Jorge Cordero-Varela v. State ( 2013 )

NOS. 12-12-00320-CR
12-12-00321-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JORGE CORDERO-VARELA, § APPEALS FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Jorge Cordero-Varela appeals his conviction for the felony offenses of intoxication
manslaughter and intoxication assault. In one issue, Appellant challenges the sufficiency of the
evidence to support the trial court’s assessment of court costs in both cases. We modify and affirm
as modified.
BACKGROUND
In April 2012, Appellant was involved in an intoxication related accident that resulted in the
death of one person and injuries to another. The ensuing investigation revealed that Appellant had
been operating a vehicle while having a blood alcohol concentration of 0.4 grams of alcohol per 100
milliliters of blood. Appellant was indicted in separate cases for the offenses of intoxication
manslaughter and intoxication assault. Appellant elected to enter a plea of “guilty” without an
agreed recommendation as to his punishment in both cases. After hearing the State’s and
Appellant’s evidence, the trial court found Appellant guilty and assessed punishment at twenty years
of imprisonment on the intoxication manslaughter charge, and ten years on the intoxication assault
charge, to be served consecutively.
In its formal pronouncement, the trial court stated, “[C]ourt costs are ordered paid. . . .” In
the judgments of conviction, the trial court ordered the payment of $574.00 in court costs for each
case. At that time, the certified bill of costs was not in the record. After Appellant filed his notice of
appeal, the State filed a motion to supplement the appellate record, which was granted by this court.
The supplemental record contains a certified copy of the bill of costs.
COURT COSTS
In his 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 bill of costs and by ordering that the same be withdrawn from [his] inmate trust
account.” He 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.” We construe
Appellant’s argument as a challenge to the sufficiency of the evidence.
Standard of Review
A challenge to the sufficiency of the evidence supporting court costs is reviewable on direct
appeal in a criminal case. Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011). We
measure sufficiency by reviewing the record in the light most favorable to the award. Mayer v.
State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Johnson v. State, No. 12-12-00289-CR, 2013
WL 3054994, at *2 (Tex. App.—Tyler June 19, 2013, no pet. h.) (not yet released for publication).
Applicable Law
A judgment shall “adjudge the costs against the defendant, and order collection thereof. . . .”
See TEX. CODE CRIM. PROC. ANN. art. 42.16 (West 2006). If a criminal action is appealed, “an
officer of the court shall certify and sign a bill of costs stating the costs that have accrued and send the
bill of costs to the court to which the action or proceeding is transferred or appealed.” Id. art.
103.006 (West 2006). 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 id. arts. 103.006, 103.001 (West 2006). However, “[a] cost is not payable by the person charged
with the cost until a written bill is produced or is ready to be produced, containing the items of cost,
signed by the officer who charged the cost or the officer who is entitled to receive payment for the
cost.” Id. art. 103.001. Requiring a convicted defendant to pay court costs does not alter the range
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of punishment and is authorized by statute. See id.; Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim.
App. 2009).
The rules of appellate procedure permit supplementation of the clerk’s record “[i]f a relevant
item has been omitted. . . .” See TEX. R. APP. P. 34.5(c)(1). Furthermore, 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 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); TEX. CODE CRIM. PROC. ANN. art. 103.006. Supplementation is
permissible because a bill of costs is a governmental record that is “merely a documentation of what
occurred during . . . the trial.” See Johnson, 2013 WL 3054994, at *1.
In certain circumstances, 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). But once a criminal defendant has been determined to be indigent, he
“is presumed to remain indigent for the remainder of the proceedings unless a material change in his
financial circumstances occurs.” Id. art. 26.04(p) (West Supp. 2012). Thus, the trial court must
determine that the defendant has financial resources which enable him 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 before attorney’s fees are imposed. See Johnson, 2013 WL 3054994, at *3. If the record
does not show that the defendant’s financial circumstances materially changed after the previous
determination that he was indigent, the evidence will be insufficient to support the imposition of
attorney’s fees. See id. (citing Mayer, 309 S.W.3d at 553). Unlike other court costs,
supplementation of the record to provide evidence of Appellant’s ability to pay attorney’s fees is not
appropriate. See Johnson, 2013 WL 3054994, at *2 (citing Mayer, 309 S.W.3d at 557).
Discussion
Here, the judgment of conviction in each case reflects that the trial court assessed $574.00 as
court costs. Each judgment of conviction also includes a document identified as “Attachment A
Order to Withdraw Funds.” The attachments state that Appellant has incurred “[c]ourt costs, fees
and/or fines and/or restitution” in the amount of $574.00.
Appellant argues that his due process rights were violated because the district clerk did not
prepare a written bill of costs before the costs were “taxed against” him. Because the record was
properly supplemented to include a certified bill of costs, we need not discuss the alleged due process
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violation. See id., at *2 n.3; see also TEX. R. APP. P. 47.1.
Appellant next contends that the portions of the costs assessed are unsupported by the
evidence. The bill of costs itemizes the costs and fees assessed against Appellant in each case. The
attorney’s fees total $300.00, and the remaining fees total $274.00. The court costs set out in the trial
court’s judgment are the same as those shown in the clerk’s certified bill of costs. We have verified
that each fee listed in the bill of costs is authorized by statute.1 Appellant is required to pay all of
these costs, except the attorney’s fees, regardless of his indigence. See TEX. CODE CRIM. PROC. ANN.
arts. 26.05(g), 42.16; see also Johnson v. State, No. 12-12-00263-CR, 2013 WL 2286077, at *2 (Tex.
App.—Tyler May 22, 2013, no pet. h.) (mem. op., not designated for publication) (“[T]he legislature
has not preconditioned the collection of court costs or fines on an inmate’s ability to pay.”).
Therefore, the evidence is sufficient to support the trial court’s assessment of $274.00 in court costs
against Appellant.
There is no evidence in the record, however, that Appellant’s financial circumstances
materially changed after the trial court determined that he was indigent. See TEX. CODE CRIM. PROC.
ANN. art. 26.04(p). The record shows that the trial court made two separate findings of Appellant’s
indigence—by appointing counsel to represent Appellant before his guilty plea and by appointing
appellate counsel after it found him guilty and assessed his punishment. The trial court made no
finding that Appellant has financial resources which enable him to offset in whole or in part the costs
of the legal services he was provided. Consequently, the evidence is insufficient to support the
imposition of attorney’s fees as court costs. See id. art. 26.04(p), 26.05(g); see also Johnson, 2013
WL 3054994, at *4.
Appellant’s sole issue is sustained in part.
DISPOSITION
Having sustained Appellant’s sole issue in part, we modify the trial court’s judgments to
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The bill of costs lists attorney’s fees, jury service fee, clerk’s fee, records management, records management
and preservation fee—DC, warrant fee, bond fee, arrest fee (commit and release), courthouse security, consolidated court
fees, judiciary fund county, judiciary fund state, and indigent defense court cost. All of these fees are authorized by
statute. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g); 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. art. 102.011(a)(2),
(5), (6) (West Supp. 2012); TEX. CODE CRIM. PROC. ANN. art. 102.017(a) (West Supp. 2012); TEX. LOCAL GOV’T CODE
ANN. § 133.102(a)(1) (West Supp. 2012); TEX. LOCAL GOV’T CODE ANN. § 133.105(a), (b) (West 2008); TEX. LOCAL
GOV’T CODE ANN. § 133.107(a) (West Supp. 2012).
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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 $300.00 in attorney’s fees and to state that the total amount
of “court costs, fees and/or fines and/or restitution” is $274.00. See, e.g., Reyes v. State, 324 S.W.3d
865, 868 (Tex. App.—Amarillo 2010, no pet.). We affirm the judgments of the trial court as
modified. See TEX. R APP. P. 43.2(b).
BRIAN HOYLE
Justice
Opinion delivered June 25, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JUNE 25, 2013
NOS. 12-12-00320-CR
12-12-00321-CR
JORGE CORDERO-CARELA,
Appellant
V.
THE STATE OF TEXAS,
Appellees
_____________________________________________________________________________
Appeal from the 114th Judicial District Court
of Smith County, Texas. (Tr.Ct.Nos. 114-0766-12; 114-0767-12)
_____________________________________________________________________________
THESE CAUSES came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of this court that the trial court’s
judgments below should be modified and, as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgments below be modified to reflect that the amount of court costs is $274.00; we also
modify Attachment A to delete the assessment of $300.00 in attorney’s fees and to state that the
total amount of “court costs, fees and/or fines and/or restitution” is $274.00; that as modified, the
trial court’s judgments are affirmed; and that this decision be certified to the trial court below for
observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
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