Francis Martin v. the State of Texas

Opinion filed July 18, 2024

In The

Eleventh Court of Appeals
__________

No. 11-24-00067-CR
__________

FRANCIS MARTIN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 39th District Court
Haskell County, Texas
Trial Court Cause No. 7199

MEMORANDUM OPINION
Appellant, Francis Martin, pleaded guilty to the offense of possession of
methamphetamine in an amount of one gram or more but less than four grams
in a drug-free zone, a third-degree felony. See TEX. HEALTH & SAFETY CODE ANN.
§§ 481.102(6), 481.115(c), 481.134 (West Supp. 2023). Pursuant to the terms of a
plea bargain agreement, the trial court deferred finding Appellant guilty, and placed
him on deferred adjudication community supervision for a period of eight years. As
conditions of his community supervision, Appellant was required to follow all state
and federal laws, report to his community supervision officer, and pay a $1,500 fine.
The State subsequently filed a motion to adjudicate Appellant’s guilt and
revoke his community supervision, then amended it, alleging ten violations. On
March 8, 2023, the trial court held a contested hearing on the State’s amended
motion, during which Appellant pleaded “not true” to the violations alleged. The
State called two witnesses, then Appellant testified. The trial court found seven
allegations to be true, and ordered a presentence investigation report (PSI) to be
prepared prior to deciding Appellant’s punishment. Upon the conclusion of the
sentencing hearing, the trial court revoked Appellant’s community supervision, and
assessed punishment at confinement for eight years in the Correctional Institutions
Division of the Texas Department of Criminal Justice. Appellant was further
ordered to pay the original $1,500 fine, court costs, attorney’s fees, and restitution.
Appellant’s court-appointed counsel has filed a motion to withdraw in this
court. The motion is supported by a brief in which counsel professionally and
conscientiously examines the record and applicable law and concludes that there are
no arguable issues to present on appeal. Counsel provided Appellant with a copy of
the brief, a copy of the motion to withdraw, an explanatory letter, and a copy of both
the clerk’s record and the reporter’s record. Counsel also advised Appellant of his
right to review the record and file a response to counsel’s brief, and of his right to
file a petition for discretionary review. See TEX. R. APP. P. 68. As such, court-
appointed counsel has complied with the requirements of Anders v. California, 386
U.S. 738 (1967); Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014); In re
Schulman, 252 S.W.3d 403 (Tex. Crim. App. 2008); and Stafford v. State, 813
S.W.2d 503 (Tex. Crim. App. 1991).

2
Appellant has not filed a pro se response to counsel’s Anders brief. Following
the procedures outlined in Anders and Schulman, we have independently reviewed
the record, and we agree with counsel that no arguable grounds for appeal exist. 1
However, the judgment contains a nonreversible error. The trial court ordered
Appellant to pay $180 restitution “payable to TX DPS.” Although a trial court has
authority to order the repayment of lab fees to the Department of Public Safety (DPS)
as a condition of community supervision, a trial court has no authority to assess DPS
lab fees as restitution when a defendant is sentenced to imprisonment. Sexton v.
State, No. 11-18-00278-CR, 2019 WL 4316791, at *1 (Tex. App.—Eastland Sept.
12, 2019, pet. ref’d) (per curiam) (mem. op., not designated for publication); King v.
State, No. 12-17-00194-CR, 2018 WL 345737, at *2 (Tex. App.—Tyler Jan. 10,
2018, no pet.) (mem. op., not designated for publication); see also Aguilar v. State,
279 S.W.3d 350, 353 (Tex. App.—Austin 2007, no pet.). Further, a trial court may
order a defendant convicted of an offense to pay restitution to a victim of the offense,
or to a crime victim’s assistance fund, but not to a state agency such as the Texas
Department of Public Safety. TEX. CODE CRIM. PROC. ANN. art. 42.037(a) (West
Supp. 2023); Hanna v. State, 426 S.W.3d 87, 91 (Tex. Crim. App. 2014)
(recognizing that restitution “may be ordered only to a victim of an offense for which
the defendant is charged”); Sexton, 2019 WL 4316791, at *1. We hold that the trial
court had no authority to require Appellant to pay restitution to DPS.
When a trial court lacks statutory authority to impose the specific restitution
order, such as when restitution has been ordered to be paid to someone who was not
a victim of the offense, we must delete the restitution order. Burt v. State, 445

1
Appellant has the right to file a petition for discretionary review pursuant to Rule 68 of the Texas
Rules of Appellate Procedure.

3
S.W.3d 752, 757–58 (Tex. Crim. App. 2014); Sexton, 2019 WL 4316791, at *2.
Therefore, we modify the trial court’s judgment to delete the $180 in restitution.
Accordingly, we grant counsel’s motion to withdraw, and we affirm the
judgment of the trial court as modified.

JOHN M. BAILEY
CHIEF JUSTICE

July 18, 2024
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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