Aaron Joseph Diamond v. State ( 2017 )

NO. 12-16-00243-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
AARON JOSEPH DIAMOND, § APPEAL FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Aaron Joseph Diamond appeals his conviction for possession of a controlled substance.
In one issue, he contends the evidence is insufficient to support the trial court’s order of court
costs. We sustain Appellant’s issue, modify the judgment, and affirm as modified.
BACKGROUND
On May 7, 2015, Appellant pleaded “guilty” to possession of a controlled substance, a
second degree felony. He was sentenced to imprisonment for ten years, but the trial court
suspended imposition of his sentence and placed him on community supervision for a period of
eight years. Subsequently, the State filed a motion to revoke his community supervision alleging
that Appellant violated the terms and conditions of community supervision. Appellant pleaded
“true” to the allegations and, on August 26, 2016, the trial court revoked Appellant’s community
supervision and imposed a sentence of imprisonment for six years. The judgment adjudicating
guilt assessed $334 in court costs. The bill of costs shows a remaining balance of $319 in court
costs. This appeal followed.
COURT COSTS
In Appellant’s sole issue, he argues that the evidence is insufficient to support the
assessment of court costs in the amount of $334 because the bill of costs reflects a remaining
balance of $319. The State concedes error.
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); Johnson v. State, 405 S.W.3d
350, 354 (Tex. App.—Tyler 2013, no pet.). Requiring a 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); see also
Armstrong, 340 S.W.3d at 767; Johnson, 405 S.W.3d at 355.
Discussion
The judgment adjudicating guilt assesses $334 in court costs and includes a document
identified as “Attachment A Order to Withdraw Funds.” Attachment A states that Appellant has
incurred “[c]ourt costs, fees and/or fines and/or restitution” in the amount of $334. However, the
bill of costs reflects a remaining balance of $319.
We have reviewed the items listed in the bill of costs, and all listed costs and fees are
authorized by statute.1 However, because some costs have already been paid, the evidence is
insufficient to support the trial court’s assessment of $334 in court costs as reflected in its
judgment adjudicating guilt and its attached order to withdraw funds. See, e.g., Lack v. State,
No. 12–13–00052–CR, 2013 WL 3967698, at *1–2 (Tex. App.—Tyler July 31, 2013, no pet.)
(mem. op., not designated for publication) (evidence insufficient to support court costs when
different from remaining balance reflected in bill of costs). The evidence is sufficient, however,
to support the imposition of $319 in court costs. See id. The State filed a letter brief in which it
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The bill of costs includes a clerk’s fee, consolidated court fees, courthouse security fee, drug court
program fee, e-filing fee, indigent defense court cost, judiciary fund county, judiciary fund state, jury service fee,
records management fee, records management and preservation fee, technology fee, time payment fee, and warrant
fee. See Tex. CODE CRIM. PROC. ANN. arts. 102.0045(a), 102.005(a), (f)(1)-(2), 102.011(a)(2), 102.0169(a),
102.017(a), 102.0178(a)(2) (West 2006 and Supp. 2016); TEX. LOC. GOV’T CODE ANN. §§ 133.102(a)(1),
133.103(a)(1)-(2), 133.105(a)-(b), 133.107(a) (West 2008 and Supp. 2016); TEX. GOV’T CODE ANN. §§ 51.851(d)
(West Supp. 2016).
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concedes that the judgment and its attached order to withdraw funds should be modified to
reflect the remaining balance of $319 in court costs.
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. [Panel Op.] 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 attached order to withdraw funds 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 $319 in court costs. See TEX. R. APP. P. 43.2(b); see also Brewer, 572 S.W.2d at
723. We also modify the attached order to withdraw funds by deleting the $334 in court costs
and replacing it with the amount of $319. See Ballinger v. State, 405 S.W.3d 346, 350 (Tex.
App.—Tyler 2013, no pet.). 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 August 9, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
AUGUST 9, 2017
NO. 12-16-00243-CR
AARON JOSEPH DIAMOND,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-0266-15)
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 and attached order to withdraw funds below be modified to reflect the amount
of $319 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.