Donald Ray Atkins v. State ( 2014 )

AFFIRM; and Opinion Filed January 7, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01699-CR
DONALD RAY ATKINS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F10-31661-J
MEMORANDUM OPINION
Before Justices Bridges, Fillmore, and Lewis
Opinion by Justice Lewis
Donald Atkins appeals his conviction for assault/family violence. After pleading guilty
and judicially confessing to the offense, appellant was placed on deferred adjudication probation
for a period of four years and assessed a fine of $2,000. The State subsequently filed a motion to
proceed to an adjudication of guilt and appellant entered a plea of true to the allegations in the
State’s motion. Following a hearing, the trial court adjudicated appellant guilty and sentenced
him to three years imprisonment. In two issues, appellant contends the judgment fails to
accurately reflect the conditions of probation appellant was found to violate, and the evidence is
insufficient to support the trial court’s order that he pay $244 in court costs. We affirm the trial
court’s judgment.
The written judgment adjudicating appellant’s guilt contains a section in which the court
was to indicate which specific conditions of community supervision the probationer violated. In
the judgment in this case, that section reflects the trial court’s finding as follows: “While on
community supervision, Defendant violated the terms and conditions of community supervision
as set out in the State’s ORIGINAL Motion to Adjudicate Guilt as follows: See attached Motion
to Adjudicate Guilt.” There was no motion attached to the judgment. The record contains both
an original and an amended motion to revoke probation or proceed with an adjudication of guilt.
The original motion to adjudicate guilt alleged six probation violations. The amended motion to
adjudicate guilt alleged seven probation violations—the six violations alleged in the original
motion and a new alleged violation of evading arrest. During the hearing, the trial court
specifically found that the State did not prove its allegation that appellant evaded arrest. In its
judgment, the trial court found that appellant violated the terms and conditions of community
supervision as set forth in the State’s original motion—the motion that did not contain the
alleged violation of evading arrest.
On appeal, appellant requests that the judgment be reformed to accurately reflect the
conditions of probation that he was found to have violated. The State agrees, stating: “the trial
court’s judgment should be reformed or modified in the specific way Appellant has requested in
his point of error one.” However, based on our review of the record and the express language of
the judgment, we see no need to reform or modify the judgment. The trial court found that
appellant violated the terms and conditions of community supervision as set out in the State’s
original motion to adjudicate guilt, which did not include an allegation that appellant had evaded
arrest. We overrule appellant’s first issue.
In his second issue, appellant contends the record in this case does not contain a proper
written bill of costs as required by the Texas Code of Criminal Procedure. If a criminal action is
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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 . . . appealed.”
TEX. CODE CRIM. PROC. ANN. art. 103.006 (West 2006). A cost is not payable until a written
bill, containing the items of cost, is produced and signed by the officer who charged the cost or
the officer entitled to receive payment for the cost. Id. art. 103.001.
The clerk’s record in this case did not originally contain a copy of the cost bill. When
appellant raised this issue, we ordered the Dallas County District Clerk to prepare and file a
supplemental clerk’s record containing the certified bill of costs associated with this case; the
clerk has now done so. See TEX. R. APP. P. 34.5(c)(1) (allowing supplementation of clerk’s
record if relevant item has been omitted). Therefore, appellant’s complaint that the evidence is
insufficient to support the imposition of costs because the clerk’s record did not contain a bill of
costs is now moot. See Franklin v. State, 402 S.W.3d 894, 894 (Tex. App.—Dallas 2013, no
pet.). We overrule appellant’s second issue.
In response to the Court’s order requiring supplementation of the record, appellant filed
two objections that the bill of costs in the supplemental clerk’s record is not a “proper bill of
costs” because it consists of “unsigned, unsworn computer printouts.” Appellant acknowledges
the district clerk has certified that the “documents constitute costs that have accrued to date” but
contends this does not “set out the costs as required by statute.” The code of criminal procedure
requires only that a bill of costs be certified and signed “by the officer who charged the costs or
the officer who is entitled to receive payment for the cost,” and state the costs that have accrued.
TEX. CODE CRIM. PROC. ANN. arts 103.001, 103.006. Here, the district clerk provided a “Bill of
Costs Certification” containing the costs that have accrued to date in appellant’s case; it is
certified and signed by the district clerk. The bill of costs certification meets the mandate of the
code of criminal procedure; therefore, we conclude appellant’s objection that the bill of costs is
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not “proper” lacks merit. See Coronel v. State, No. 05-12-00493-CR, 2013 WL 3874446, at *4
(Tex. App.—Dallas July 29, 2013, pet. ref’d).
Appellant also complains the bill of costs was not filed in the trial court or brought to the
trial court’s attention before costs were entered in the judgment. However, there is no
requirement that a bill of costs be presented to the trial court at any time before judgment. Id. at
*5. We overrule appellant’s objections to the supplemented clerk’s record.
Having overruled appellant’s issues, we affirm the trial court’s judgment.
/David Lewis/
DAVID LEWIS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
121699F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DONALD RAY ATKINS, Appellant On Appeal from the Criminal District Court
No. 3, Dallas County, Texas
No. 05-12-01699-CR V. Trial Court Cause No. F10-31661-J.
Opinion delivered by Justice Lewis.
THE STATE OF TEXAS, Appellee Justices Bridges and Fillmore participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 7th day of January, 2014.
/David Lewis/
DAVID LEWIS
JUSTICE
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