Carmel Mitchelle Foster v. State ( 2013 )


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  •                                     NOS. 12-12-00333-CR
    12-12-00334-CR
    IN THE COURT OF APPEALS
    TWELFTH COURT OF APPEALS DISTRICT
    TYLER, TEXAS
    CARMEL MITCHELLE FOSTER,                              §        APPEALS FROM THE 7TH
    APPELLANT
    V.                                                    §        JUDICIAL DISTRICT COURT
    THE STATE OF TEXAS,
    APPELLEE                                             §         SMITH COUNTY, TEXAS
    MEMORANDUM OPINION
    Carmel Mitchelle Foster appeals her two convictions for practicing medicine without a
    license. In one issue, Appellant challenges the sufficiency of the evidence to support the trial court’s
    assessment of court costs in each case. We affirm the trial court’s judgment in cause number
    12-12-00333-CR.         We modify the judgment and affirm as modified in cause number
    12-12-00334-CR.
    BACKGROUND
    A Smith County grand jury charged Appellant by two separate indictments with the offense of
    practicing medicine without a license.1 Appellant pleaded guilty in both cases without an agreement
    on punishment. The trial court found Appellant guilty in one case, sentenced her to eight years of
    imprisonment, and assessed a $10,000.00 fine. In the other case, the trial court found Appellant
    guilty, sentenced her to ten years of imprisonment, assessed a $10,000.00 fine, and ordered restitution
    in the amount of $9,270.31. The trial court ordered that court costs be paid in each case.
    1
    See TEX. OCC. CODE ANN. § 165.152(a) (West 2012).
    The judgment of conviction in both cases assessed the amount of court costs, but at the time
    they were signed, a bill of costs was not filed in the record for either case. After Appellant filed her
    brief, the record was supplemented with a bill of costs in both cases.
    SUPPLEMENTATION OF THE RECORD
    The code of criminal procedure does not require that a certified bill of costs be filed at the time
    the trial court signs the judgment of conviction or before a criminal case is appealed. See TEX. CODE
    CRIM. PROC. ANN. arts. 103.001, 103.006 (West 2006). When a trial court’s assessment of costs is
    challenged on appeal and no bill of costs is in the record, it is appropriate to supplement the record
    with a bill of costs pursuant to Rule 34.5(c) because a bill of costs is required by Article 103.006.
    See TEX. R. APP. P. 34.5(c)(1); TEX. CODE CRIM. PROC. ANN. art. 103.006; Ballinger v. State, No.
    12-12-00280-CR, 
    2013 WL 3054935
    , at *1 (Tex. App.—Tyler June 19, 2013, no pet. h.) (not yet
    released for publication); Johnson v. State, No. 12-12-00289-CR, 
    2013 WL 3054994
    at *1 (Tex.
    App.—Tyler June 19, 2013, no pet. h.) (not yet released for publication). Supplementation of the
    record is not appropriate, however, to provide evidence of a defendant’s ability to pay attorney’s fees.
    See 
    id. at *2
    (citing Mayer v. State, 
    309 S.W.3d 552
    , 557 (Tex. Crim. App. 2010)).
    SUFFICIENCY OF THE EVIDENCE SUPPORTING COURT COSTS
    In her sole issue, Appellant contends that the trial court erred by “imposing court costs not
    supported by the . . . bill of costs and by ordering that the same be withdrawn from [her] inmate trust
    account.”      She argues that because we cannot determine from the record the basis of the court costs
    imposed, we “should modify the trial court’s judgment to delete any unsupported costs.” Because
    the record has been supplemented in each case to include a bill of costs, we review Appellant’s issue
    as a challenge to the sufficiency of the evidence.2
    Standard of Review
    A challenge to the sufficiency of the evidence supporting court costs is reviewable on direct
    appeal in a criminal case. See Armstrong v. State, 
    340 S.W.3d 759
    , 767 (Tex. Crim. App. 2011).
    2
    Appellant argues that the withdrawal order is not valid because it was issued without ensuring her right to due
    process. As a result, Appellant argues that she has no way to “challenge whether the costs were correctly assessed.” We
    need not discuss the alleged due process violation because the records were supplemented with a bill of costs. See TEX.
    R. APP. P. 47.1.
    2
    We measure sufficiency by reviewing the record in the light most favorable to the award. 
    Mayer, 309 S.W.3d at 557
    ; Cardenas v. State, No. 01-11-01123-CR, 
    2013 WL 1164365
    , at *6 (Tex.
    App.—Houston [1st Dist.] Mar. 21, 2013, no pet.) (not yet released for publication) .
    Applicable Law
    A judgment shall “adjudge the costs against the defendant, and order the collection
    thereof. . . .” See TEX. CODE CRIM. PROC. ANN. art. 42.16 (West 2006). Requiring a convicted
    defendant to pay court costs does not alter the range of punishment and is authorized by statute. See
    id.; Weir v. State, 
    278 S.W.3d 364
    , 367 (Tex. Crim. App. 2009).
    A trial court has the authority to assess attorney’s fees against a criminal defendant who
    received court-appointed counsel. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp.
    2012).3 Once a criminal defendant has been determined to be indigent, she is “presumed to remain
    indigent for the remainder of the proceedings . . . unless a material change in [her] financial
    circumstances occurs.” See TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2012). Thus,
    the trial court must determine that the defendant has the financial resources to enable her to offset in
    part or in whole the costs of the legal services provided, and that determination must be supported by
    some factual basis in the record. Wolfe v. State, 
    377 S.W.3d 141
    , 144 (Tex. App.—Amarillo 2012,
    no pet.); see also Barrera v. State, 
    291 S.W.3d 515
    , 518 (Tex. App.—Amarillo 2009, no pet.). If
    there is no determination of a defendant’s ability to pay that is supported by the record, the evidence is
    insufficient to impose attorney’s fees as court costs. See TEX. CODE CRIM. PROC. ANN. arts.
    26.04(p), 26.05(g); 
    Mayer, 309 S.W.3d at 553
    ; 
    Wolfe, 377 S.W.3d at 146
    .
    Discussion
    In cause number 12-12-00333-CR, the judgment of conviction reflects that the trial court
    assessed $274.00 in court costs and a $10,000 fine. The judgment includes a document identified as
    “Attachment A Order to Withdraw Funds.” The attachment states that Appellant has incurred
    “[c]ourt costs, fees and/or fines and/or restitution” in the amount of $10,274.00. The bill of costs
    3
    Article 26.05 provides,
    If the court determines that a defendant has financial resources that enable [her] to
    offset in part or in whole the costs of the legal services provided, including any
    expenses and costs, the court shall order the defendant to pay during the pendency of
    the charges or, if convicted, as court costs the amount that it finds the defendant is
    able to pay.
    TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2012).
    3
    itemizes the fine and the court costs imposed, which total $10,274.00. This reflects the amounts
    assessed in the judgment of conviction and its attachment. We have reviewed each of the fees listed
    in the bill of costs. All fees are authorized by statute. 4 Accordingly, the evidence is sufficient to
    support the trial court’s assessment of $274.00 in court costs in cause number 12-12-00333-CR. We
    overrule Appellant’s sole issue as it pertains to cause number 12-12-333-CR.
    In cause number 12-12-00334-CR, the judgment of conviction reflects that the trial court
    assessed $574.00 in court costs, a $10,000 fine, and $9,270.31 in restitution. The judgment includes
    a document identified as “Attachment A Order to Withdraw Funds.” The attachment states that
    Appellant has incurred “[c]ourt costs, fees and/or fines and/or restitution” in the amount of
    $19,844.31. The bill of costs itemizes the fine and the court costs imposed, which total $10,574.00.
    This reflects the amount of court costs and the fine assessed in the judgment of conviction and the
    attachment. We have reviewed each fee listed in the bill of costs.
    In addition to the costs imposed in cause number 12-12-00333-CR, the bill of costs in cause
    number 12-12-00334-CR imposes $300.00 in attorney’s fees.                           The State concedes that the
    assessment of attorney’s fees in cause number 12-12-00334-CR is improper. The record shows that
    the trial court made two separate findings of Appellant’s indigence—by appointing counsel to
    represent Appellant before her guilty plea and by appointing appellate counsel after her guilty plea.
    There is no evidence in the record that Appellant’s financial circumstances materially changed after
    the trial court determined that she was indigent. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p).
    There is no determination by the trial court that Appellant has the financial resources which enable
    her to offset in whole or in part the costs of the legal services provided. See 
    Wolfe, 377 S.W.3d at 144
    . Consequently, the evidence is insufficient to support the imposition of attorney’s fees as court
    costs. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p), 26.05(g); 
    Mayer, 309 S.W.3d at 553
    ; 
    Wolfe, 377 S.W.3d at 146
    . The evidence, however, is sufficient to support the imposition of $274.00 in
    court costs. Appellant’s sole issue on appeal is sustained in part as it pertains to cause number
    4
    The bill of costs for cause number 12-12-00333-CR includes a jury service fee, clerk’s fee, records
    management, records management and preservation fee—DC, warrant fee, arrest fee (commit and release), technology
    fee, courthouse security, consolidated court fees, judiciary fund state, judiciary fund county, and indigent defense court
    cost. See TEX. CODE CRIM. PROC. ANN. art. 102.0045(a) (West Supp. 2012); TEX. CODE CRIM. PROC. ANN. art. 102.005
    (a), (f) (West 2006); TEX. CODE CRIM. PROC. ANN. arts. 102.011(a)(2), (6); 102.0169(a); 102.017(a) (West Supp. 2012);
    TEX. LOC. GOV’T CODE ANN. § 133.102(a)(1) (West Supp. 2012); TEX. LOC. GOV’T CODE ANN. § 133.105(a), (b) (West
    2008); TEX. LOC. GOV’T CODE ANN. § 133.107(a) (West Supp. 2012).
    4
    12-12-00334-CR.
    DISPOSITION
    Having overruled Appellant’s sole issue as it pertains to cause number 12-12-00333-CR, we
    affirm the judgment of the trial court and its attachment in that cause number. See TEX. R. APP. P.
    43.2(a).
    Having sustained Appellant’s sole issue in part in cause number 12-12-00334-CR, we modify
    the trial court’s judgment to reflect that the amount of court costs is $274.00. See TEX. R. APP. P.
    43.2(b). We also modify Attachment A to delete the assessment of attorney’s fees and to state that
    the total amount of “court costs, fees and/or fines and/or restitution” is $19,544.31. See, e.g., Reyes
    v. State, 
    324 S.W.3d 865
    , 868 (Tex. App.—Amarillo 2010, no pet.). We affirm the judgment of the
    trial court as modified in cause number 12-12-00334-CR. See TEX. R. APP. P. 43.2(b).
    SAM GRIFFITH
    Justice
    Opinion delivered June 25, 2013.
    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
    (DO NOT PUBLISH)
    5
    COURT OF APPEALS
    TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
    JUDGMENT
    JUNE 25, 2013
    NO. 12-12-00333-CR
    CARMEL MITCHELLE FOSTER,
    Appellant
    V.
    THE STATE OF TEXAS,
    Appellee
    _____________________________________________________________________________
    Appeals from the 7th Judicial District Court
    of Smith County, Texas. (Tr.Ct.No. 007-0398-12)
    _____________________________________________________________________________
    THIS CAUSE came on to be heard on the appellate record and the briefs
    filed herein; and the same being considered, it is the opinion of this court that there was no error in
    the judgment.
    It is therefore ORDERED, ADJUDGED and DECREED that the judgment
    of the court below be in all things affirmed, and that this decision be certified to the court below
    for observance.
    Sam Griffith, Justice.
    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
    6
    COURT OF APPEALS
    TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
    JUDGMENT
    JUNE 25, 2013
    NO. 12-12-00334-CR
    CARMEL MITCHELLE FOSTER,
    Appellant
    V.
    THE STATE OF TEXAS,
    Appellee
    _____________________________________________________________________________
    Appeals from the 7th Judicial District Court
    of Smith County, Texas. (Tr.Ct.No. 007-0399-12)
    _____________________________________________________________________________
    THIS CAUSE came on to be heard on the appellate record and the briefs
    filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
    judgment below should be modified and, as modified, affirmed.
    It is therefore ORDERED, ADJUDGED and DECREED that the trial
    court’s judgment below be modified to reflect that the amount of court costs is $274.00; that
    Attachment A should be modified to delete the assessment of attorney’s fees and to state that the
    total amount of “court costs, fees and/or fines and/or restitution” is $19,544.31; that as modified,
    the trial court’s judgment is affirmed; and that this decision be certified to the trial court below for
    observance.
    Sam Griffith, Justice.
    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
    7
    THE STATE OF TEXAS
    MANDATE
    *********************************************
    TO THE 7TH DISTRICT COURT of SMITH COUNTY, GREETING:
    Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 25th
    day of June, 2013, the cause upon appeal to revise or reverse your judgment between
    CARMEL MITCHELLE FOSTER, Appellant
    NO. 12-12-00333-CR; Trial Court No. 007-0398-12
    Opinion by Sam Griffith, Justice.
    THE STATE OF TEXAS, Appellee
    was determined; and therein our said Court made its order in these words:
    “THIS CAUSE came on to be heard on the appellate record and the briefs filed herein; and
    the same being considered, it is the opinion of this court that there was no error in the judgment.
    It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court
    below be in all things affirmed, and that this decision be certified to the court below for
    observance.”
    WHEREAS, WE COMMAND YOU to observe the order of our said Court of Appeals
    for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly
    recognized, obeyed, and executed.
    WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of our Court of
    Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of
    Tyler, this the ______ day of __________________, 201____.
    CATHY S. LUSK, CLERK
    By:_______________________________
    Deputy Clerk
    8