David Moreno v. State ( 2014 )

AFFIRMED as MODIFIED; Opinion Filed January 3, 2014.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00668-CR
No. 05-13-00670-CR
DAVID MORENO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F12-35133-W, F12-35134-W
MEMORANDUM OPINION
Before Justices O’Neill, Myers, and Brown
Opinion by Justice Myers
David Moreno waived a jury and pleaded guilty to aggravated assault with serious bodily
injury involving family violence and a deadly weapon and aggravated assault with a deadly
weapon. See TEX. PENAL CODE ANN. § 22.02(a) (West 2011). In each case, the trial court
assessed punishment, enhanced by a prior felony conviction, at forty-five years’ imprisonment.
The trial court’s judgment also includes an order that appellant pay $244 in court costs in each
case. In three issues, appellant contends there is insufficient evidence in the record to support the
trial court’s orders that he pay $244 in court costs, and one of the judgments should be modified
to reflect appellant’s plea and the trial court’s finding on the enhancement paragraph. We
modify the trial court’s judgment in cause no. 05-13-00668-CR and affirm as modified. We
affirm the trial court’s judgment in cause no. 05-13-00670-CR.
COURT COSTS
In his first two issues, appellant contends the evidence is insufficient to support the trial
court’s judgment that appellant pay $244 in court costs in each case because the clerk’s records
do not contain bills of costs. The State responds that the record contains sufficient evidence in
support of a portion of the amount of costs assessed by the trial court in each case.
If a criminal action is appealed, “an officer of the court shall certify and sign a bill of
costs stating the costs that have been 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).
Costs may not be collected from the person charged with the costs 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 records in these cases do not contain copies of the bills of costs. We,
however, ordered the Dallas County District Clerk to file a supplemental record containing a
certified bill of costs associated with each case, and the clerk did so. See TEX. R. APP. P.
34.5(c)(1) (rules of appellate procedure allow supplementation of clerk’s record if relevant items
have been omitted). Appellant’s complaints that the evidence is insufficient to support the
imposition of costs because the clerk’s records did not contain bills of costs are now moot. See
Coronel v. State, No. 05-12-00493-CR, 2013 WL 3874446, at *4 (Tex. App.––Dallas July 29,
2013, pet. ref’d); Franklin v. State, 402 S.W.3d 894, 895 (Tex. App.—Dallas 2013, no pet.). We
overrule appellant’s first and second issue.
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MODIFY JUDGMENT
In his third issue, appellant contends the judgment in cause no. 05-13-00668-CR should
be modified to show he pleaded true to the enhancement paragraph and the trial court found the
enhancement paragraph true. The State responds that the judgment should be modified as
appellant requests.
Appellant pleaded true to the enhancement paragraph contained in each indictment at the
same time he pleaded guilty to the offenses. The trial court found appellant guilty of the two
offenses and found the enhancement paragraph true. The judgment, however, omits the plea and
finding on the enhancement paragraph. Thus, the judgment is not correct. We sustain
appellant’s third issue. We modify the judgment to show appellant pleaded true to one
enhancement paragraph and the trial court found the enhancement paragraph true. See TEX. R.
APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State,
813 S.W.2d 526, 529–30 (Tex. App.─Dallas 1991, pet. ref’d).
CONCLUSION
In cause no. 05-13-00668-CR, we affirm the trial court’s judgment as modified. In cause
no. 05-13-00670-CR, we affirm the trial court’s judgment.
/s/ Lana Myers
LANA MYERS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
130668F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DAVID MORENO, Appellant Appeal from the 363rd Judicial District
Court of Dallas County, Texas (Tr.Ct.No.
No. 05-13-00668-CR V. F12-35133-W).
Opinion delivered by Justice Myers,
THE STATE OF TEXAS, Appellee Justices O’Neill and Brown participating.
Based on the Court’s opinion of this date, the trial court’s judgment is MODIFIED to
show a plea of true to the first enhancement paragraph and findings of true to the first
enhancement paragraph.
As modified, we AFFIRM the trial court’s judgment.
We ORDER the trial court to enter a new judgment reflecting these modifications.
Judgment entered January 3, 2014.
/ Lana Myers/
LANA MYERS
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DAVID MORENO, Appellant Appeal from the 363rd Judicial District
Court of Dallas County, Texas (Tr.Ct.No.
No. 05-13-00670-CR V. F12-35134-W).
Opinion delivered by Justice Myers,
THE STATE OF TEXAS, Appellee Justices O’Neill and Brown participating.
Based on the Court’s opinion of this date, the trial court’s judgment is AFFIRMED.
Judgment entered January 3, 2014.
/Lana Myers/
LANA MYERS
JUSTICE
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