Anthony Terrell Latson v. State , 2013 Tex. App. LEXIS 10612 ( 2013 )

Affirmed as Modified and Opinion filed August 22, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00559-CR
ANTHONY TERRELL LATSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Cause No. 1348603
OPINION
Appellant Anthony Terrell Latson appeals his aggravated-robbery
conviction, contending that the trial court committed fundamental error by making
comments during voir dire on the meaning of ―beyond a reasonable doubt.‖
Appellant also challenges the trial court’s order that appellant pay court costs that
are not supported by the record. We modify the trial court’s judgment to delete the
specific amount of costs and affirm the judgment as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was charged by indictment with the felony offense of aggravated
robbery, which was enhanced with one prior felony conviction. Appellant pleaded
―not guilty.‖ The jury found appellant guilty and assessed appellant’s punishment
at seventy-five years’ confinement and a fine of $7,500. The judgment contains a
handwritten notation assessing $409 in court costs. In two issues, appellant now
challenges his conviction and the assessment of these costs.
II. ISSUES AND ANALYSIS
A. Did the trial court commit fundamental error by making comments
during voir dire regarding the meaning of “beyond a reasonable
doubt?”
In his first issue, appellant asserts that the trial court committed fundamental
error by making comments during voir dire regarding the State’s burden of proof
that appellant asserts tainted the presumption of innocence. Appellant refers to the
following comments by the trial court:
Now, I’ve told you that the State has the burden of proof beyond a
reasonable doubt. Any idea what beyond a reasonable doubt is?
Good, because you know what, the Courts haven’t defined what
beyond a reasonable doubt is. Several years ago the Court of Appeals
tried to come up with a definition that lawyers could use in criminal
cases, and they ultimately decided that it wasn’t appropriate for them
to define beyond a reasonable doubt. Because beyond a reasonable
doubt is that kind of proof that proves to you individually kind of in
your heart, in your mind that the Defendant is guilty; and it’s
impossible to really define that. I can tell you what it isn’t; it’s not
proof beyond all possible doubt. . . 1
According to appellant, by these comments, the trial court defined reasonable
doubt as simply what is in each juror’s ―heart.‖
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Emphasis added.
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Appellant did not object to these comments during voir dire, but appellant
asserts on appeal that these comments tainted the presumption of innocence and,
thus, amount to fundamental error. Appellant relies upon the statements to this
effect in the plurality opinion in Blue v. State. See 41 S.W.3d 129, 132 (Tex. Crim.
App. 2000) (plurality op.). The plurality opinion in Blue is not binding precedent.
See Pearson v. State, 994 S.W.2d 176, 177 n.3 (Tex. Crim. App. 1999); Murchison
v. State, 93 S.W.3d 239, 262 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).
Nonetheless, we presume, without deciding, that the trial court’s comments would
constitute fundamental error if they tainted the presumption of innocence.
The trial court’s comments did not indicate that appellant was guilty or
apply the burden of proof to facts of the case. In these statements the trial court
did not shift the burden of proving appellant’s guilt from the State to appellant, nor
did the trial court say that the jurors should follow their hearts and ignore the
instructions in the court’s charge. We conclude that the trial court’s comments did
not taint the presumption of innocence. See Jasper v. State, 61 S.W.3d 413, 421
(Tex. Crim. App. 2001) (concluding that trial court’s comments did not taint the
presumption of innocence); Haro v. State, 371 S.W.3d 262, 266 (Tex. App.—
Houston [1st Dist.] 2011, pet. ref’d) (concluding that trial court’s comments during
voir dire did not taint presumption of innocence in case in which trial court stated
that reasonable doubt is what the individual juror believes it to be); Ganther v.
State, 187 S.W.3d 641, 650–51 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d)
(concluding that trial judge’s comments during voir dire did not rise to the level of
tainting the presumption of innocence).
Appellant cites no Texas cases in which the court held that the trial court’s
statements during voir dire regarding the meaning of reasonable doubt tainted the
presumption of innocence. In Fuentes v. State, the trial judge made a comment
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before the jury indicating that the defendant was guilty beyond a reasonable doubt
if ―based upon your evaluation of that evidence if you do not believe in your heart
and in your conscience, based upon your evaluation of that evidence, that the
defendant is, in fact, guilty of the offense.‖ See 991 S.W.2d 267, 273 (Tex. Crim.
App. 1999). The Court of Criminal Appeals concluded that appellant waived any
error by failing to object to the trial court’s comments, thus indicating that these
comments were not fundamental error. See id. This precedent provides some
support for the conclusion that the trial court’s comments in the case under review
do not constitute fundamental error.
For the foregoing reasons, we conclude that the trial court did not commit
fundamental error by making these comments during voir dire. See Jasper, 61
S.W.3d at 421; Fuentes, 991 S.W.2d at 273; Haro, 371 S.W.3d at 266; Ganther,
187 S.W.3d at 650–51. Accordingly, we overrule appellant’s first issue.
B. Did the trial court err by requiring appellant to pay court costs that are
not supported by the record?
In his second issue, appellant asserts there is insufficient evidence to support
the specific amount of court costs assessed in the trial court’s judgment. The trial
court ordered appellant to pay $409 in court costs. As a preliminary matter, we
consider the State’s argument that appellant’s complaint is not ripe because
appellant is not required to pay the court costs until a written bill has been
produced. The State refers to article 103.001, entitled ―Costs Payable,‖ which
provides:
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. Crim. Proc. Code Ann. art. 103.001 (West 2012).
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The ripeness doctrine protects against interference until a ―decision has been
formalized and its effects felt . . . by the challenging parties.‖ Johnson v. State,
389 S.W.3d 513, 516 (Tex. App.—Houston [14th Dist.] 2012, pet. granted). In
determining whether an issue is ripe, we weigh the fitness of the issues for judicial
decision against the hardship to the parties of withholding court consideration. Id.
The trial court ordered appellant in its judgment to pay $409 in court costs. The
judgment was certainly formalized and could be acted upon in an attempt to collect
the specified amount. See id. Accordingly, appellant’s second issue is ripe for
adjudication.
We next consider the merits of appellant’s second issue. In Johnson v. State,
this court held that if the record does not contain evidence to support the specific
dollar amount of assessed court costs, then the trial court has erred by assessing the
specific amount. See id. at 517. As in Johnson, it is undisputed that the record
contains no bill of costs or any other evidence that would support the specific
amount, $409, assessed in the judgment. See id. The supplemental clerk’s record
contains a print out of a computer screen from the Harris County Justice
Information Management System (JIMS), entitled ―Cost Bill Assessment,‖
identifying $409 in court costs. This court has determined that an unsigned
computer screen printout from JIMS, that does not appear to have been brought to
the attention of the trial court judge, is not an actual bill of costs as contemplated
by article 103.001. See Jelks v. State, 397 S.W.3d 759, 759 (Tex. App.—Houston
[14th Dist.] 2013, no pet.) (concluding that a computer screen printout from JIMS
signed by an unidentified individual, when printout was not presented to the trial
judge, could not be considered an appropriate bill of costs); Johnson, 389 S.W.3d
at 517, n.1.; Tex. Crim. Proc. Code Ann. art. 103.001. The JIMS document does
not bear a signature, nor is there evidence in the record that it was presented to the
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trial court before the specific dollar amount ($409) was included in the judgment.
See Jelks, 397 S.W.3d at 759; Johnson, 389 S.W.3d at 517, n.1. Thus, the JIMS
document cannot be considered an appropriate bill of costs. See id. No other
evidence in the record supports the specific dollar amount assigned as court costs.
See id. We note that the trial court did not err in ordering appellant to pay costs, as
costs are mandated by statute; but, the trial court did err in entering a specific
dollar amount of court costs in the judgment without any evidence in the record to
support that amount. See Johnson, 389 S.W.3d at 517; Tex. Crim. Proc. Code
Ann. art. 103.001 (West 2006). Because we conclude the record contains no
evidence to support the trial court’s assessment of a specific dollar amount as court
costs, we reform the trial court’s judgment to delete the specific amount of court
costs. See Johnson, 389 S.W.3d at 517.
Appellant also requests additional relief under his second issue. He seeks an
order to the Texas Department of Criminal Justice (1) to reimburse all money that
has been withdrawn from his inmate trust account under Texas Government Code
section 501.014(e)(4), and (2) to refrain from withdrawing any other funds from
this account to satisfy theses costs. See Tex. Gov’t Code Ann. § 501.014(e)(4)
(West 2009) (allowing funds to be withdrawn from an inmate’s account to pay
required debts, such as court costs, in accordance with a judgment). First,
appellant has no grounds to seek this relief from an appellate court without having
first made this request in the trial court. See Tex. R. App. P. 33.1. Second, the
record contains no evidence that funds have been withdrawn from appellant’s
inmate trust fund. Third, civil proceedings govern the withdrawal of funds and are
not properly raised in this appeal of appellant’s criminal conviction. See Johnson
v. Tenth Judicial Dist. Court of Appeals at Waco, 280 S.W.3d 866, 874–75 (Tex.
Crim. App. 2008) (concluding section 501.014(e) of the Government Code is not
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on its face a criminal law statute and therefore issues regarding the withdrawal of
inmate monies are civil in nature). See also Harrell v. State, 286 S.W.3d 315, 318
(Tex. 2009) (determining that when the subject matter of a case does not concern
the underlying criminal judgment, and, instead, concerns the enforcement or
seizure of funds, the matter is more substantially civil than criminal). We,
therefore, decline to order the additional relief requested by appellant.
The trial court’s judgment, as modified, is affirmed.
/s/ Kem Thompson Frost
Justice
Panel consists of Justices Frost, McCally, and Donovan.
Publish — TEX. R. APP. P. 47.2(b).
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