Roderick D. Thomas v. State , 445 S.W.3d 288 ( 2013 )

Opinion issued March 21, 2013.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00487-CR
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RODERICK D. THOMAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 1315014
OPINION
A jury found Roderick D. Thomas guilty of aggravated robbery and assessed
punishment at ten years’ confinement. The written judgment ordered that Thomas
pay $274 in court costs. On appeal, Thomas contends that insufficient evidence
supports the trial court’s assessment of court costs in the judgment absent a bill of
costs. Thomas requested a bill of costs in his request for the clerk’s record, but
none was produced. We ordered the trial court clerk to provide a bill of costs. The
trial court clerk has supplemented the record with a bill of costs. We hold that
sufficient evidence supports the costs recited in the original judgment and therefore
affirm.
Discussion
I. Supplementation of record with costs assessment
Thomas contends that the $274 award of court costs in the written judgment
is not supported by sufficient evidence. In particular, Thomas contends that he is
unable to determine if attorney’s fees were incorrectly included as part of the $274
award of costs in the trial court’s judgment. See TEX. CODE CRIM. PROC. ANN.
art. 26.05(g) (West Supp. 2012) (requiring courts to consider a defendant’s ability
to pay before assessing “costs of the legal services provided” as court costs). The
district clerk must keep a record of each fee or item of cost charged for a service
rendered in a criminal action or proceeding. TEX. CODE. CRIM. PROC. ANN. art.
103.009(a)(1) (West 2006). If a criminal action is appealed, an officer of the court
must certify and sign a bill of costs and send it to the court to which the action is
appealed. Id. art. 103.006. We may direct the trial court clerk to supplement the
record with any relevant omitted item, including a bill of costs. TEX. R. APP. P.
34.5(c); see Cardenas v. State, 01-11-01123-CR, 2013 WL 460437, at *4 (Tex.
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App.—Houston [1st Dist.] Feb. 7, 2013, no pet. h.).
Accordingly, we ordered the trial court “to prepare, certify, and file a
supplemental record containing a bill of costs,” and if no bill of costs existed, we
ordered “the trial court clerk or an officer of the court . . . to prepare a bill of costs
for inclusion in the supplemental record.” In response, the trial court provided a
supplemental record including a document entitled “Cost Bill Assessment,”
itemizing costs imposed on Thomas. This assessment lists items of costs totaling
$329. The supplemental record also contains a copy of the original judgment with
the $274 assessment of court costs marked out and replaced with a $329
assessment. Thomas filed a written objection to the supplemental record and
objected to the supplemental record in a reply brief.
First, Thomas objects that that the trial court could not modify the judgment
as it purported to do in the supplemental record. The trial court may correct
clerical, but not judicial, omissions or errors in a judgment after the trial court loses
its plenary jurisdiction through a judgment nunc pro tunc. State v. Bates, 889
S.W.2d 306, 309 (Tex. Crim. App. 1994) (en banc). But a trial court lacks
jurisdiction to enter a judgment nunc pro tunc after the appellate record for the case
is filed. See Meineke v. State, 171 S.W.3d 551, 558 (Tex. App.—Houston [14th
Dist.] 2005, pet. ref’d). Because the trial court lacked jurisdiction to enter
judgment nunc pro tunc to correct its judgment after the appellate record in this
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case was filed, we disregard the modified judgment contained in the supplemental
clerk’s record.
Court costs are not punitive, but merely a collateral consequence of the
defendant’s conviction. Weir v. State, 278 S.W.3d 364, 366 (Tex. Crim. App.
2009). They are generally mandated by statute, not charged at the discretion of the
court. See, e.g., TEX. CODE CRIM. PROC. ANN. art. 102.005(a) (West 2006) (“A
defendant convicted of an offense . . . shall pay . . . .”); TEX. LOC. GOV’T CODE
ANN. § 133.102(a)(1) (West Supp. 2012) ( “A person convicted of an offense shall
pay as a court cost . . . .”). Hence, court costs need not be incorporated into the
judgment to be assessed, but may be assessed, and a bill of costs produced, after
the judgment. See Armstrong v. State, 340 S.W.3d 759, 766–67 (Tex. Crim. App.
2011) (holding court costs need not be incorporated into the judgment); Owen v.
State, 352 S.W.3d 542, 547–48 (Tex. App.—Amarillo 2011, no pet.) (reviewing a
bill of costs created after the judgment); Cardenas, 2013 WL 460437 at *4 (same);
see also TEX. CODE CRIM. PROC. ANN. art. 103.006 (providing that a bill of costs
be created when an action is appealed). Additionally, the trial court is not limited
to the costs assessed in the judgment or the bill of costs provided on appeal, but
may later issue an amended bill of costs. See TEX. CODE CRIM. PROC. ANN. art.
103.007 (providing for a procedure to assess additional costs, thus an amended bill
of costs, even after convicted defendant has paid costs in previous bill of costs).
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Thomas contends that permitting a bill of costs to be produced after the
judgment denies him due process in that he may not object to any costs assessed in
the bill of costs. However, Thomas has not been denied an opportunity to challenge
the costs listed in the bill of costs. See Cardenas, 2013 WL 460437, at *4. A
contemporaneous objection in the trial court is not required to contest costs on
direct appeal. See Mayer v. State, 309 S.W.3d 552, 555–56 (Tex. Crim. App.
2010). Thomas therefore was not procedurally prejudiced by his alleged inability
to raise his objections in the trial court.
Despite the lack of a written bill of costs, completely apart from the
availability of direct appeal, Thomas could also seek correction of an error in costs
by moving to correct costs in the trial court. See TEX. CODE CRIM. PROC. ANN.
art. 103.008(a) (“On the filing of a motion by a defendant not later than one year
after the date of the final disposition of a case in which costs were imposed, the
court in which the case is pending or was last pending shall correct any error in the
costs.”). Thomas notes in particular that he could not challenge the
constitutionality of any particular statute authorizing an assessment of costs against
him. In addition to the methods already mentioned, however, various other
proceedings permit such a constitutional challenge. See, e.g., Ex parte Carson, 159
S.W.2d 126, 127 (Tex. Crim. App. 1942) (permitting convicted defendant to
challenge constitutionality of statute assessing court costs in his criminal case in
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habeas corpus proceedings); Rylander v. Caldwell, 23 S.W.3d 132, 137 (Tex.
App.—Austin 2000, no pet.) (holding that convicted defendant could challenge
constitutionality of statute authorizing particular costs in criminal case in separate
declaratory action). A civil post-judgment hearing to collect costs provides still
another due process avenue to prevent erroneous deprivation via clerical or other
errors. See Harrell v. State, 286 S.W.3d 315, 320–21 (Tex. 2009).
Thomas next argues that a bill of costs created after the trial court rendered
judgment cannot be considered part of the record on appeal, because it was not
properly before the court as evidence when the judgment was rendered, relying on
a footnote in Johnson v. State, 389 S.W.3d 513, 513 n.1 (Tex. App.—Houston
[14th Dist.] 2012, no pet. h.), which in turn relies upon Chambers v. State, 194
S.W.2d 774, 775 (Tex. Crim. App. 1946), and Lamb v. State, 931 S.W.2d 611, 613
(Tex. App.—Amarillo 1996, pet. ref’d). Chambers and Lamb hold that evidence
created after the judgment but included in the record may not be considered as
evidence to support the judgment on appeal. See Chambers, 194 S.W.2d at 775;
Lamb, 931 S.W.2d at 613. Unlike the evidence in Lamb and Chambers, a bill of
costs is not itself factual evidence to support the assessment of costs in a factual
sufficiency inquiry. Rather, costs assessed in a bill of costs, like those assessed in
the judgment, must be supported by the record. See, e.g., Owen, 352 S.W.3d at
547–48 (holding that factual predicate for the assessment of court costs included in
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a bill of costs must be supported by the record).
Finally, Thomas objects that the “Cost Bill Assessment” provided by the
trial court in the supplemental record is not a valid bill of costs under Texas Code
of Criminal Procedure article 103.001. Article 103.001 provides that costs are not
“payable” until a bill of costs containing “the items of cost, signed by the officer
who charged the cost” “is produced or is ready to be produced.” TEX. CODE. CRIM.
PROC. ANN. art. 103.001. In other words, a judgment may assess costs, but
ultimately, in any post-judgment civil proceeding to collect costs, a bill of costs
meeting the requirements of article 103.001 is required. See id. The case before us,
however, is a direct appeal from a criminal conviction, not a proceeding to collect
costs for which a bill of costs satisfying article 103.001 is required. Nonetheless,
we note that the assessment in the supplemental record fulfills the bill of costs
requirements under article 103.001. It contains an itemized list of court costs
imposed on Thomas, and the last page contains a certification stamp, initialed by
the clerk, followed by the signature of the trial court deputy clerk. For all of these
reasons, we reject Thomas’s objections to the cost bill filed in the supplemental
record. We turn to address the sufficiency of evidence supporting the costs
assessed in the judgment.
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II. Sufficiency of the evidence
Sufficient evidence must support an assessment of costs in a bill of costs or
in a judgment. See Mayer, 309 S.W.3d at 554–56; Owen, 352 S.W.3d at 548
(holding assessment of costs is supported by sufficient evidence when authorized
by statute and supported by record). We review the record in the light most
favorable to the award in measuring the sufficiency of the evidence to support an
assessment of costs. See Mayer, 309 S.W.3d at 557.
The record demonstrations that a jury convicted Thomas of a felony in
district court, supporting each of the following costs listed in the costs assessment:
“Clerks Fee” of $40;1 “Jury Fee” of $20; 2 “Security Fee” of $5; 3 “Consolidated
Court Costs” of $133; 4 “Jury Reimbursement Fee” of $4; 5 “DC Records
1
See TEX. CODE CRIM. PROC. ANN. art. 102.005(a) (“A defendant convicted of an
offense in . . . a district court shall pay for the services of the clerk of the court a
fee of $40.”).
2
See TEX. CODE CRIM. PROC. ANN. art. 102.004(a) (“A defendant convicted by a
jury in . . . a district court shall pay a jury fee of $20.”).
3
See TEX. CODE CRIM. PROC. ANN. art. 102.017(a) (“A defendant convicted of a
felony offense in a district court shall pay a $5 security fee as a cost of court.”).
4
See TEX. LOC. GOV’T CODE ANN. § 133.102(a)(1) (West Supp. 2012) (entitled
“Consolidated Fees on Conviction,” which provides: “A person convicted of an
offense shall pay as a court cost, in addition to all other costs . . . $133 on
conviction of a felony . . .).
5
See TEX. CODE CRIM. PROC. ANN. art. 102.0045(a) (“A person convicted of any
offense, other than an offense relating to a pedestrian or the parking of a motor
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Preservation” fee of $25; 6 “Support of Indigent Defense” fee of $2; 7 “Support of
Judiciary Fee” of $6; 8 and a “Court Technology Fee” of $4. 9 The cost assessment
also lists a Sheriff’s Fee of $90, of which $70 is clearly supported in the record:
$50 for “Serving Capias,”10 $5 for “Commitment,” 11 $5 for “Release,”12 $5 for
vehicle, shall pay as a court cost, in addition to all other costs, a fee of $4 to be
used to reimburse counties for the cost of juror services as provided by Section
61.0015, Government Code.”).
6
See id. art. 102.005(f) (“A defendant convicted of an offense in a . . . district court
shall pay a fee of $25 for records management and preservation services performed
by the county as required by Chapter 203, Local Government Code.”).
7
See TEX. LOC. GOV’T CODE ANN. § 133.107(a) (“A person convicted of any
offense, other than an offense relating to a pedestrian or the parking of a motor
vehicle, shall pay as a court cost, in addition to other costs, a fee of $2 to be used to
fund indigent defense representation through the fair defense account established
under Section 71.058, Government Code.”).
8
See id. § 133.105(a) (“A person convicted of any offense, other than an offense
relating to a pedestrian or the parking of a motor vehicle, shall pay as a court cost,
in addition to all other costs, a fee of $6 to be used for court-related purposes for
the support of the judiciary.”).
9
See TEX. CODE CRIM. PROC. ANN. art. 102.0169(a) (“A defendant convicted of a
criminal offense in a . . . district court shall pay a $4 . . . district court technology
fee.”).
10
See TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(2) (“A defendant convicted of
a felony or a misdemeanor shall pay the following fees for services performed in
the case by a peace officer . . . $50 for executing or processing an issued arrest
warrant, capias, or capias pro fine . . . .”).
11
See id. art. 102.011(a)(6) (“A defendant convicted of a felony or a misdemeanor
shall pay the following fees for services performed in the case by a peace
officer . . . $5 for commitment or release . . . .”).
9
“Summoning a Witness,”13 and $5 for Summoning a Jury. 14
The costs assessment reflects that four other witnesses were summoned, but
without a request for witness summons, we cannot confirm whether the fees for the
other four witness summons is supported by the record. Still, the sum of the costs
supported by the record before us is $309. No sum of money was included to pay
for attorney’s fees. The record generated in the trial court through the entry of
judgment demonstrates facts and circumstances sufficient to justify at least $274 of
costs as directed by the statutes and rules referenced above. Accordingly, sufficient
evidence supports the judgment awarding costs.
12
See id. art. 102.011(a)(6) (“A defendant convicted of a felony or a misdemeanor
shall pay the following fees for services performed in the case by a peace
officer . . . $5 for commitment or release . . . .”).
13
See TEX. CODE CRIM. PROC. ANN. art.102.011(a)(3) (“A defendant convicted of a
felony or a misdemeanor shall pay . . . $5 for summoning a witness.”).
14
See id. art.102.011(a)(7) (“A defendant convicted of a felony or a misdemeanor shall
pay . . . $5 for summoning a jury . . . .”).
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Conclusion
We affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Jennings, Bland, and Massengale.
Publish. TEX. R. APP. P. 47.2(b).
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