Robert Earl Adams v. State , 2014 Tex. App. LEXIS 5384 ( 2014 )

Motion for Rehearing Granted in Part; Affirmed; Opinion of February 20,
2014 Withdrawn, and Opinion on Rehearing filed May 20, 2014.
In The
Fourteenth Court of Appeals
NO. 14-12-00768-CR
ROBERT EARL ADAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 178th District Court
Harris County, Texas
Trial Court Cause No. 1313535
1
OPINION ON REHEARING
Appellant, Robert Earl Adams, challenges the trial court’s assessment of a
specific amount of court costs against him in the trial court’s judgment following
his plea of “guilty” to an indictment charging him with the offense of possession
with intent to deliver a controlled substance. On original submission, this court
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We grant appellee’s motion for rehearing based on the first ground in the motion, withdraw the
opinion issued in this case on February 20, 2014, and issue this opinion on rehearing in its place.
We need not and do not address appellee’s alternative second ground for rehearing.
applied its own precedent to the issues in this appeal and affirmed the trial court’s
judgment after deleting the specific amount of court costs assessed in that
judgment. Six days after our opinion on original submission issued, the Court of
Criminal Appeals issued an opinion in which it abrogated this court’s precedent on
several of the issues in this appeal. Accordingly, we grant appellee’s motion for
rehearing based on the first ground in the motion, and apply the new precedent in
this area, under which the trial court’s judgment must be affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant pleaded “guilty” to an indictment charging him with the offense of
possession with intent to deliver a controlled substance; he pleaded “true” to the
indictment’s enhancement allegation. The trial court found him guilty, found the
enhancement allegation to be true, assessed punishment at fifteen years’
confinement, and assessed court costs in the amount of $294. Appellant challenges
only the trial court’s assessment of $294 in court costs.
On original submission, we applied this court’s prior precedent in Johnson v.
State, 389 S.W.3d 513 (Tex. App.—Houston [14th Dist.] 2012), rev’d, 423 S.W.3d
385 (Tex. Crim. App. 2014) and Rogers v. State, 402 S.W.3d 410 (Tex. App.—
Houston [14th Dist.] 2013), vacated and remanded, —S.W.3d—,—, 2014 WL
1464838, at *1 (Apr. 16, 2014). Under this precedent, we concluded that the
record contains no evidence supporting the specific amount of court costs assessed,
and we modified the trial court’s judgment to delete the specified amount of court
costs.
Less than a week after we issued our opinion, the Court of Criminal Appeals
reversed this court’s judgment in Johnson, addressed for the first time several of
the issues raised in the case under review, and abrogated in several respects this
court’s precedent, which was the basis for our opinion on original submission. See
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Johnson v. State, 423 S.W.3d 385, 388–96 (Tex. Crim. App. 2014). Accordingly,
we grant the State’s motion for rehearing based on the first ground in the motion,
analyze the Johnson case, and apply the current law to appellant’s arguments.
II. ANALYSIS
Appellant presents a single issue in which he asserts there is insufficient
evidence to support the $294 in court costs assessed in the trial court’s judgment.
Under this issue, appellant argues as follows: (1) there is no bill of costs or other
documentation or evidence in the record that supports the assessment of $294 in
court costs; (2) because appellant has been given no notice, either in the trial court
or on appeal, of the items of costs assessed against him, appellant has had no
opportunity to be heard on the correctness of those costs and his constitutional
rights to due process and due course of law have been violated; (3) without a bill of
costs, appellant has no way to determine whether any of the assessed costs are for
attorney’s fees assessed as costs under Texas Code of Criminal Procedure article
26.05(g); and (4) the proper remedy upon sustaining appellant’s issue is for this
court to modify the trial court’s judgment to delete the specified amount of court
costs and to order the Texas Department of Criminal Justice to reimburse appellant
for all the money that has been withdrawn from his inmate trust account under
Texas Government Code section 501.014(e)(4) based upon the assessment of costs.
A. What is the legal standard for reviewing assessed court costs under the
Court of Criminal Appeals decision in Johnson v. State?
We first examine the Johnson v. State case to determine the applicable state
of the law regarding appellate review of challenges to a specific amount of costs
assessed in a judgment. In Johnson, the trial court assessed a specific amount of
court costs against appellant in its judgment. See Johnson v. State, 389 S.W.3d
513, 515 (Tex. App.—Houston [14th Dist.] 2012), rev’d, 423 S.W.3d 385 (Tex.
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Crim. App. 2014). On appeal in this court, the original clerk’s record did not
contain a bill of costs. See id. The trial court clerk later filed an affidavit with this
court in which the clerk stated that the record in the case did not include a bill of
costs. See id. After oral argument in this court, the trial court clerk filed a
supplemental record containing what appeared to be a computer screen printout
from the Harris County Justice Information Management System (“JIMS”)
showing court costs in appellant’s case. See id. n.1. The trial court clerk did not
certify that any costs had been incurred or assessed, but the trial court clerk did
certify that the document was a true and correct copy of the original record. See id.
The State did not argue that the supplemental record contained a bill of costs, and
the appellant objected that the supplemental record did not contain a bill of costs.
See id. Under article 103.001 of the Texas Code of Criminal Procedure, “[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.”2
Tex. Code Crim. Proc. art. 103.001 (West 2014). In Johnson, this court concluded
that the JIMS printout did not constitute a written bill of costs under article
103.001. See Johnson, 389 S.W.3d at 515–16 & n.1.
In Johnson, this court also concluded that, for the trial court to properly
render judgment that a criminal defendant pay a specific amount of court costs,
there must be evidence in the record before the trial court supporting the
assessment of this amount of court costs. See id. This court concluded that an
appellate court may review the sufficiency of the evidence supporting the
assessment of a specific amount of costs in a judgment against a criminal
2
Unless otherwise specified, all statutory references in this opinion are to the Texas Code of
Criminal Procedure.
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defendant. See id.at 516–17. And, this court concluded that, though the trial court
did not err in ordering appellant to pay costs, as such is mandated by article 42.16,
the trial court did err in entering a specific dollar amount of costs without any
support in the record for that dollar amount. See id.
The State argued that appellant’s complaint in Johnson was not ripe because,
under article 103.001, appellant did not have to pay any court costs until a written
bill of costs is ready. See id. at 516; Tex. Code Crim. Proc. art. 103.001. This court
stated that, although the trial court’s judgment appeared to conflict with article
103.001 by ordering appellant to pay court costs before a written bill of costs was
ready, the judgment was formalized and could be acted upon in an attempt to
collect the specific amount of assessed court costs. See Johnson, 389 S.W.3d at
516. This court noted that under Government Code section 501.014(e), on
notification by a court, the Texas Department of Criminal Justice shall withdraw
from an inmate’s account any amount the inmate is ordered to pay by court order
for, among other things, court costs. See Tex. Gov’t Code § 501.014(e) (West
2014). This court concluded that the issue was ripe. See id.
In Johnson, the State further suggested that the proper remedy for appellant
was to wait for the production of a written bill of costs and then file a motion
seeking correction of any errors in the assessment of costs under article 103.008.
See Tex. Code Crim. Proc. art. 103.008(a) (West 2014) (providing that “[o]n 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”). This court
concluded that, though this statute provides a procedure for correcting errors in
costs, it does not explicitly or implicitly limit an appellant’s ability to challenge on
direct appeal the sufficiency of the evidence to support the part of the judgment in
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which the trial court assesses a specific amount of court costs. See Johnson, 389
S.W.3d at 516–17.
Concluding that there was no evidence in the record to support the trial
court’s assessment of a specific dollar amount as court costs, this court reformed
the trial court’s judgment to delete the specific amount of costs and affirmed the
judgment as modified. See id. at 517. The Court of Criminal Appeals granted
review in Johnson to adjudicate the issues raised in that case and to provide
guidance to the bench and bar through judicial dicta regarding appellate review of
the assessment of a specific amount of assessed court costs in a judgment. See
Johnson v. State,423 S.W.3d 385, 387–88 (Tex. Crim. App. 2014).
In article 103.001, the Texas Legislature provides that “[a] cost is not
payable by the person charged with the cost until a written bill is produced or is
ready to be produced . . . .” Tex. Code Crim. Proc. art.103.001 (West 2014). In
article 103.003, the Texas Legislature authorizes various government agents to
collect money that is payable, among other things, under article 103.001. See id.
art. 103.003 (West 2014). In Johnson, the Court of Criminal Appeals concluded
that article 103.001 addresses when a cost can be collected by an agent of the State
and that the Texas Legislature intended article 103.001 to prevent a defendant from
paying unsubstantiated court costs. See Johnson, 423 S.W.3d at 389–91, 394–96.
The high court stated that this statute “appears to act as a prohibition on the ability
of designated state agents from collecting nonpayable, but assessed, court costs.”
Id. at 395. The Court of Criminal Appeals concluded that a trial court may order a
defendant to pay a specific amount of court costs in its judgment even though there
is no written bill of costs. See Johnson, 423 S.W.3d at 389–91, 394–96.
The high court agreed with this court that the issues in Johnson were ripe
and that Johnson did not have to preserve error by voicing his complaint in the trial
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court. See id. at 390–91. The high court disagreed with this court’s determination
that, for the trial court to properly order a criminal defendant to pay a specific
amount of court costs, there must be evidence in the record before the trial court at
the time of its judgment that supports the assessment of this amount of court costs.
See id. at 390, 392–94. The Court of Criminal Appeals held that, because court
costs are not part of the guilt or sentence of a criminal defendant and because they
need not be proven at trial, appellate courts should review the assessment of court
costs to determine if there is a basis for the cost, not to determine if there is
sufficient evidence to support the assessment of the specific amount of costs. See
id. at 389–90.
The Court of Criminal Appeals also disagreed with this court’s conclusion
that the JIMS printout in the supplemental clerk’s record was not a bill of costs.
See id. at 392–94. The high court stated that a bill of costs must be written, contain
the items of cost, be signed by the officer who charged the cost or the officer who
is entitled to receive payment for the cost, and must be certified. See id. at 392.The
court concluded that the JIMS printout contained the itemized court costs that had
accrued in Johnson’s case as well as the seal of the trial court clerk and the
signature of a deputy clerk certifying that the document is a true and correct copy
of the original. See id. at 393. The Court of Criminal Appeals concluded that the
JIMS printout was a proper bill of costs that supported the trial court’s assessment
of costs and that this court should have considered it as a potential basis for the
trial courts assessment of costs. See id. at 392–94.
In addition, the Court of Criminal Appeals determined that, while a case is
pending in which an appellant is challenging the trial court’s assessment of costs,
an appellate court may order the trial court clerk to prepare a bill of costs and to
then supplement the clerk’s record on appeal with that bill of costs. See id. at 391–
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92. The high court concluded that an appellant is not prejudiced by the preparation
of a bill of costs during the appeal because preservation of error at trial is not
required and because the appellant has a separate statutory remedy under article
103.008 to correct erroneous or unsupportable costs. See Tex. Code Crim. Proc.
art. 103.008 (West 2014) (stating that,“[o]n 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.”); Johnson,423 S.W.3d at 392. The court indicated
that a defendant may seek correction of the amount of court costs assessed in a
judgment by means of a motion under article 103.008, even if the defendant also
challenges the assessment of court costs on direct appeal. See id. at 391–92, 395.
The high court noted that, although a bill of costs is not required to sustain the trial
court’s assessment of a specific amount of court costs, the issuance of a bill of
costs is “the most expedient, and therefore, preferable method.” Id. at 396.
In Johnson, the court stated that only statutorily authorized court costs may
be assessed against a criminal defendant, and that all costs assessed against a
defendant can be separated into two categories: (1) mandatory costs and (2)
discretionary costs. See id. at 389. A mandatory cost is one other than attorney’s
fees that is a predetermined, legislatively mandated obligation imposed upon
conviction. Id. Because mandatory costs are fixed by statutes that are published
publicly in the laws of the State of Texas, the Johnson court concluded that a
criminal defendant has constructive notice of those laws, and that courts should
take judicial notice of those laws. See id. The high court indicated that, in the
absence of any bill of costs, an appellate court could determine that there is a basis
in the record for the amount of costs assessed by the trial court by taking judicial
notice of mandatory cost statutes and then determining that facts in the record
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show that the various mandatory cost statutes have been triggered and that the sum
of these mandatory costs is equal to or greater than the amount of costs assessed by
the trial court. See id. at 388–89, 395–96 & n.9.
Having reviewed the law applicable under the holding and judicial dicta in
the Court of Criminal Appeals’s opinion in Johnson, we turn to the issues in the
case under review.
B. Is appellant’s court-cost challenge ripe?
We first address the State’s argument that appellant’s complaint is not ripe
for review because appellant is not required to pay the court costs until a written
bill has been produced and no such bill has been produced. In Johnson, this court
rejected the same lack-of-ripeness argument, and the Court of Criminal Appeals
agreed that the challenge to the court costs was ripe without basing its ruling on its
later conclusion that the record contained a bill of costs. See Johnson, 423 S.W.3d
at 391; Johnson, 389 S.W.3d at 516. Under this binding precedent, appellant’s
challenge to the assessment of court costs is ripe. See Johnson, 423 S.W.3d at
391; Johnson, 389 S.W.3d at 516.
C. Is there a basis in the record for the trial court’s assessment of the
specific amount of court costs against appellant?
We next turn to the merits of appellant’s challenge to the assessment of court
costs. Appellant argues that the assessed costs should be deleted because there is
no bill of costs or other documentation or evidence in the record that supports the
assessment of $294 in court costs. In the case under review there is no bill of
costs, and this court has not ordered the trial court clerk to prepare a bill of costs.
Nonetheless, the Court of Criminal Appeals has concluded that an assessment of an
amount of costs may be affirmed without a bill of costs. See Johnson, 423 S.W.3d
at 389–91, 394–96. Appellant asserts that the evidence before the trial court is
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insufficient to support the assessment of costs, but the high court has held that an
assessment of costs is not reviewed to determine if the evidence before the trial
court was sufficient; instead, this court must review the entire record to determine
if there is a basis in the record for the amount of court costs assessed. See Johnson,
423 S.W.3d at 389–91, 394–96.
As instructed by the Court of Criminal Appeals in Johnson, we take judicial
notice of the following mandatory-cost statutes:
• Article 102.011(a)(1), under which a defendant convicted of a felony
must pay $5 when a peace officer makes a warrantless arrest;
• Article 102.011(a)(6), under which a defendant convicted of a felony
must pay $5 for the services performed in the case by a peace officer
during each commitment or release;
• Article 102.005(a), under which a defendant convicted of an offense
in district court must pay $40 for the services of the clerk;
• Article 102.017(a), under which a defendant convicted of a felony in
district court must pay a $5 security fee;
• Texas Local Government Code section 133.102, under which a person
convicted of a felony must pay $133 as court costs;
• Article 102.0045(a), under which a person convicted of an offense
other than a pedestrian or parking offense must pay a $4 jury
reimbursement fee;
• Article 102.005(f), under which a defendant convicted of a felony in
district court must pay $25 for records management and preservation
services;
• Article 102.0178(a) and (g), under which a person convicted of a
felony under Texas Health and Safety Code chapter 481 must pay $60
to fund drug court programs;
• Texas Local Government Code section 133.107, under which a person
a convicted of an offense other than a pedestrian or parking offense
must pay $2 to fund indigent representation;
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• Texas Local Government Code section 133.105, under which a person
convicted of an offense other than a pedestrian or parking offense
must pay $6 to support the judiciary;
• Article 102.0169(a), under which a defendant convicted of an offense
in district court must pay a $4 technology fee.
The record reflects that (1) appellant was arrested without a warrant;3 (2)
appellant was committed or released two times; and (3) appellant was convicted in
a district court of a felony under Texas Health and Safety Code chapter 481, that
was not a pedestrian or parking offense. Therefore, applying the judicial dicta
from the Johnson, we conclude that the there is a basis in the record for assessing
$294 in court costs against appellant. See Johnson, 423 S.W.3d at 389–91, 394–
96; Garza v. State,—S.W.3d —, —, 2014 WL 1258018, at *3–5 (Tex. App.—
Houston [14th Dist.] Mar. 27, 2014, no pet. h.).
Appellant argues that the assessment of costs should not be upheld without a
bill of costs because, without a bill of costs, he has no way to determine whether
any of the assessed costs are for attorney’s fees assessed as costs under Texas Code
of Criminal Procedure article 26.05(g). See Tex. Code Crim. Proc. art. 26.05(g)
(West 2014). Presuming for the sake of argument that this is so, the Court of
Criminal Appeals has stated in binding judicial dicta that a bill of costs is not
required to sustain the trial court’s assessment of a specific amount of court costs.
See Johnson, 423 S.W.3d at 389–91, 394–96. Under this authority, we must reject
appellant’s argument.
For the foregoing reasons, we conclude that appellant’s challenge to the trial
court’s assessment of $294 in court costs against him lacks merit. See Johnson,
423 S.W.3d at 389–91, 394–96; Garza, 2014 WL 1258018, at *3–5.
3
If appellant had been arrested under a warrant, he would be subject to a higher mandatory court
cost. See Tex. Code Crim. Proc. Ann. § 102.011(a)(2).
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D. Have appellant’s constitutional rights to due process and due course of
law been violated in the trial court or on appeal?
Appellant also argues that, because he has been given no notice, either in the
trial court or on appeal, of the items of costs assessed against him, appellant has
had no opportunity to be heard on the correctness of those costs and his
constitutional rights to due process under the United States Constitution and due
course of law under the Texas Constitution have been violated. Presuming without
deciding, that appellant did not have to preserve error as to any part of these
arguments in the trial court, these arguments lack merit under precedent from the
Court of Criminal Appeals. See Cardenas v. State, 423 S.W.3d 396, 398–99;
Johnson, 423 S.W.3d at 388–89. The high court has held that criminal defendants
have constructive notice of the mandatory-cost statutes and that the procedures
outlined in Johnson provide defendants with notice and an opportunity to be heard
because, (1) appellants do not have to preserve error in the trial court; (2)
appellants may challenge the assessment of court costs on direct appeal; and (3)
appellants also may challenge the assessment of court costs by a motion under
article 103.008. See Cardenas v. State, 423 S.W.3d 396, 398–99; Johnson, 423
S.W.3d at 388–89. Therefore, under this precedent, appellant’s constitutional
challenges lack merit. See Cardenas v. State, 423 S.W.3d 396, 398–99; Johnson,
423 S.W.3d at 388–89.
We have rejected all of appellant’s arguments under his sole issue. 4
III. CONCLUSION
In light of the Court of Criminal Appeals’ recent decisions in Johnson v.
State and Cardenas v. State, the arguments that appellant advances lack merit.
4
Because we do not sustain appellant’s issue, we need not address appellant’s argument
regarding the proper relief that should be granted upon sustaining this issue.
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Accordingly, appellant’s sole issue is overruled and the trial court’s judgment is
affirmed.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Boyce and Jamison.
Publish — TEX. R. APP. P. 47.2(b).
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