Perez, Eduardo ( 2014 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0498-13
EDUARDO PEREZ, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS
HARRIS COUNTY
JOHNSON, J., delivered the opinion of the Court in which KELLER, P.J., and
MEYERS, WOMACK, KEASLER, HERVEY, COCHRAN, and ALCALÁ, JJ., joined. ALCALÁ,
J., filed a concurring opinion in which KELLER, P.J., and HERVEY, and COCHRAN, JJ.,
joined. PRICE, J., concurred.
OPINION
As stated by the court of appeals, “This is an appeal about court costs.” Perez v. State, 2013
Tex. App. LEXIS 5121, No. 14-12-00893-CR (Tex. App.—Houston [14th Dist.], memorandum
opinion filed April 25, 2013) (not designated for publication). The state points out that the facts
regarding the underlying offense are not relevant to this appeal about court costs, but notes that the
clerk’s record contains information relevant to the assessment of court costs.
I. BACKGROUND
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In June of 2008, appellant plead guilty to burglary of a habitation and, pursuant to a plea
agreement, was placed on three years’ deferred-adjudication community supervision and fined $300.
The Order of Deferred Adjudication included a designation of court costs of $203. Appellant did
not appeal. In October of 2008, the state filed a motion to adjudicate appellant’s guilt.
In 2012, the trial court adjudicated appellant’s guilt and assessed punishment at two years’
incarceration and a $300 fine. The judgment adjudicating guilt also specifically included a
designation of court costs of $240. Accompanying that judgment in the clerk’s record on appeal are
three pages that purport to be a “cost bill assessment” and contain specific amounts for several kinds
of costs. Those pages also contain a stamp and the signature of a deputy district clerk and are dated
“11/7/12,” which is several weeks after the September 20, 2012 date on which the trial judge signed
and entered the judgment adjudicating guilt.
II. COURT OF APPEALS
On direct appeal, appellant complained that the judgment reflected court costs that were not
substantiated by the record and asserted that the list of court costs was not a proper “cost bill”
because it was generated well after the judgment and afforded him no opportunity to object.
Appellant argued that this listing of court costs was made up of “screen shots” from the county’s
proprietary information-management system and contained no details regarding when it was created
or that the trial court saw the list before signing the judgment. He contended that this newly created
document was not a bill of costs as contemplated, and required, by law and failed to fulfill due-
process requirements. He also pointed out that he was never given the opportunity to challenge the
actual costs or their constitutionality because no bill of costs was produced at the time of sentencing.
Appellant asserted that due process is thwarted if the clerk can simply create a list of court costs after
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the conviction.
Because there was no evidence in that record that the computer screen printout was presented
to the trial judge before the specific dollar amount was included in the judgment, the court of appeals
concluded that there was no evidence in the record to support the specific dollar amount in court
costs. Perez v. State, 2013 Tex. App. LEXIS 5121, No. 14-12-00893-CR (Tex. App.—Houston [14th
Dist.], memorandum opinion filed April 25, 2013)(not designated for publication). It also held that,
while the trial court did not err in ordering appellant to pay costs, the trial court erred in entering a
specific dollar amount of costs in the judgment without any record support. Id. Accordingly, the
court of appeals reformed the trial court’s judgment, deleted the specific amount of costs assessed,
and affirmed the judgment as modified. Id.
III. GROUNDS FOR REVIEW
We granted the state’s petition for discretionary review on four grounds: the court of appeals
erred in deleting
1) the specific amount of court costs on the judgment of conviction based upon the
lack of a certified bill of costs in the record;
2) court costs on the written judgment when appellant failed to preserve his claim for
appellate review, the issue is not ripe for review, and by implicitly overruling this
Court[’s] opinion in Manuel v. State which held that he must raise issues about the
sufficiency of the evidence in an appeal from the order deferring guilt;
3) the court costs on the written judgment when the district clerk’s office included
an itemized list of costs in the appellate record;
4) the court costs on the written judgment based upon the lack of a certified bill of
costs in the record when the evidence was otherwise sufficient to sustain the assessed
court costs.
IV. ARGUMENT
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The state argues that nothing in Texas statutes or the opinions of the Court of Criminal
Appeals required the district clerk to attach a certified bill of costs to the judgment in order to
support the amount or to show that the trial judge had access to his own court records when
determining and assessing the amount on a judgment. It adds that, “even were this Court to hold that
the mandatory assessment of court costs requires separate evidentiary support in the form of
available documentation, this record contained sufficient documentary evidence to support the costs
assessed.” The state also contends that appellant waived his sufficiency claim to at least $203 in
court costs when he did not raise it in an appeal from the order deferring guilt. It also maintains that
appellant’s claims regarding the mandatorily assessed costs were not preserved in the trial court and
were not ripe for review on appeal because no attempt to collect them had yet been made.
Appellant asserts that “[w]ithout a cost bill, there is insufficient evidence to support court
costs” and that “[t]he court costs should be struck because there is no evidence in the record to
support them.” He maintains that “[t]here is no evidence the trial court had the cost bill before the
costs were assessed on the judgment[,]” and notes that “the transcript from the hearing shows that
the trial court never even mentioned owing court costs.” He argues that “[t]he rules of appellate
procedure do not allow any objections to a particular cost to be made in the appellate court” and
suggests that “with no cost bill in the trial court, the only proper challenge is through the sufficiency
of the evidence.”
The state argues the first, third, and fourth grounds together. It asks this Court to sustain
those grounds and reverse the judgment of the court of appeals and reinstate the trial court’s
judgment in its entirety “because the record supports the costs assessed, and the trial court did not
err by failing to attach a bill of costs to the judgment.” It specifically contends that “the documentary
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evidence in the clerk’s record supported each mandatory fee and costs assessed because: (1) the
itemized cost bill provided sufficient evidence to support all the costs and fees; and (2) even had it
been insufficient the additional documents in the Court’s file supported them.” (State’s Brief on
Discretionary Review at 11.)
The state points to the laws regarding court costs, which state that a convicted person has a
statutory obligation to pay court costs. See TEX. CODE CRIM. PROC. art. 42.15 (when a fine is
assessed the judgment shall be that the defendant pay the amount of the fine and all costs to the state)
and art. 42.16 (judgments imposing punishments other than fines shall specify the costs against the
defendant and order the collection of those costs).1 The state also notes that Articles 103.001
through 103.012 govern the collection and disposition of costs. It also asserts that a defendant must
pay the statutorily assessed costs regardless of indigence. TEX. GOV’T CODE § 102.021 (a convicted
defendant “shall pay” the specified associated court costs).
Appellant argues that a bill of costs is a prerequisite to a trial court’s authority to order that
court costs be paid and that those court costs were not memorialized at the sentencing hearing. He
also asserts, “Not only is this information necessary–it is constitutionally required.” (Appellant’s
Brief on Petition for Discretionary Review at 13.) He maintains that the due-course-of-law provision
of the Texas Constitution and the due-process clause of the Federal Constitution preclude the
imposition of court costs without providing advance notice of those costs and that due process was
not afforded to him because he was not notified of the court costs and thus was never given the
opportunity to contest those costs.
1
Unless otherwise noted, all references to “Article” and “Section” are to the Texas Code of Criminal
Procedure.
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The state’s second ground for review asserts that the court of appeals erred by considering
an unpreserved claim that challenged the accuracy of the amount of assessed costs. The state also
asserts that the issue of the amount of court costs assessed was not ripe for review on appeal from
the judgment without appellant making some attempt in the trial court to correct them. It insists that
the judgment’s assessment does not make the costs payable, and therefore, appeal from that
judgment would not make the issue of the amount viable. It suggests that, to protest the amount
assessed, appellant must therefore pursue some other vehicle that would provide the trial court with
an opportunity to correct any inaccuracy. The state also asserts that appellant was required to make
any evidentiary challenges to the order deferring guilt with a timely appeal from that order, and since
he did not do so, he cannot tardily raise them for the first time in an appeal from the judgment
adjudicating him. It argues that Manuel v. State, 994 S.W.2d 658, 662 (Tex. Crim. App. 1999)
directs that Article 44.01(j) reflects a legislative intent that “was not to permit two reviews to the
legality of a deferred adjudication order, namely when first imposed and again upon adjudication.”
(State’s Brief on Discretionary Review at 45.)
Appellant asserts that Manuel does not apply and that the court of appeals correctly reasoned
that he did have the right to appeal the sufficiency of the court costs under Article 42.12 § 5(b). He
also suggests that this is especially true in light of the fact that he was not granted the right to appeal
from the order granting deferred adjudication.
V. ANALYSIS
In Johnson v. State, ___ S.W.3d ___, No. PD-0193-13 (Tex. Crim. App. delivered February
26, 2014), we held that “a claim with respect to the basis of court costs need not be preserved at trial
to be raised for the first time on appeal,” that “a record on appeal can be supplemented with a bill
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of costs,” and the fact that most court costs are mandated by statute dispenses with the need for an
ordinary sufficiency review. Nevertheless, we address the state’s preservation claims and consider,
in the circumstances before us, whether appellant needed to preserve error.
The record here reflects that the Order of Deferred Adjudication was signed and entered on
June 20, 2008, and included the assessment of $203 for court costs. The state’s Motion to
Adjudicate Guilt included an allegation that appellant violated the terms and conditions of
community supervision by failing to pay court costs. Appellant signed a Stipulation of Evidence that
included a paragraph in which he judicially confessed that he had violated the terms and conditions
and that the allegations in the state’s motion were true. Before the court, appellant answered “Yes”
when asked if it was true that he had violated the terms and conditions. The judgment adjudicating
guilt reflects that appellant was sentenced to two years’ incarceration, a $300 fine, and court costs
of $240.
“A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction.” Olivo v.
State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). Appellant failed to file notice of appeal within
thirty days of being placed on deferred-adjudication community supervision, thus this appeal raising
court-cost complaints is not timely with respect to the court costs that were assessed in the Order of
Deferred Adjudication.
In Wiley v. State, we held that a defendant, whose community supervision had been revoked,
forfeited his challenge to the court-appointed attorney fees as court costs by failing to bring such a
claim in a direct appeal from the order originally imposing community supervision. Wiley v. State,
410 S.W.3d 313, 318 (Tex. Crim. App. 2013). We pointed out that Wiley “could readily have raised
this sufficiency claim in a direct appeal from the initial judgment imposing community supervision”
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and failing to do so “constituted a procedural default under Manuel.” We noted that Manuel had
recognized that “a defendant placed on deferred adjudication community supervision may raise
issues relating to the original plea proceeding, such as evidentiary sufficiency, only in appeals taken
when deferred adjudication community supervision is first imposed.” Id. at 319, n.33.
We also observe that appellant specifically waived his right to appeal at that time. The record
reflects that, when appellant plead guilty and was placed on deferred-adjudication community
supervision, he waived his right to appeal. Specifically, appellant signed a Waiver of Constitutional
Rights, Agreement to Stipulate, and Judicial Confession, which included a paragraph in which he
“waive[d] any right of appeal which [he] may have [had],” and the trial court accepted the foregoing
plea agreement between him and the prosecutor. Appellant also signed an acknowledgment of
receipt of a copy of the Trial Court’s Certification of Defendant’s Right of Appeal, which denoted
that this “is a plea-bargain case, and the defendant has NO right of appeal.” These were all signed
on June 20, 2008, the same date that the Order of Deferred Adjudication was signed and entered.
That Order included the challenged assessment of court costs of $203. Thus appellant, at that time
of the original order, specifically waived his right to appeal the imposition of those court costs. As
we held in Manuel, supra, the time to raise such a complaint via appeal is when deferred-
adjudication community supervision was first imposed. “[A]n appellant will not be permitted to
raise on appeal from the revocation of his community supervision any claim that he could have
brought on an appeal from the original imposition of that community supervision.” Wiley, 410
S.W.3d at 319, citing Manuel, 994 S.W.2d at 661-62. Appellant’s waiver of his right to appeal does
not excuse his failure to appeal the assessment of court costs at the time of the original imposition
of community supervision.
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The court of appeals acknowledged Manuel’s holding, but noted that, after we decided
Manuel, an amendment to Article 42.12 § 5(b) permitted appellate review of the trial court’s
determination to proceed with an adjudication of guilt. It determined that appellant was “appealing
the judgment adjudicating his guilt” rather than “challenging the assessment of costs in the original
deferred adjudication order[,]” and was “challenging the evidence to support the specific dollar
amount listed in the judgment adjudicating his guilt.” Perez v. State, 2013 Tex. App. LEXIS 5121
at *4. The record does not support this conclusion.2
Court costs of $203 were included in the Order of Deferred Adjudication. Thus appellant
could have appealed the imposition of such costs or the specific amount of those costs. Any and all
complaints about the imposition of the court costs could and should have been made in a timely
appeal of the deferred-adjudication order. “Failing to do so, we hold, constituted a procedural
default under Manuel.” Wiley, 410 S.W.3d at 320. Appellant did timely appeal the $240 court costs,
which were noted in the judgment adjudicating guilt and included the $203 that had been initially
assessed in the deferred-adjudication order. Since appellant failed to challenge the $203 assessment
of costs in a timely appeal of that deferred adjudication order and thus forfeited any appellate
complaint as to that sum, the instant, timely, appeal properly challenges only the $37 of court costs
that were added to the initial $203. Thus the court of appeals had jurisdiction to address only $37
of appellant’s challenge to the assessment of $240 in court costs.
VI. CONCLUSION
A defendant must raise issues relating to the original plea proceeding, including evidentiary
2
“In a single issue on appeal, appellant contends that there is insufficient evidence in the record to support
the court costs assessed against him in the judgment.” Perez v. State, 2013 Tex. App. LEXIS 5121 at *1.
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sufficiency, only in a timely appeal taken when deferred-adjudication community supervision is first
imposed. Manuel, 994 S.W.2d at 661-62. Court costs of $203 were included in appellant’s
deferred-adjudication order, and appellant failed to appeal those costs at that time. Accordingly, we
sustain the state’s ground 2, in part; we reverse the judgment of the court of appeals and dismiss
appellant’s appeal with respect to $203 of the $240 of court costs.
The court of appeals does have jurisdiction to consider the appeal of the remaining $37 of
the assessed court costs. In Johnson v. State, supra, we held that “a record on appeal can be
supplemented with a bill of costs,” and the fact that most court costs are mandated by statute
dispenses with the need for an ordinary sufficiency review. Because the court of appeals did not
have the benefit of Johnson when it addressed appellant’s claims challenging the court-costs
assessment, we dismiss the state’s grounds one, three, and four and remand to the court of appeals
to reconsider appellant’s claims regarding the assessment of court costs in light of Johnson.
Delivered: March 12, 2014
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