Ronie Wayne Smith v. State

Opinion issued June 30, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00485-CR
———————————
RONIE WAYNE SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Case No. 1276338
OPINION
A jury convicted appellant Ronie Wayne Smith of aggravated sexual assault
of a child less than 14 years old. See TEX. PENAL CODE ANN. § 22.021 (West
2011). The trial court determined punishment, sentencing Smith to 25 years in
prison. The judgment also reflects $484.00 in statutory court costs. On appeal,
Smith argues that the trial court erred by permitting the State to question him about
a misdemeanor conviction for indecent exposure that was more than 10 years old.
He also challenges the sufficiency of the evidence to support the assessment of
$484.00 in statutory court costs. We affirm, as modified to correct the spelling of
Smith’s name and the assessment of mandatory statutory costs of court supported
by the record.
Background
The indictment in this case alleged that Ronie Wayne Smith unlawfully,
intentionally, and knowingly caused the sexual organ of the 13-year-old female
complainant to contact his own sexual organ. The evidence showed that late one
night after buying a snack at a convenience store, the complainant encountered
Smith. She saw him before she climbed over a fence on her way to an apartment
complex. Smith held her bag as she climbed over the fence. Once she was on the
other side, he returned the bag and then began touching her breasts and genitals
over her clothing. The complainant cried, kicked, and screamed for him to stop, but
he grabbed her, forced her to the ground, and raped her. The complainant then
returned to the apartment where she was staying. She testified that the assault was
painful and that she bled for several days afterward.
2
The complainant did not immediately report the assault. More than a week
later, she told her teacher about the rape, and the teacher referred her to a school
counselor. The counselor spoke with her, called her mother, and reported the
outcry to the police. Houston Police Department Officer F. Medina met with the
complainant and her family at their home. At first she was embarrassed to speak
with him in front of her family, but when he pulled her aside, she was “extremely
detailed” in describing the assault. She described the attacker’s clothing, and she
noted that “he had several marks on his face,” “very bad teeth,” and “one of his
toenails was missing.” She told Officer Medina that she would be able to recognize
him.
Officer Medina contacted the counselor, who “basically gave the same
statement but in less detail” as had the complainant. The complainant’s parents
took her to Texas Children’s Hospital where she underwent a sexual assault
examination, which revealed internal and external abrasions in her genital area that
were consistent with her outcry. However, because of the passage of time since the
assault, no DNA evidence was collected.
The day after the complainant’s outcry, her family members told her that
they thought they knew the identity of her attacker and that they had seen him near
the place where the assault occurred. They drove her to the location, where she saw
3
Smith and identified him as the man who raped her. When she left with her mother
to call the police, several of her relatives attacked Smith in retaliation for the rape.
H.P.D. Sergeant D. Schlosser was on patrol when he was dispatched to the
scene of the assault on Smith. He described the scene as “tremendously chaotic”
with people “yelling, screaming, [and] hollering” “various things,” including “he’s
a rapist.” Sgt. Schlosser testified that the complainant and her mother were present
and that he understood the crowd to consist of her friends and family. Smith was
sitting in front of a house, and he was injured and bleeding. Sgt. Schlosser accessed
a copy of the police report regarding the sexual assault, which included the
complainant’s detailed description. Sgt. Schlosser asked Smith to remove his
shoes, and he observed that Smith’s feet were “very unkempt,” had a “very putrid,
pungent smell,” and “the pinky toes almost appeared as though they didn’t have a
toenail.” Suspecting that Smith was the alleged assailant, Sgt. Schlosser contacted
the Juvenile Sex Crimes investigators while Smith was treated by a Houston Fire
Department ambulance crew. 1
1
While in the ambulance, Smith asked to speak to a police officer. When Sgt.
Schlosser approached him, Smith blurted out, “Just go ahead and give me the
case.” Sgt. Schlosser asked him what he meant, and Smith replied, “Just go ahead
and give me the case because if I stay out here they’re going to kill me.” Sgt.
Schlosser then read Smith his Miranda rights, contacted the Juvenile Sex Crimes
sergeant, and assigned an officer to accompany Smith to the hospital to ensure that
he would not escape.
4
H.P.D. Officer E. Hanson with the Juvenile Sex Crimes Division followed
up with the complainant and her mother. She also prepared a photographic lineup
from which the complainant identified Smith. In addition, the complainant gave a
statement that was consistent with what she had previously told other officers.
Officer Hanson interviewed Smith, who waived his rights to remain silent
and to an attorney and gave a recorded statement. In the statement, he initially
denied having come into contact with the complainant, but when Officer Hanson
mentioned the possible existence of DNA evidence, Smith said he had helped her
with her bag.
Prior to trial, the State filed a notice of its intent to use evidence of Smith’s
29 prior convictions, ranging in date from January 1994 through January 2010. The
offenses included: 10 convictions for criminal trespass; three convictions for
terroristic threat; three convictions for theft crimes; three convictions for
possession of a controlled substance; two convictions for unlawfully carrying a
weapon; and one conviction each for assault, indecent exposure, evading detention,
evading arrest, resisting arrest, criminal mischief, delivery of a controlled
substance, and public intoxication.
Trial was held in May 2012. The complainant, the police officers, and the
sexual assault nurse examiner all testified. The nurse recounted what the
complainant had told the doctor when she was seen at the hospital, and this
5
recollection was consistent with the complainant’s own trial testimony. The nurse
testified that there was physical evidence of sexual trauma, but on cross-
examination she conceded that she could not determine if it was caused by
consensual or nonconsensual sexual intercourse.
Before Smith testified, the court held a hearing outside the presence of the
jury to determine which of his prior convictions would be admissible for
impeachment. The State sought to introduce for the purpose of impeachment all of
Smith’s felony offenses from the 10 years prior to trial (two felony convictions for
possession of a controlled substance, a felony conviction for theft as a third
offender, a felony conviction for theft from a person, and a felony conviction for
delivery of a controlled substance) and two convictions from more than 10 years
prior to trial (felony theft from a person in 2001 and misdemeanor indecent
exposure in 1999). Smith did not oppose the use of the 2001 conviction for theft
from a person or the felony convictions that were within the 10-year time frame.
However, he objected to the admission of the 1999 misdemeanor conviction
for indecent exposure. The State characterized that offense as a crime of moral
turpitude that was “highly relevant” to this case. Smith’s attorney argued:
I believe it’s highly prejudicial. I mean, it’s over ten years old.
Just the fact, you know, the nature of the description of the offense is
prejudicial. It—and, like I say, Judge, it’s over ten years old and my
understanding—I should have researched this and given it to the
Court, but my understanding is that the tacking laws are in doubt. I
6
would argue that they don’t apply and it should be inadmissible under
the Rules of Evidence as improper impeachment.
....
The indecent exposure we’re talking about is 13 years ago. It’s
a misdemeanor, and I don’t know if that’s a crime of moral turpitude.
....
But even so, Judge, we’re talking about a 13-year-old
misdemeanor and just the description, considering the fact that my
client’s charged . . . with aggravated sexual assault of a child, I think
it’s going to carry a lot more—it’s going to be very prejudicial and I
don’t—I just—because of the description and what’s called . . . any
relevance is going to be outweighed by the prejudicial effect it will
have on the jury.
The State argued that the 1999 conviction was admissible despite its
remoteness because Smith had been convicted of additional crimes every year
thereafter in which he was not in custody. The court ruled that the felony theft
convictions were admissible but the felony drug convictions were not. The court
further ruled: “With regard to the 1999 indecent exposure, in weighing whether or
not the probative value of admitting the evidence outweighs its prejudicial effect,
this Court finds that the probative value does outweigh its prejudicial effect and is,
therefore, admissible.”
Smith then testified, and he repeatedly denied raping, fondling, or assaulting
the complainant in any way, saying, “She might have been raped, but I know it
wasn’t me that raped her. She might have the wrong person.” He initially denied
7
having seen the complainant prior to trial, but on cross-examination, he admitted
that he held her bag on the night of the assault.
The State also asked Smith about his prior felony convictions for theft as a
third offender, theft from a person (twice), and delivery of a controlled substance.
As to the indecent exposure conviction, the State asked only:
Q. And then you were convicted of indecent exposure in 1999, but
that one was a misdemeanor, correct?
A. Yes.
Q. That’s a crime of moral turpitude. Do you know what that
means?
A. No, ma’am.
Closing arguments centered on the credibility of the complainant and Smith.
The prosecutor repeatedly said, “the truth doesn’t change,” as she contrasted the
consistent statements made by the complainant to police officers, medical
professionals, and her school counselor, with the inconsistencies in Smith’s
testimony, for example whether he had seen the complainant on the night of the
assault. The prosecutor also urged the jurors, in assessing the complainant’s
credibility, to reflect on her demeanor while testifying, the physical evidence of
sexual trauma, and the detailed description she gave of her assailant which closely
matched Smith. The State did not mention Smith’s prior conviction for indecent
exposure in closing argument. Smith’s attorney also focused on the credibility of
8
the witnesses, arguing, “[s]ometimes complaining witnesses lie,” and suggesting
that the complainant could have had “consensual sex with another boy” and
“needed to pin it on somebody.”
The jury returned a guilty verdict, the trial court assessed punishment, and
Smith appealed.
Analysis
I. Admissibility of prior conviction for indecent exposure
In his first two issues, Smith contends that the trial court erred by admitting
evidence of his 1999 conviction for indecent exposure during the guilt-or-
innocence phase of trial, because doing so violated Rules of Evidence 403 and 609.
Smith argues on appeal that the probative value of his conviction for indecent
exposure does not outweigh its prejudicial effect, the conviction was too remote,
the impeachment value was minimal, and the nature of the prior conviction and its
similarity to the charged offense created a risk that the jury would consider it as
character conformity evidence. We review a trial court’s admission of extraneous
offense evidence under an abuse of discretion standard. De La Paz v. State, 279
S.W.3d 336, 343 (Tex. Crim. App. 2009). “As long as the trial court’s ruling is
within the ‘zone of reasonable disagreement,’ there is no abuse of discretion, and
the trial court’s ruling will be upheld.” Id. at 343–44 (quoting Montgomery v. State,
810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (on rehearing)).
9
When a defendant testifies at trial, he is subject to cross examination in the
same manner as any other witness. Bowley v. State, 310 S.W.3d 431, 434 (Tex.
Crim. App. 2010). Rule 609 of the Texas Rules of Evidence provides that evidence
of a witness’s prior conviction of a felony or crime of moral turpitude shall be
admitted for purposes of impeachment if the court determines that the probative
value of admitting the conviction outweighs its prejudicial effect. TEX. R. EVID.
609(a); Morris v. State, 67 S.W.3d 257, 263 (Tex. App.—Houston [1st Dist.] 2001,
pet. ref’d). The court must balance probative value and prejudice by considering
(1) the prior conviction’s impeachment value; (2) its temporal proximity to the
crime on trial, and the defendant’s subsequent criminal history; (3) the similarity
between the prior offense and the present offense; (4) the importance of the
defendant’s testimony; and (5) the importance of the credibility issue. Theus v.
State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992); see Hernandez v. State, 976
S.W.2d 753, 755 (Tex. App.—Houston [1st Dist.]), pet. ref’d, 980 S.W.2d 652
(Tex. Crim. App. 1998).
However, when the conviction is more than 10 years old, Rule 609(b)
requires the court to conduct a different analysis. Hernandez, 976 S.W.2d at 755.
In such a situation, before a court may admit such evidence, it must determine that
“the probative value of the conviction supported by specific facts and
circumstances substantially outweighs its prejudicial effect.” TEX. R. EVID. 609(b).
10
This ten-year period is measured from the date of trial in which the prior
conviction is to be offered as evidence, rather than the date of the charged offense,
because the evidence is relevant under Rule 609, if at all, to show whether the
defendant is credible at trial. See Davis v. State, 545 S.W.2d 147, 150 (Tex. Crim.
App. 1976). Ordinarily, “[r]emote convictions are inadmissible because of a
presumption that one is capable of rehabilitation and that his character has
reformed over a period of law abiding conduct.” Morris, 67 S.W.3d at 263. But
subsequent convictions for felonies or misdemeanors involving moral turpitude can
“remove the taint of remoteness from the prior convictions” by showing a lack of
reformation. Id. (citing Hernandez, 976 S.W.2d at 755). In that situation, we
balance the probative value and prejudicial effect of the prior conviction under
Rule 609(a)’s “outweigh” standard—instead of Rule 609(b)’s “substantially
outweigh” standard—because “the ‘tacking’ of the intervening convictions renders
convictions more than 10 years old no longer remote.” Id.
Smith was convicted of the misdemeanor offense of indecent exposure in
1999. After that conviction, Smith was convicted of the felony offenses of theft
from a person in 2001, delivery of a controlled substance in 2003, theft from a
person in 2005, possession of a controlled substance in 2006, theft as a third
offense in 2008, and possession of a controlled substance in 2009. These repeated
felony convictions demonstrate Smith’s lack of reformation and remove the taint of
11
remoteness from his indecent exposure conviction. See Morris, 67 S.W.3d at 263.
Accordingly, we will apply the Rule 609(a) standard to determine if the trial court
erred in admitting evidence of this prior conviction. See id.
We begin by considering the first Theus factor: the impeachment value of
the prior conviction. See Theus, 845 S.W.2d at 880. Indecent exposure is a crime of
moral turpitude. See Tristan v. State, 393 S.W.3d 806, 812–13 (Tex. App.—
Houston [1st Dist.] 2012, no pet.) (citing Polk v. State, 865 S.W.2d 627, 630 (Tex.
App.—Fort Worth 1993, pet. ref’d)). Crimes of moral turpitude involve a “grave
infringement of the moral sentiment of the community,” Hardeman v. State, 868
S.W.2d 404, 405 (Tex. App.—Austin 1993, pet. dism’d) (quoting BLACK’S LAW
DICTIONARY 1008–09 (6th ed. 1990)), or show “a moral indifference to the opinion
of the good and respectable members of the community.” Escobedo v. State, 202
S.W.3d 844, 848 (Tex. App.—Waco 2006, pet. ref’d). “Offenses involving moral
turpitude carry a higher impeachment value.” Martin v. State, 265 S.W.3d 435, 444
(Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Theus, 845 S.W.2d at 881);
see also Moreno v. State, 22 S.W.3d 482, 488 (Tex. Crim. App. 1999). As Smith
has conceded, this factor weighs in favor of admissibility.
The second Theus factor is the temporal proximity of the crime to trial and
the defendant’s subsequent criminal history. Theus, 845 S.W.2d at 880. As we
have explained, although this prior conviction is outside the 10-year period
12
established by Rule 609, Smith’s many subsequent convictions show a lack of
reformation, weighing in favor of admission. See Rodriguez v. State, 129 S.W.3d
551, 560 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (holding that the second
Theus factor weighed in favor of admissibility of prior convictions that were more
than ten years old because defendant’s criminal history showed “a propensity for,
and a history of, running afoul of the law”).
The third Theus factor is the similarity between the prior offense and the
present offense. Theus, 845 S.W.2d at 880. Smith argues that indecent exposure
and aggravated sexual assault of a child are such similar offenses that the
admission of evidence of the indecent exposure conviction would cause the jury to
regard him as a “sexual deviant” who would be more likely to be guilty of
aggravated sexual assault of a child, and therefore this element weighs against
admissibility. In Theus, the Court held that this factor weighs against admission if
the prior conviction and the charged offense are similar because “admission for
impeachment purposes of a crime similar to the crime charged presents a situation
where the jury would convict on the perception of a past pattern of conduct, instead
of on the facts of the charged offense.” Id. at 881. In this case, however, we
disagree with Smith’s contention that indecent exposure is so similar to aggravated
sexual assault of a child as to create a risk that the jury would convict on an
improper basis.
13
Indecent exposure is a “sexual offense,” found in Chapter 21 of the Texas
Penal Code, which requires for its commission that a person expose “his anus or
any part of his genitals with intent to arouse or gratify the sexual desire of any
person, and he is reckless about whether another is present who will be offended or
alarmed by his act.” TEX. PENAL CODE ANN. § 21.08 (West 2011). Aggravated
sexual assault of a child is an “assaultive offense,” found in Chapter 22 of the
Texas Penal Code, which requires for its commission that the actor intentionally or
knowingly cause contact or penetration involving the sexual organ of the actor or
the child or both. Id. § 22.021(a)(1)(B). It also requires an aggravating element
such as causing serious bodily injury; placing the victim in fear of death, serious
bodily injury, or kidnapping of the victim or others; using or exhibiting a deadly
weapon; or that the victim is a child younger than 14 or an elderly or disabled
individual. See id. § 22.021(a)(2).
Intent to gratify a sexual desire is not an element of aggravated sexual
assault of a child; and neither contact nor penetration is an element of indecent
exposure. Compare id. § 21.08, with id. § 22.021. While identity of the person to
whom the indecent exposure is directed is not an element of that offense, see
Wallace v. State, 550 S.W.2d 89, 91 (Tex. Crim. App. 1977), the victim’s
characteristic of being a child is an essential element of the offense of aggravated
sexual assault of a child. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B). In short,
14
indecent exposure is a crime of depravity, see Polk, 865 S.W.2d at 630, whereas
aggravated sexual assault of a child is a crime of violence. See Wisdom v. State,
708 S.W.2d 840, 842–43 (Tex. Crim. App. 1986). Although both crimes involve
sexual elements, they are not so similar as to weigh in favor of exclusion of the
indecent exposure conviction.
Finally, we consider the related fourth and fifth Theus factors: the
importance of the defendant’s testimony and the importance of the credibility
issue. These two factors are related because “both depend on the nature of a
defendant’s defense and the means available to him of proving that defense.”
Theus, 845 S.W.2d at 881. Here, Smith had no alibi witness, and his defensive
theories appeared to be mistaken identity and that the complainant was lying. For
example, Smith testified, “She might have been raped, but I know it wasn’t me that
raped her. She might have the wrong person.” In closing, Smith’s attorney argued,
“Sometimes complaining witnesses lie.” There were no eyewitnesses, no
surveillance videos, and no DNA test results in this case. At trial the only other
defense witness was a nephew, who testified that he did not know anything about
Smith’s whereabouts at the time the complainant was assaulted. Aside from the
nephew’s testimony, the evidence in this case consisted of Smith’s testimony and
the testimony of the State’s witnesses. Thus the importance of his testimony and
credibility were heightened. See id. “As the importance of the defendant’s
15
credibility escalates, so will the need to allow the State an opportunity to impeach
the defendant’s credibility.” Id. These elements weigh in favor of admission of the
prior conviction for indecent exposure.
Having found that the Theus factors weigh in favor of admissibility, we
conclude that the trial court reasonably could have concluded that the probabtive
value of admitting evidence that Smith was previously convicted of indecent
exposure outweighs its prejudicial effect. See TEX. R. EVID. 609(a). We therefore
hold that the trial court did not err by admitting the evidence, and we overrule
Smith’s first issue.
Smith’s second issue argues that the court abused its discretion by admitting
the very same evidence of his prior conviction for indecent exposure because doing
so violated Rule of Evidence 403, which provides that relevant evidence may be
excluded “if its probative value is substantially outweighed by the danger of unfair
prejudice . . . .” TEX. R. EVID. 403. We have already explained the probative value
of the evidence in regard to impeachment in this case, in which the evidence
consisted of only Smith’s testimony and that of the State’s witnesses. However,
under our Rule 609 analysis, we concluded that the probative value of the evidence
was greater than its prejudicial effect. Having so concluded, we cannot find that the
risk of unfair prejudice was substantially greater than the probative value. It is not.
As we have said, the probative value of the evidence is greater than the prejudicial
16
effect. We therefore overrule Smith’s second issue. Compare TEX. R. EVID. 403,
with TEX. R. EVID. 609.
II. Court costs
In his third issue, Smith argues that the evidence is insufficient to support
the assessment of court costs. The trial judge signed a judgment that assessed
$484.00 in court costs. A supplemental clerk’s record was filed in this case. It
indicated that the court held a hearing sua sponte and ordered that a judgment nunc
pro tunc be entered to increase the amount of court costs assessed. The spelling of
Smith’s first name was also changed from the incorrect spelling of “Ronnie” to the
correct spelling, “Ronie.”
Smith filed several objections to the supplemental clerk’s record. However,
having reviewed the record on appeal, we have identified an independent reason
why we must disregard the judgment nunc pro tunc entered in this case: the trial
court lacked jurisdiction to enter it at the time it purported to do so. In criminal
cases, “Once the record has been filed in the appellate court, all further
proceedings in the trial court—except as provided otherwise by law or by these
rules—will be suspended until the trial court receives the appellate-court mandate.”
TEX. R. APP. P. 25.2(g). Nunc pro tunc proceedings in criminal cases are governed
by Rule 23 of the Texas Rules of Appellate Procedure. “Unless . . . the defendant
17
has appealed, a failure to render judgment and pronounce sentence may be
corrected at any time by the court’s doing so.” TEX. R. APP. P. 23.1.
In this case, the judgment was originally rendered in open court on May 10,
2012, and a written judgment was entered on the same date. Smith also filed a
notice of appeal on May 10, 2012. The clerk’s record was filed in this court on July
9, 2012, and the reporter’s record was filed on September 8 and September 10,
2012. The purported nunc pro tunc judgment was entered in February 2013. This
was after Smith had appealed, see id., and after the record had been filed in the
appellate court. See TEX. R. APP. P. 25.2(g). Accordingly, we hold that the trial
court had no jurisdiction to enter a nunc pro tunc judgment in February 2013. See
TEX. R. APP. P. 23.1, 25.2(g); see Green v. State, 906 S.W.2d 937, 939 (Tex. Crim.
App. 1995) (“[O]nce the trial record has been filed with the Court of Appeals or
this Court, the trial court no longer has jurisdiction to adjudicate the case.”); State
v. Gutierrez, 143 S.W.3d 829, 831 (Tex. App.—Corpus Christi 2004, no pet.)
(“The filing of the appellate record . . . severs the trial court’s jurisdiction to
adjudicate the case.”); cf. Meineke v. State, 171 S.W.3d 551, 558 (Tex. App.—
Houston [14th Dist.] 2005, pet. ref’d) (holding that filing of notice of appeal did
not deprive trial court of jurisdiction when appellate record had not yet been filed);
Ware v. State, 62 S.W.3d 344, 353–54 (Tex. App.—Fort Worth 2001, pet. ref’d)
18
(holding that entry of nunc pro tunc judgment was not untimely when entered after
filing of notice of appeal and before filing of appellate record in court of appeals).
Having determined that the purported nunc pro tunc judgment was entered
without jurisdiction to do so, we will not rely upon that document or any other part
of the supplemental record to decide this appeal. Moreover, we note that Smith
appealed only from the May 2012 judgment, which we now consider.
Smith argues that the evidence is insufficient to support the judgment against
him assessing court costs in the amount of $484.00. He first argues that the record
is silent as to the amount of costs owed because there is no certified bill of costs in
the record and that assessment of court costs in the absence of a bill of costs
violates his right to due process. The Court of Criminal Appeals has rejected these
arguments. See Johnson v. State, 423 S.W.3d 385, 392–96 (Tex. Crim. App. 2014).
In addition, he argues that there is no way to determine whether any attorney fees
were included in the assessment of costs. We disagree with this proposition
because the amount of costs is governed by statute, as to which the defendant is
charged with constructive notice. See id. at 389.
The State, for its part, argues that the assessment of $484.00 is supported by
the record and by law and, indeed, under mandatory court-cost statutes and the
facts of this case, the trial court should have assessed costs in the amount of
$574.00. The State also argues that the court costs are not ripe for review before an
19
attempt is made to collect them; that argument has also been rejected by the Court
of Criminal Appeals. See id. at 391.
“[W]e review the assessment of court costs on appeal to determine if there is
a basis for the cost, not to determine if there was sufficient evidence offered at trial
to prove each cost.” Id. at 390. A defendant convicted of a felony offense must pay
certain statutorily mandated costs and fees. See id. at 394. These fees vary
depending on the type of offense and procedural history of the case. See Owen v.
State, 352 S.W.3d 542, 546 n.5 (Tex. App.—Amarillo 2011, no pet.) (providing an
extensive list of Texas statutes requiring convicted persons to pay costs and fees).
The record demonstrates that Smith was convicted of a felony in district court,
supporting each of the following costs:
(1) $250 DNA record fee that is mandated for someone convicted
of aggravated sexual assault; 2
(2) $133 consolidated court cost for conviction of a felony; 3
(3) $5.00 for summoning a witness, incurred 11 times for a cost of
$55.00; 4
2
TEX. CODE CRIM. PROC. ANN. art. 102.020(a)(1) (West Supp. 2013) (“$250
on conviction of an offense listed in Section 411.1471(a)(1), Government
Code,” including aggravated sexual assault).
3
TEX. LOC. GOV’T CODE ANN. § 133.102(a)(1) (West Supp. 2013) (“A person
convicted of an offense shall pay as a court cost, in addition to all other
costs . . . $133 on conviction of a felony.”).
20
(4) $40.00 to the clerk’s office; 5
(5) $25.00 district court records preservation fee; 6
(6) $20.00 additional jury fee; 7
(7) $6.00 for support for the judiciary; 8
(8) $5.00 for making an arrest without a warrant;9
(9) $5.00 as a commitment fee;10
4
TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(3) (West Supp. 2013) (“A
defendant convicted of a felony or a misdemeanor shall pay the following
fees for services performed in the case by a peace officer . . . $5 for
summoning a witness.”).
5
Id. art. 102.005(a) (West 2006) (“A defendant convicted of an offense in a
county court, a county court at law, or a district court shall pay for the
services of the clerk of the court a fee of $40.”).
6
Id. art. 102.005(f) (“A defendant convicted of an offense in a . . . district
court shall pay a fee of $25 for records management and preservation
services performed by the county as required by Chapter 203, Local
Government Code.”).
7
Id. art. 102.004(a) (“A defendant convicted by a jury in a . . . district court
shall pay a jury fee of $20.”).
8
TEX. LOC. GOV’T CODE ANN. § 133.105(a) (West 2008) (“A person
convicted of any offense, other than an offense relating to a pedestrian or the
parking of a motor vehicle, shall pay as a court cost, in addition to all other
costs, a fee of $6 to be used for court-related purposes for the support of the
judiciary.”).
9
TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(1) (“$5 for . . . making an
arrest without a warrant”).
21
(10) $5.00 as a release fee on each case including release to the
Texas Department of Criminal Justice; 11
(11) $5.00 security fee; 12
(12) $5.00 jury summons fee; 13
(13) $4.00 jury reimbursement fee; 14
(14) $4.00 for the court technology fund; 15
(15) $2.00 for support of indigent defense. 16
10
Id. art. 102.011(a)(6) (“A defendant convicted of a felony or a misdemeanor
shall pay the following fees for services performed in the case by a peace
officer . . . $5 for commitment or release”).
11
Id.
12
Id. art. 102.017(a) (West Supp. 2013) (“A defendant convicted of a felony
offense in a district court shall pay a $5 security fee as a cost of court.”).
13
Id. art. 102.011(a)(7) (“$5 for summoning a jury, if a jury is summoned”).
14
Id. art. 102.0045(a) (“A person convicted of any offense, other than an
offense relating to a pedestrian or the parking of a motor vehicle, shall pay
as a court cost, in addition to all other costs, a fee of $4 to be used to
reimburse counties for the cost of juror services as provided by Section
61.0015, Government Code.”).
15
Id. art. 102.0169(a) (“A defendant convicted of a criminal offense in a . . .
district court shall pay a $4 county and district court technology fee as a cost
of court.”).
16
TEX. LOC. GOV’T. CODE ANN. § 133.107(a) (West Supp. 2013) (“A person
convicted of any offense, other than an offense relating to a pedestrian or the
parking of a motor vehicle, shall pay as a court cost, in addition to other
costs, a fee of $2 to be used to fund indigent defense representation through
22
These fees total $564.00:
$250.00 (DNA record fee)
$133.00 (consolidated court cost for conviction of a felony)
$55.00 (summoning witnesses fee)
$40.00 (clerk’s office fee)
$25.00 (district court records preservation fee)
$20.00 (additional jury fee)
$6.00 (support for the judiciary fee)
$5.00 (commitment fee)
$5.00 (making arrest without a warrant)
$5.00 (release fee)
$5.00 (security fee)
$5.00 (jury summons fee)
$4.00 (jury reimbursement fee)
$4.00 (court technology fund)
$2.00 (support of indigent defense fee)
$ 564.00
The trial court assessed costs in the amount of $484.00. The record shows a
basis for assessing costs in at least that amount, not including any assessment for
attorney’s fees. We overrule Smith’s third issue. See Johnson, 423 S.W.3d at 389,
396.
III. Reformation of the judgment
“[A]n appellate court has authority to reform a judgment to include an
affirmative finding to make the record speak the truth when the matter has been
called to its attention by any source.” French v. State, 830 S.W.2d 607, 609 (Tex.
the fair defense account established under Section 79.031, Government
Code.”).
23
Crim. App. 1992) (citing Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.—
Dallas 1991, pet. ref’d)); accord Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—
Houston [1st Dist.] 2001, no pet.) (holding that an appellate court has the power to
correct and reform a trial judgment to make the record speak the truth when it has
the necessary data and information to do so); see also TEX. R. APP. P. 43.2(b).
We note that the trial court’s May 2012 judgment does not accurately
comport with the record in that it misspells Smith’s first name as “Ronnie” not
“Ronie.” The record on appeal demonstrates that Smith’s first name is spelled with
only one “n.” The record supports modification of the judgment with regard to the
spelling of Smith’s first name, and accordingly, the trial court’s judgment is
modified to reflect that Smith’s first name is “Ronie” not “Ronnie.”
Finally, the State in its brief has requested that we reform the judgment to
assess the full measure of mandatory costs applicable upon conviction. Just as an
appellant in a criminal case has a statutory remedy to correct erroneous or
unsupportable costs, separate and apart from directly appealing the judgment of
conviction,17 the Code of Criminal Procedure also contemplates that the State may
17
See TEX. CODE CRIM. PROC. ANN. art. 103.008; Johnson v. State, 423
S.W.3d 385, 392 (Tex. Crim. App. 2014).
24
revisit the amount of costs due by filing an appropriate motion in the trial court.18
Thus, to the extent the State seeks to collect court costs in excess of those already
assessed in the judgment, filing a motion in the trial court ordinarily would be
preferable to presenting such a request to the appellate court on direct appeal.
However, in light of the fact that we have already reviewed the record concerning
court costs in conjunction with our resolution of Smith’s challenge to those costs in
this appeal, it would not serve judicial efficiency to require the State to relitigate
that issue in a separate proceeding. As detailed above, we have determined that the
applicable mandatory statutory costs identified by the State amount to be $564.00,
and we will modify the judgment in this case to so reflect.
18
See TEX. CODE CRIM. PROC. ANN. art. 103.007 (“After a defendant has paid
costs, no more costs may be charged against the defendant unless the court
rules on a motion presented to the court that additional costs are due.”
(emphasis supplied)).
25
Conclusion
We modify the original judgment dated May 10, 2012 to reflect the correct
spelling of Smith’s first name and mandatory statutory costs of court in the amount
of $564.00, and as modified, we affirm.
Michael Massengale
Justice
Panel consists of Chief Justice Radack and Justices Massengale and Huddle.
Publish. TEX. R. APP. P. 47.2(b).
26