 716 (Tex. App.––Fort Worth 2016, pet. ref’d). The issue is
presented here to preserve it for eventual further review.” Kitchen’s citation to
Zamarripa in context does not correspond to a factual argument that the record does
not support the reparations amount included in the judgment. Kitchen’s reliance on
Zamarripa appears to be for the sole purpose of preserving his general due-process
complaint for review by a higher court on a purely legal question that we have already
rejected. In contrast, we have reviewed arguments that a certain fee or cost was not
supported by the record on a case-by-case, fact-specific basis. Compare Aguirre v. State,
No. 02-18-00117-CR, 2018 WL 6844137, at *3 (Tex. App.––Fort Worth Dec. 31,
2018, pet. ref’d) (mem. op., not designated for publication), with Smith v. State, Nos.
02-16-00412-CR, 02-16-00413-CR, 2017 WL 2276751, at *3 (Tex. App.––Fort Worth
May 25, 2017, pet. ref’d) (mem. op., not designated for publication).

                                           5
and therefore assessed as such. Having rejected that exact argument in the past, and

being provided no additional argument or authority persuading us to revisit those

prior holdings, we overrule Kitchen’s sole point. See, e.g., Aguirre v. State, No. 02-18-

00117-CV, 2018 WL 6844137, at *3 (Tex. App.––Fort Worth Dec. 31, 2018, pet.

ref’d) (mem. op., not designated for publication); Zamarripa, 506 S.W.3d at 716; Tucker

v. State, Nos. 02-15-00265-CR, 02-15-00266-CR, 2016 WL 742087, at *2 (Tex. App.—

Fort Worth Feb. 25, 2016, pet. ref’d) (mem. op., not designated for publication). We

therefore need not address any unbriefed issue––including whether this record

supports the existence and amount of probation fees imposed. See Tex. R. App. P.

47.1; Lucio v. State, 351 S.W.3d 878, 896–97 (Tex. Crim. App. 2011).

                                  III.   Conclusion

      Because we have overruled Kitchen’s sole point, we affirm the trial court’s

judgment.

                                                      /s/ Wade Birdwell

                                                      Wade Birdwell
                                                      Justice

Publish

Delivered: July 15, 2019




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