Carnley v. State

• Docket Number: 10-21-00104-CR
• Decision Date: 30 November 2023
• Parties: CARL CLIFTON CARNLEY, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

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CARL CLIFTON CARNLEY, Appellant
v.
THE STATE OF TEXAS, Appellee

No. 10-21-00104-CR

Court of Appeals of Texas, Tenth District

November 30, 2023

From the 369th District Court Leon County, Texas Trial Court No. 19-0011CR

Before Chief Justice Gray, Justice Johnson, and Justice Smith

OPINION

MATT JOHNSON JUSTICE

Carl Clifton Carnley pled guilty to the offense of possession of a controlled substance, a state jail felony. Pursuant to a plea bargain agreement, the trial court placed Carnley on five years' community supervision and deferred adjudication of guilt. Approximately eleven months after Carnley was placed on community supervision, the State filed a motion to adjudicate his guilt. After a hearing, the trial court found Carnley violated the terms and conditions of his community supervision as alleged in the State's

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first amended motion to adjudicate and assessed Carnley's punishment at twenty-four months' confinement in a state jail facility. The trial court sentenced Carnley accordingly.

Carnley brings this appeal complaining that his plea of guilty was not entered voluntarily or intelligently because he was not admonished of the range of punishment. Carnley's complaint is a challenge to the order deferring adjudication.

An application for writ of habeas corpus under Article 11 of the Texas Code of Criminal Procedure is the proper procedural vehicle to challenge the voluntariness of a plea-bargaining defendant's plea. See Jordan v. State, 54 S.W.3d 783, 786-87 (Tex. Crim. App. 2001); see also Tex. Code Crim. Proc. Ann. art. 11.

We dismiss this issue because we have no jurisdiction to consider the issue.

In his brief, Carnley also adopts complaints regarding financial assessments alleged by his prior counsel in an amended Allison brief filed with the Court on December 5, 2022. The complaints are that the trial court improperly assessed a $16 capias issuance fee and an $8 subpoena issuance fee. The judgment in this case reflects that the offense date was December 31, 2018, and the conviction date was April 29, 2021. In 2019, the Legislature overhauled the system of court costs for criminal cases See Act of May 23, 2019, 86th Leg., R.S., ch. 1352 2019 Tex. Gen. Laws 3982 (the "Cost Act"). Among other things, the Cost Act raised the amount of certain costs, consolidated others, repealed some costs altogether and recategorized certain costs as fines. See, e.g., Contreras v. State, Nos. 05-20-00185-CR & 05-20-00186-CR, [2021 WL 6071640, at *6,] 2021 Tex.App. LEXIS 10137, at *16 (Tex. App.-Dallas Dec. 23, 2021, no pet.) (mem. op. on reh'g, not designated for publication).

Bradshaw v. State, 675 S.W.3d 78, 84 (Tex. App.-Waco 2023, pet. filed).

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The effective date of the Cost Act was January 1, 2020. See Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 5.04, 2019 Tex. Gen. Laws 3982, 4036. Section 5.01 of the Cost Act provides that "[a]n offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose." Id. § 5.01, 2019 Tex. Gen. Laws 3982, 4035-36. The law in effect on the date of the offense here was section 51.608 of the Texas Government Code, which provides that "the amount of a court cost imposed on the defendant in a criminal proceeding must be the amount established under the law in effect on the date the defendant is convicted of the offense." Tex. Gov't Code Ann. § 51.608 (effective June 14, 2013). "Although section 5.01 of the Cost Act requires us to apply the law regarding court costs in effect on the date the offense was committed, section 51.608 of the Texas Government Code requires us to impose the amount of such costs established under the law in effect at the time of conviction." Bradshaw, 675 S.W.3d at 84-85. The two costs challenged in this case are governed by section 51.318 of the Texas Government Code. See Tex. Gov't Code Ann. § 51.318.

Section 51.318 of the Texas Government Code authorizes the clerk to collect an $8 fee for issuing a subpoena or a writ in criminal cases. Id. § 51.318(b)(1)-(2); see In re Ingram, 575 S. W3d 367, 369 (Tex Crim App 2019) (Yeary, J, concurring); see also Ballard v. State, No. 08-21-00180-CR, 2022 WL 2965978, at *2 (Tex. App.-El Paso July 27, 2022, no pet.) (not designated for publication). In a criminal case, a capias is a writ. See Tex. Code Crim.

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Proc. Ann. art. 23.01. Section 51.318(c) provides that "[t]he fee is the obligation of the party to the suit or action initiating the request." Tex. Gov't Code Ann. § 51.318(c). In this case, there is no record that Carnley applied for issuance of a subpoena or requested issuance of a capias. Therefore, we delete the $16 capias issuance fee and $8 subpoena issuance fee. See Ballard, 2022 WL 2965978, at *2.

We sustain Carnley's issues relating to the capias fee and subpoena fee and modify the judgment of the trial court to delete imposition of said fees.

We affirm the judgment of the trial court as modified.

Chief Justice Gray dissenting

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DISSENTING OPINION

This case presents a train wreck of procedure and law. It is one of those times when I wish that what I foretold would not have come to pass. But here it is.

Let me present an indisputable fact to get your attention and then see if together we can find a way out of this morass. Mr. Carnley was assessed $124.00 of court costs. After a successful appeal, he now owes $879.00.

Specifically, the judgment of the trial court which was the subject of this appeal

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when it was filed assessed "Unpaid Court Costs" in the amount of $124.00. After sustaining appellant's complaints regarding the erroneous assessment of $24.00 of court costs, the Court modifies the trial court's current judgment and reduces the "Unpaid Court Cost" to $824.00 ($848.00 - $24.00 = $824) plus $55.00 for reimbursement fees for a total of $879.00. This is the result of a successful appeal? I do not believe Mr. Carnley would agree with that characterization.

Procedural Background

How did we get here? Maybe the better question is, where in the legal world are we?

Deferred Adjudication Order

Carnley was first placed on Community Supervision - Deferred Adjudication. The Order of Deferred Adjudication, which is actually a final judgment in every sense of the term, was signed on August 29, 2019. It was the result of a plea bargain. The terms of the plea bargain are summarized on the face of the order as follows:

Five (5) years deferred adjudication, $308.00 court cost, $2,500.00 fine, $50.00 Crimestoppers, $50.00 Crime Victims Fund, $180.00 Restitution Drug Offender Education Court, Intensive Supervision Program and 275 Community Service Hours. A $25.00 fee will be assessed if court cost, fine or restitution are not paid within 30 days of this Judgment.

Note the total of these amounts is $3,088.00. The order also had a checked box for the following statement: "Terms of plea bargain are attached and incorporated herein by reference." Further down on the face of the order were the following captions and

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amounts:

Fine:	$2,500.00
Attorney Fees:	$ __
Court Costs:	$308.00
Restitution	$180.00

Note that the total of these amounts is $2,988.00.

Attached to the Order of Deferred Adjudication are several other documents including a referenced Order Imposing Conditions of Community Supervision. Included in the Order Imposing Conditions of Community Supervision are two provisions related to payments: first, community supervision fees were to be paid at the rate of $60.00 per month for a total of $3,600.00 ($60.00/month for 60 months); second, "Other Financial Obligations" in the amount of $61.86 per month were to be paid over 60 months for a total of $3,588.00, plus a $2.00 administrative fee for each payment. See Tex. Code Crim. Proc. art. 102.072 (administrative fee). The $3,588.00 total included $500 of attorney's fees not otherwise included in the order, but instead, included only in the monthly payments agreed to be paid during the period of community supervision.

The Bill of Costs dated August 28, 2019, identifying specific costs, including a $25.00 time payment fee, totals $308.00. In addition to that total, the clerk notes in the Bill that there will be an additional collection fee of 25% of any fine, court cost, and restitution that is more than 60 days past due. See Tex. Code Crim. Proc. art 103.0031, repealed by Acts 2019, 86th Leg., ch. 606 (S.B. 891), § 15.01(2), effective September 1, 2019. Moreover, the clerk also states in the Bill that an "additional time payment fee of $25 will be assessed

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if any part of the fine, court costs, or restitution is paid on or after the 31st day after the date the judgment" is entered. In support of this statement, the clerk cites to Texas Government Code Section 133.103 which was renumbered, effective January 1, 2020, to Texas Code of Criminal Procedure article 102.030.

There was no appeal. Later, the State filed a motion to adjudicate and an amended motion to adjudicate. The amended motion alleged Carnley violated a number of the conditions of community supervision and was delinquent in the payment of costs and fees as follows:

Original	Payment	Delinquent
Probation Fees	3,600.00	0.00	780.00
Court Cost	308.00	0.00	308.00
Attorney's Fees	500.00	0.00	316.18
Restitution	180.00	30.00	150.00

There is no need, at this juncture, to try to reconstruct or reconcile the payments and credits related to Carnley's account. I simply note that from what we have in the record, it was clear that Carnley paid some funds to the State but failed to make all the...