Colby Ray Ballinger v. State , 405 S.W.3d 346 ( 2013 )

NO. 12-12-00280-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
COLBY RAY BALLINGER, § APPEAL FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
OPINION
Colby Ray Ballinger appeals his conviction for the felony offense of aggravated sexual
assault of a child. Appellant raises two issues on appeal relating to the imposition of court costs.
We modify and affirm as modified.
BACKGROUND
Appellant was charged by indictment with aggravated sexual assault of a child, a first degree
felony,1 and pleaded guilty to that offense on December 15, 2009. The trial court accepted
Appellant‟s plea, deferred further proceedings without entering an adjudication of guilt, and ordered
that Appellant be placed on deferred adjudication community supervision for five years.2 The trial
court‟s order of deferred adjudication assessed $205.00 in court costs.
The State filed an application to proceed to final adjudication on July 16, 2012.3 Appellant
1
See TEX. PENAL CODE ANN. § 22.021 (a)(1)(B)(i) (West Supp. 2012).
2
See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(a) (West Supp. 2012).
3
This was the State‟s second application to proceed to final adjudication. The trial court denied the State‟s first
application, amended Appellant‟s conditions of community supervision, and ordered Appellant to serve ninety days in
jail.
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pleaded “true” to the State‟s allegations. The trial court found the allegations to be “true,” revoked
Appellant‟s community supervision, and adjudicated Appellant guilty of aggravated sexual assault of
a child. The trial court assessed punishment at twenty years of imprisonment without a fine and
ordered court costs to be paid. After pronouncing his sentence, the trial court continued its “finding
of indigence” and appointed counsel to represent Appellant on appeal.
The judgment adjudicating guilt assessed $505.00 in court costs. At that time, the certified
bill of costs was not in the record. After Appellant filed his brief, the district clerk supplemented the
record to include a bill of costs.
SUPPLEMENTATION OF THE RECORD
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.” TEX. CODE CRIM. PROC. ANN. art. 103.006 (West 2006). “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.” TEX. CODE CRIM. PROC. ANN. art. 103.001 (West
2006). 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).
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. But 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.
In Allen v. State, the Texarkana court of appeals permitted supplementation of the appellate
record with a “newly created” bill of costs. Allen v. State, No. 06-12-00166-CR, 2013 WL 1316965,
at *2 (Tex. App.—Texarkana Apr. 3, 2013, no pet.) (not yet released for publication). The court
reasoned that supplementation was permissible because a bill of costs was a governmental record
that is “merely a documentation of what occurred during . . . trial.” Id. Because the substance of the
bill of costs was not newly created, the court classified the bill of costs as “an „omitted‟ item because
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it is only a compilation of records that existed previously.” Id.
The First Court of Appeals in Houston has also permitted supplementation of the record. See
Cardenas v. State, No. 01-11-01123-CR, 2013 WL 1164365, at *5 (Tex. App.—Houston [1st Dist.]
Mar. 21, 2013, no pet.) (not yet released for publication). But in Cardenas, the court concluded that
supplementation was permissible because an appellate court “must not affirm or reverse a judgment
or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a
reasonable time to correct or amend the defects or irregularities.” Id. at *4 (citing TEX. R. APP. P.
44.3). Furthermore, the court stated that supplementation was permissible because “Rule 34.5(c)
also does not exclude the possibility of supplementation with new documents, the creation of which
is otherwise required by law, and article 103.006 does contemplate that a bill of costs shall be
certified, signed, and sent upon the appeal of a criminal action, which necessarily occurs after the
entry of a final judgment.” Id. at 5.
Appellant argues that a supplemental bill of costs may not be used unless it was created on or
prior to the date the judgment was signed. To support this contention, Appellant directs our attention
to Johnson v. State, 389 S.W.3d 513 (Tex. App.—Houston [14th Dist.], pet. granted). In Johnson,
the court ordered the district clerk to supplement the record with a bill of costs, or provide a certified
statement that no such bill existed in the case file. Id. at 515. The clerk‟s office initially responded
by filing an affidavit averring that the record did not include a bill of costs. Id. at 515. The clerk
subsequently filed a computer screen printout reflecting a bill of costs, but it did not retract its earlier
affidavit. Id. at 515 n.1. The court held that regardless of the form of the document, the record
contained no indication that the printout was ever brought to the trial judge‟s attention. Id. at 515
n.1., 517. In reaching its disposition of the case, the court did not address the issue of “what might
happen if an actual bill of costs is subsequently produced.” Id. at 517 n.4.
Here, the district clerk produced an “actual bill of costs” after Appellant challenged the trial
court‟s assessment of court costs. Thus, Johnson is inapplicable. Appellant also argues that
producing a bill of costs “after-the-fact” violates his right to due process. However, the court held in
Cardenas that “the clerk‟s failure to prepare a bill of costs before entry of judgment simply does not
rise to the level of a due process violation” because the appellant had been given the opportunity to
challenge the award of fees on direct appeal. See Cardenas, 2013 WL 1164365, at *7.
We agree with the reasoning in Allen and Cardenas. Accordingly, we hold that
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supplementing the record to include the bill of costs is appropriate and does not violate due process.
See TEX. CODE CRIM. PROC. ANN. arts. 103.001, 103.006; TEX. R. APP. P. 34.5(c)(3), (1); Allen, 2013
WL 1316965, at *2; Cardenas, 2013 WL 1164365, at *4-7. Therefore, we will consider it in our
analysis.4
SUFFICIENCY OF THE EVIDENCE SUPPORTING COURT COSTS
In two issues, Appellant challenges the trial court‟s order to withdraw funds from his inmate
trust account because there was no bill of costs in the record. Appellant also challenges the court
costs assessed in the judgment adjudicating guilt. Because the withholding order is contained in the
judgment as an attachment, we construe Appellant‟s issues as a sufficiency challenge to the trial
court‟s assessment of costs.
Standard of Review and Applicable Law
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).
We measure sufficiency by reviewing the record in the light most favorable to the award. See Mayer
v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Cardenas, 2013 WL 1164365, at *6.
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).
Discussion
The judgment adjudicating guilt reflects that the trial court assessed $505.00 in court costs.
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 $505.00. The bill of costs itemizes the costs and fees assessed against Appellant. The
total bill of costs assessed is $205.00 and does not impose attorney‟s fees.
The State concedes that the costs assessed in the judgment adjudicating guilt and
“Attachment A” are incorrect. We conclude that the evidence is insufficient to assess court costs of
4
In his brief, Appellant argues that his right to due process was violated when the trial court ordered the
withdrawal of funds from his inmate account without a bill of costs because he had no ability to know or challenge the
4
$505.00. However, we have verified that each fee listed in the bill of costs is authorized by statute.5
Therefore, we conclude further that the evidence is sufficient to assess court costs of $205.00. We
sustain Appellant‟s first and second issues in part.
DISPOSITION
Having sustained Appellant‟s first and second issues in part, we modify the trial court‟s
judgment to reflect that the amount of court costs is $205.00. See TEX. R. APP. P. 43.2(b). We also
modify Attachment A to delete the assessment of $505.00 and to state that the total amount of “court
costs, fees and/or fines and/or restitution” is $205.00. See, e.g., Reyes v. State, 324 S.W.3d 865, 868
(Tex. App.—Amarillo 2010, no pet.).6 We affirm the judgment of the trial court as modified. See
TEX. R. APP. P. 43.2(b).
JAMES T. WORTHEN
Chief Justice
Opinion delivered June 19, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
legal basis for the costs assessed against him. Because we conclude that supplementation of the record with the bill of
costs is appropriate, this argument is moot.
5
The bill of costs includes a jury service fee, clerk‟s fee, bond fee, arrest fee (commit & release), 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), (West
2006); TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(5), (6) (West Supp. 2012); TEX. CODE CRIM. PROC. ANN. art.
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).
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The State argues that Appellant‟s challenge to the order to withdraw funds does not involve a criminal matter
and may not be addressed on direct appeal because it is not a final order. We decline to address the State‟s argument
because the “Order to Withdraw Funds” was incorporated into the trial court‟s judgment of conviction as “Attachment
A.” But even if the “Order to Withdraw Funds” was not incorporated into the judgment as an attachment, other courts
have determined that modification of both the judgment and withholding order is appropriate to delete improperly
assessed fees when sufficiency is challenged on direct appeal. See Allen v. State, No. 06-12-00166-CR, 2013 WL
1316965, at *4 (Tex. App.—Texarkana Apr. 3, 2013, no pet.); Reyes v. State, 324 S.W.3d 865, 868 (Tex. App.—
Amarillo 2010, no pet.).
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JUNE 19, 2013
NO. 12-12-00280-CR
COLBY RAY BALLINGER,
Appellant
V.
THE STATE OF TEXAS,
Appellee
________________________________________________________________________
Appeal from the 114th Judicial District Court
of Smith County, Texas. (Tr.Ct.No. 114-1677-09)
________________________________________________________________________
THIS CAUSE came to be heard on the appellate record and briefs filed herein;
and the same being inspected, it is the opinion of the Court that the judgment of the trial court below
should be MODIFIED and, as MODIFIED, AFFIRMED.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be MODIFIED to reflect that THE AMOUNT OF COURT COSTS IS $205.00; THAT
ATTACHMENT A TO THE JUDGMENT BE MODIFIED TO DELETE THE ASSESSMENT OF $505.00 AND
TO STATE THAT THE TOTAL AMOUNT OF “COURT COSTS, FEES AND/OR FINES AND/OR
RESTITUTION” IS $205.00; that, as MODIFIED, the judgment of the trial court is AFFIRMED; and that
this decision be certified to the trial court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
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