Kelvin Houston A/K/A Kevin Houston v. State , 2013 Tex. App. LEXIS 10600 ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00514-CR
KELVIN HOUSTON A/K/A KEVIN APPELLANT
HOUSTON
V.
THE STATE OF TEXAS STATE
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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
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OPINION
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I. INTRODUCTION
In this appeal, we address whether, in determining Appellant Kelvin
Houston a/k/a Kevin Houston‘s first issue––challenging the sufficiency of the
evidence to support a provision in his judgment that taxes $570 in court costs
against him––we may consider a bill of costs that was prepared after Houston
filed his appellate brief and that is included in a supplemental clerk‘s record filed
with this court. Because we hold that we may consider the bill of costs, we will
overrule Houston‘s first issue. Because we sustain Houston‘s second issue,
challenging the judgment‘s provision that requires him to reimburse
compensation paid by the county to any appointed attorney who represented
him, we will modify the judgment to delete that provision, and we will affirm the
judgment as modified.
II. PROCEDURAL BACKGROUND
Houston was charged with two counts of sexual assault. He was found
indigent and appointed counsel prior to trial.1 After the jury found him guilty of
both counts, the trial court sentenced him to 35 years‘ confinement on each
count, to be served concurrently. The trial court entered a judgment of conviction
on September 28, 2012. As a part of that written judgment, the trial court
ordered that Houston ―[r]eimburse compensation paid by Denton County to any
appointed counsel on this cause‖ and assessed court costs of $570. The trial
court found Houston indigent for purposes of appeal and appointed an attorney
to represent him.
The original clerk‘s record in this case did not contain a bill of costs.
However, after Houston‘s court-appointed appellate counsel filed an appellate
brief on March 13, 2013, the State sent the district court clerk a letter requesting
that the district clerk prepare, certify, and file a supplemental clerk‘s record
1
As part of its indigency determination, the trial court also found that
Houston had sufficient financial resources to pay $10 per week, beginning on
October 15, 2010, to offset the cost of legal services and related expenses. The
record does not reflect whether any payments were ever made.
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containing the bill of costs. The supplemental record, containing the State‘s letter
and a bill of cost, was filed in this court on March 28, 2013. The bill of costs is
dated ―3/22/2013 7:48 AM,‖ lists various fees and costs in this case totaling
$798.80 (of which the bill of costs shows that $2.64 has been paid, leaving a
balance of $796.16), and is signed by the Denton County District Clerk.
III. COURT COSTS
Houston argues in his first issue that at the time that the trial court entered
its written judgment and assessed $570 in court costs, the evidence was
insufficient to support that specific dollar amount of costs. He argues that no bill
of costs was before the trial court at that time and that ―the record is completely
silent and the evidence is insufficient as to what the court costs actually were and
if the stated amount is correct or appropriate.‖
The State responds that the bill of costs in the supplemental record
provides a sufficient statutory basis to support the trial court‘s assessment of
$570 in court costs. The State further argues that Houston is obligated to pay
not only $570 in court costs as assessed in the written judgment but also the
amount in excess of that number as shown on the bill of costs, after subtracting
$30 in subpoena service fees that the State concedes should not have been
taxed to Houston.2 The State requests that ―[t]o the extent it is necessary to do
2
Specifically, the State points to the following language in the written
judgment as support for its argument that Houston owes the increased court
costs shown on the bill of costs: ―The Court ORDERS that upon release from
confinement, Defendant proceed immediately to the office of the District Clerk.
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so,‖ we modify the judgment to reflect that Houston has been ordered to pay
court costs of $768.80.
A. Law on Court Costs
Court costs are pre-determined, legislatively-mandated obligations
resulting from a conviction. See, e.g., Tex. Gov‘t Code Ann. §§ 102.001–.142
(West 2013) (setting forth various court costs that a convicted person ―shall‖
pay); see also Armstrong v. State, 320 S.W.3d 479, 481 (Tex. App.—Amarillo
2010), rev’d on other grounds, 340 S.W.3d 759 (Tex. Crim. App. 2011). The
court of criminal appeals has explained that ―court costs, as reflected in a
certified bill of costs, need neither be orally pronounced nor incorporated by
reference in the judgment to be effective.‖ Armstrong, 340 S.W.3d at 766; Weir
v. State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009). ―This is because court
costs do not ‗alter the range of punishment to which the defendant is subject, or
the number of years assessed‘ and, thus, are not part of the sentence.‖
Armstrong, 340 S.W.3d at 767 (quoting Weir, 278 S.W.3d at 367). Instead, court
costs are compensatory in nature; that is, they are ―‗a nonpunitive recoupment of
the costs of judicial resources expended in connection with the trial of the case.‘‖
Id. (quoting Weir, 278 S.W.3d at 366) (contrasting costs to fines, which are
punitive in nature and generally must be orally pronounced in the defendant‘s
Once there, the Court ORDERS Defendant to pay, or make arrangements to pay,
any remaining unpaid fines, court costs, restitution and any additional fees
incurred as ordered by the Court above.‖
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presence). The code of criminal procedure provides that the trial court‘s
judgment ―shall also adjudge the costs against the defendant, and order the
collection thereof.‖ Tex. Code Crim. Proc. Ann. art. 42.16 (West 2006).
Under article 103.001 of the 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.‖
Id. art. 103.001 (West 2006). Article 103.006 provides that 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).
B. Bill of Costs Considered; Record Now Contains Support for Trial
Court’s Order of Court Costs
The costs assessed here do not include attorney‘s fees; as we explain
below, the State concedes that Houston is not required to reimburse the county
for his appointed counsel‘s attorney‘s fees. And it is undisputed that the bill of
costs contained in the supplemental clerk‘s record is the only item anywhere in
the record that supports the trial court‘s assessment of $570 in court costs.
Several of our sister courts that have addressed the issue we are faced
with today have allowed supplementation of the clerk‘s record with a bill of costs
that was prepared and filed with the court after the appellant appealed, and have
considered that bill of costs as support for the trial court‘s earlier assessment of a
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specific amount of court costs. See Coronel v. State, No. 05-12-00493-CR, 2013
WL 3874446, at *5 (Tex. App.—Dallas July 29, 2013, no. pet. h.); Ballinger v.
State, No. 12-12-00280-CR, 2013 WL 3054935, at *1 (Tex. App.—Tyler June
19, 2013, no. pet.); Allen v. State, No. 06-12-00166-CR, 2013 WL 1316965, at *2
(Tex. App.—Texarkana Apr. 3, 2013, no pet.); Cardenas v. State, No. 01-11-
01123-CR, 2013 WL 1164365, at *5 (Tex. App.—Houston [1st Dist.] Mar. 21,
2013, pet. filed) (op. on reh‘g). On the other hand, the Fourteenth Court of
Appeals has repeatedly refused to consider a ―computer screen printout‖ from
the Justice Information Management System (JMIS) as an ―actual bill of costs‖
supporting a trial court‘s order of a specific dollar amount of court costs when no
evidence in the record shows that the printout was presented to the trial court
before it included the specific dollar amount of court costs in the judgment. See
Johnson v. State, 389 S.W.3d 513, 515 & n.1 (Tex. App.—Houston [14th Dist.]
2012, pet. granted) (holding that an unsigned computer printout from JIMS that
does not show it was brought to the attention of the trial judge is not an actual bill
of costs under article 103.001); see also Romero v. State, No. 14-12-00674-CR,
2013 WL 2489961, at *3 (Tex. App.—Houston [14th Dist.] June 11, 2013, pet.
filed); Rogers v. State, 402 S.W.3d 410, 420 n.9 (Tex. App.—Houston [14th Dist.]
2013, pet. filed); Reyes v. State, No. 14-12-01028-CR, 2013 WL 2386657, at *1
(Tex. App.—Houston [14th Dist.] May 30, 2013, pet. filed) (mem. op., not
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designated for publication); Jelks v. State, 397 S.W.3d 759, 760 (Tex. App.—
Houston [14th Dist.] 2013, pet. filed).3
We agree with our sister courts that we can consider a bill of cost that is
included in a supplemental record on appeal. The code of criminal procedure
does not contemplate that a bill of costs be prepared and filed at the time the trial
court signs the judgment of conviction or before a criminal conviction is appealed.
See Tex. Code Crim. Proc. Ann. arts. 103.001, .006. Instead, article 103.001
provides that costs are not payable by a defendant until a written bill of costs is
produced or ready to be produced, and article 103.006 specifically provides that
when a criminal action is appealed, an officer of the trial court ―shall certify and
3
Although at first blush, it appears that the Fourteenth court‘s position in
these cases creates a split of authority, we have found no cases in which that
court was presented with a supplemental record containing a bill of costs that
satisfied article 103.001‘s requirement that the bill of costs be signed by an
officer who charged the cost or the officer entitled to receive payment for the
cost. Indeed, the Fourteenth court in Johnson noted that it ―need not, and in fact
should not, attempt to predict what might happen if an actual bill of costs is
subsequently produced.‖ 389 S.W.3d at 517 n.4.
This court, when presented with a supplemental record containing a
document from the ―Community Supervision and Corrections Department of
Tarrant County‖ and titled, ―Revocation Restitution/Reparation Balance Sheet,‖
refused to consider the document as improperly supplemented under rule
34.4(c)(1). Boyd v. State, No. 02-11-00035-CR, 2012 WL 1345751, at *2 (Tex.
App.—Fort Worth Apr. 19, 2012, no pet.) (mem. op., not designated for
publication). But, unlike in the present case, the document in Boyd was not a bill
of costs prepared and filed in accordance with article 103.006.
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sign a bill of costs‖ and ―send the bill of costs to the court to which the action . . .
is . . . appealed.‖ Id. arts. 103.001, .006; see also Tex. R. App. P. 34.5(c)
(providing for supplementation of the clerk‘s record with ―omitted items‖); Allen,
2013 WL 1316965, at *2 (reasoning that substance of bill of costs is not newly
created but ―merely a documentation of what occurred during . . . trial‖);
Cardenas, 2013 WL 1164365, at *5 (reasoning that rule 34.5(c) does not exclude
the possibility of supplementation with new documents, the creation of which is
otherwise required by law).
Here, in arguing his sufficiency issue, Houston argues that ―there is no
support contained in the record for [the $570] dollar amount; there is no bill of
costs.‖ Now that the appellate record has been supplemented with a bill of
costs—containing the items of cost charged to Houston and signed by the district
clerk—the record contains support for the trial court‘s assessment of $570 in
court costs. Houston has not filed a reply brief or supplemented or amended his
brief to raise any challenge to the correctness of any specific cost listed in the bill
of costs.4 See Tex. R. App. P. 38.3, 38.7. We decline to undertake a review of
the correctness of each cost charged in the bill of costs when Houston has not
4
To the extent that Houston may desire to challenge any specific item on
the bill of costs, article 103.008 of the code of criminal procedure provides that
upon motion by defendant filed not later than one year after date of final
disposition of case, the court in which the case is pending or was last pending
shall correct any error in the costs. See Tex. Code Crim. Proc. Ann. art. 103.008
(West 2006).
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done so.5 See Coronel, 2013 WL 3874446, at *6 (noting that because appellant
did not challenge propriety or legality of specific costs assessed in his original
brief or his two post-submission briefs, court would not address those issues).
Because the record now contains a bill of costs, setting forth the statutorily-
mandated court costs owed by Houston and signed by the Denton County
District Clerk, we hold that the bill of costs, stating that Houston owes $796.16 in
court costs, supports the trial court‘s order of $570 in court costs in its written
judgment. Regarding the State‘s suggestion that we modify the written judgment
―to the extent it is necessary‖ to reflect the increased court costs reflected in the
bill of costs, we do not find it necessary; court costs need not be incorporated
into the judgment to be effective.6 See Armstrong, 340 S.W.3d at 766; Weir, 278
S.W.3d at 367; see also Pfeiffer v. State, 363 S.W.3d 594, 601–02 & n.32 (Tex.
Crim. App. 2012) (explaining when courts may address the state‘s cross-points).
For these reasons, we overrule Houston‘s first issue.
5
A variety of challenges are possible to any particular item of costs in any
given case, such as a claim that the cost is not applicable to the defendant or a
claim that assessment of that cost is unconstitutional on any number of grounds.
6
Moreover, after a defendant has paid court costs, no further costs may be
charged against that defendant unless a motion is presented to the court that
additional costs are due. See Tex. Code Crim. Proc. Ann. art. 103.007 (West
2006). Because the record before us does not reflect whether Houston has or
has not paid court costs, we decline to impose additional costs on him in what
could be contravention of article 103.007‘s requirements.
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IV. ATTORNEY’S FEES
In his second issue, Houston challenges the judgment‘s provision that
requires him to reimburse compensation paid by the county to any appointed
counsel who represented him; the State agrees with Houston that he should not
be ordered to reimburse court-appointed attorney‘s fees because of his indigent
status. We also agree.
The trial court found Houston indigent prior to trial and did not make a later
determination that he was able to pay all or a portion of his appointed attorney‘s
fees. See Tex. Code Crim. Proc. Ann. art. 26.05(g) (West Supp. 2012)
(providing for repayment of court-appointed attorney‘s fees that trial court finds
defendant is able to pay); id. art. 26.04(p) (West Supp. 2012) (providing that
defendant who is determined by court to be indigent is presumed to remain
indigent for remainder of proceedings unless material change in his financial
circumstances occurs); Cates v. State, No. PD-0861-12, 2013 WL 3196932, at *1
(Tex. Crim. App. June 26, 2013) (citing Mayer v. State, 309 S.W.3d 552 (Tex.
Crim. App. 2010), and holding that no factual basis for reimbursement of
attorney‘s fees existed in record when trial court found defendant indigent and
never found that he was able to repay court-appointed counsel‘s fees).
Accordingly, we sustain Houston‘s second issue and will modify the judgment to
delete the provision requiring Houston to reimburse the county for court-
appointed attorney‘s fees.
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V. CONCLUSION
Having overruled Houston‘s first issue challenging the sufficiency of the
evidence to support the trial court judgment‘s provision that requires him to pay
$570 in court costs, and having sustained Houston‘s second issue challenging
the trial court judgment‘s provision that requires him to reimburse compensation
paid by the county to any appointed counsel who represented him, we modify the
judgment to delete the requirement that Houston ―[r]eimburse compensation paid
by Denton County to any appointed counsel on this cause‖ and affirm the
judgment as modified. See Tex. R. App. P. 43.2(b).
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.
PUBLISH
DELIVERED: August 22, 2013
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