Thomas Shane Pearce v. State ( 2017 )

NO. 12-16-00320-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
THOMAS SHANE PEARCE, § APPEAL FROM THE
APPELLANT
V. § COUNTY COURT AT LAW
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Thomas Shane Pearce appeals his conviction for “assault caus[ing] bodily injury family
violence.” In a single issue, Appellant contends the imposition of court costs is not supported by
the record. We modify and affirm as modified.
BACKGROUND
Appellant was charged by information with “assault caus[ing] bodily injury family
violence.” Appellant pleaded “guilty” to that offense on December 5, 2016. The trial court
accepted Appellant’s plea and sentenced him to eighteen months deferred adjudication
community supervision. The judgment and bill of costs both show the amount of court costs as
$269. This appeal followed.
COURT COSTS
In his sole issue, Appellant contends that the trial court erred in imposing court costs in
an amount not supported by the record. At the time of the appeal, the certified bill of costs was
not in the record. Since the filing of Appellant’s brief, the record has been supplemented with a
bill of costs.1 Accordingly, we review Appellant’s issue as a challenge to the sufficiency of the
evidence supporting court 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.
Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Cardenas v. State, 403 S.W.3d
377, 382 (Tex. App.–Houston [1st Dist.] 2013), aff’d, 423 S.W.3d 396 (Tex. Crim. App. 2014).
Requiring a convicted defendant to pay court costs does not alter the range of punishment, is
authorized by statute, and is generally not conditioned on a defendant’s ability to pay. See TEX.
CODE CRIM. PROC. ANN. art. 42.16 (West 2006); Armstrong, 340 S.W.3d at 767; see also
Johnson, 405 S.W.3d at 354.
Evidence Supporting Assessment of Costs
The bill of costs shows the amount of court costs is $269, and the trial court’s judgment
assesses court costs in that amount. We have review the items listed in the bill of costs, and all
listed costs and fees are authorized by statute. See, e.g., Ireland v. State, No. 03-14-00616-CR,
2015 WL 4914982, at *3 n.3 (Tex. App.—Austin Aug. 12, 2015, no pet.) (mem. op., not
designated for publication) (identifying statutory sources for assessment of fees in bill of costs).
However, the bill of costs includes the $4 “jury service fee” and $25 “criminal district attorneys
fee.” The State concedes these fees are not supported by the record because Appellant was
placed on deferred adjudication community supervision and has not been convicted. We agree.
The applicable statutes expressly state that these two particular fees apply to a person convicted
of an offense. See TEX. CODE CRIM. PROC. ANN. arts. 102.0045(a) (West Supp. 2016),
102.008(a), (d) (West 2006). Appellant is on deferred adjudication community supervision and
is not yet convicted of an offense. See Ex Parte Smith, 296 S.W.3d 78, 80 (Tex. Crim. App.
2009) (“The essence of deferred adjudication is that the defendant is placed on community
supervision without a finding of guilt and without being convicted of any offense[]”) (quoting 6
George E. Dix & Robert O. Dawson, Texas Practice–Criminal Practice and Procedure § 39.51
(2001)).
1
See Johnson v. State, 405 S.W.3d 350, 353 (Tex. App.—Tyler 2013, no pet.) (permitting
supplementation of record with bill of costs, and reviewing issue as challenge to sufficiency of the evidence to
support imposition of court costs).
2
We have the authority to modify a judgment to make the record speak the truth when we
have the necessary data and information to do so. Brewer v. State, 572 S.W.2d 719, 723 (Tex.
Crim. App. 1978); Ingram v. State, 261 S.W.3d 749, 754 (Tex. App.–Tyler 2008, no pet.); Davis
v. State, 323 S.W.3d 190, 198 (Tex. App.–Dallas 2008, pet. ref’d). Because we have the
necessary data and evidence to reform the judgment in this case, we conclude that the judgment
and bill of costs should be modified to reflect the correct amount of court costs. See TEX. R.
APP. P. 43.2(b); see also Brewer, 572 S.W.2d at 723; Ingram, 261 S.W.3d at 754; Davis, 323
S.W.3d at 198. We sustain Appellant’s sole issue.
DISPOSITION
Having sustained Appellant’s sole issue, we modify the trial court’s judgment to reflect
the amount of $240 in court costs. See TEX. R. APP. P. 43.2(b). We affirm the judgment as
modified.
JAMES T. WORTHEN
Chief Justice
Opinion delivered August 9, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
3
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
AUGUST 9, 2017
NO. 12-16-00320-CR
THOMAS SHANE PEARCE,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the County Court at Law
of Smith County, Texas (Tr.Ct.No. 001-82843-16)
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 the amount of $240 in court costs; and as
modified, the trial court’s judgment 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., Hoyle, J., and Neeley, J.