Louis Douglas Rogers v. State

Affirmed as Modified and Opinion filed June 6, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00182-CR
LOUIS DOUGLAS ROGERS, Appellant,
V.
THE STATE OF TEXAS, Appellee.
On Appeal from the 262nd District Court
Harris County
Trial Court Cause No. 1306523
OPINION
A jury found appellant Louis Douglas Rogers guilty of murder and assessed
his punishment at ninety-nine years’ confinement. On appeal, Rogers raises four
issues: (1) the prosecutor’s alleged presentation of false testimony by two
witnesses violated ethical duties and Rogers’s fundamental due-process rights; (2)
an officer’s testimony concerning the credibility of one of the witnesses violated
due process and fundamental fairness; (3) the photo array used for the out-of-court
identification of Rogers was impermissibly suggestive; and (4) no evidence
supports the judgment against Rogers for court costs. We modify the judgment to
delete the court costs and affirm the judgment as modified.
I
Rogers’s girlfriend, Ketural LeBlanc, lived at the Walnut Bend apartment
complex and shared her apartment with Rogers. On the morning of May 15, 2011,
eighteen-year-old Shan Davis, the complainant, was playing with a basketball at
the complex when LeBlanc walked by and recognized the ball as one she had
given to the children of a friend, Marquita Boston. LeBlanc asked Davis why he
had the ball, and Davis cursed at her. LeBlanc continued on her way to visit
Boston, who also lived in the complex.
At trial, LeBlanc testified that Rogers joined her at Boston’s apartment about
ten minutes after she arrived. Rogers was wearing a white t-shirt, red shorts, and
red shoes. LeBlanc told Rogers that Davis had cursed at her. Rogers went outside
and confronted Davis. After about five minutes, Rogers returned, took LeBlanc’s
apartment key from around her neck, and went to LeBlanc’s apartment. LeBlanc
followed Rogers and, once inside, LeBlanc told Rogers to calm down, but he
pushed her out of the way and left.
LeBlanc then returned to Boston’s apartment so that she could take Boston’s
children to play with her son while Boston went to the store. LeBlanc and Boston
left Boston’s apartment with the children, and as they neared one of the apartment
gates they heard multiple gunshots. Davis had been shot nine times in the head,
neck, and torso, and died at the scene. Frightened by the gunshots, LeBlanc and
Boston “just ran.” Police arrived a short time later. LeBlanc was questioned by
detectives at her apartment and again at the police station.1
1
LeBlanc’s interview at the station was recorded, and portions of it were played for the
jury. LeBlanc’s recorded statement appears to conflict with her trial testimony.
2
At trial, LeBlanc denied or could not recall telling the detectives that Rogers
confronted Davis or that Rogers shot Davis. LeBlanc did testify, however, that
while the detectives were at her apartment she showed them where Rogers hid a
gun under the dishwasher, but the gun was not there.2 Shortly after she was
interviewed, LeBlanc left town because she feared retribution from Davis’s family.
Boston’s testimony differed in some respects from LeBlanc’s. Boston
testified that after Rogers and LeBlanc left her apartment the first time, they
returned together about five minutes later, and both seemed nervous and anxious.
Rogers appeared upset and told the women they needed to leave, and so they left.3
On the way out, Boston saw Rogers and Davis standing near each other. Boston
testified that Rogers and Davis were the only people in the area at that time.
Boston continued to the store, and as she turned a corner she could no longer
see the two men. When she heard the gunshots, however, Boston turned back and
ran toward her apartment. As she approached, she saw Rogers holding a gun and
Davis falling over. Boston testified that Rogers was wearing a white t-shirt and red
shorts, and as he ran away she saw him tucking a gun under his shirt. According to
Boston, Rogers ran across the street to the opposite side of the Walnut Bend
apartment complex before he disappeared from view. Boston testified that she had
no doubt that it was Rogers who shot Davis. Boston also testified that she had seen
Rogers with a Tec-9 weapon many times before the shooting, and she identified
the murder weapon as the Tec-9 belonging to Rogers.4
2
At trial, LeBlanc testified that she told Rogers to get rid of the gun some time before the
shooting and assumed he had done so.
3
Boston also testified that LeBlanc’s child was with them when they left her apartment,
but LeBlanc testified that only Boston’s children were with them because her child was playing
at a friend’s apartment.
4
Forensic evidence confirmed that bullet casings found at the scene and the bullets which
killed Davis were fired from the Tec-9 in evidence.
3
After the shooting, the police took Boston to the police station to interview
her, but she did not tell them about seeing Rogers holding a gun and Davis falling
to the ground. She also did not tell them about seeing Rogers running away with a
gun in his hand. Boston explained that she did not tell detectives everything she
had seen when they interviewed her because she feared that Rogers would shoot
her “for no reason” just as he had shot Davis. She did, however, identify Rogers
from a photo array the police showed her the next day.
As a result of their interviews, detectives developed Rogers as a suspect and
obtained a warrant for his arrest. The detectives eventually located Rogers in
Bastrop at the home of an aunt. When police knocked on the door, Rogers’s aunt,
who seemed very scared, pointed inside and whispered that Rogers was there.
Rogers was arrested, and the police retrieved a pair of red shoes from the home.
Although police believed the murder weapon was a Tec-9, Rogers did not have a
weapon when he was arrested.
Two days after the shooting, police arrested Jurron Williams for aggravated
robbery and recovered a Tec-9 from his backpack.5 At trial, Williams explained
how he came to possess the weapon. He testified that he was by the pool at the
Walnut Bend apartments on the day of the shooting when Rogers appeared at the
pool and began to talk to another person known as Ke-Ke. Rogers seemed out of
breath, and Williams heard Rogers tell Ke-Ke that he “had to kill him,” to which
Williams replied, “no you didn’t. All you had to do was fight him.” Williams
testified that Rogers was wearing a white t-shirt, red shorts, and red shoes.
According to Williams, Rogers jumped into the pool fully clothed and swam
5
Williams also acknowledged that he pleaded guilty to the aggravated robbery and
received deferred adjudication, and that one of the conditions of deferred adjudication was that
he testify truthfully in this case.
4
back and forth. When Rogers came out of the pool, he asked Williams and another
person if he could wear some of their clothes, and they agreed. Rogers changed
clothes in front of them. Williams did not see Rogers with a weapon, but he stated
that he overheard Rogers telling Ke-Ke that he had hidden the gun in the
apartment’s laundry room. Williams then went to the laundry room and retrieved
the Tec-9, which he kept in the backpack until the police discovered it. Williams
was seventeen at the time.
On cross-examination, Williams testified that, before his testimony that day,
he had never told the police this version of events. Williams acknowledged that, at
the time of his arrest, he told officers that he had been walking past the laundry
room when he saw a backpack that happened to have a gun inside. Williams told
the officers he thought it was his “lucky day.” He never said anything about seeing
Rogers at the pool or any of the other information about which he had testified.
Williams acknowledged that he remained silent even though he feared he might be
charged in Davis’s murder because he had been arrested with the murder weapon;
Williams explained that he did so because the “code of the street” was not to
“snitch.”
Yashi Duhon, a passerby, also testified at trial. On the day of the shooting,
she was visiting her boyfriend who lived in the apartments across the street. She
and her boyfriend were in his car about to exit through his complex’s gate when
they heard the gunshots. Duhon saw someone running from the apartment complex
across the street toward the exit gate of her boyfriend’s complex. The man passed
near the passenger side of the car where she was sitting. Duhon described him as a
light-skinned black man, wearing a long white t-shirt, red shorts, and red or black
shoes. Duhon testified that she got a good look at his face. Duhon also noticed that
the man seemed to have something tucked under his shirt, but she could not see
5
what it was. Police later showed Duhon a photo array of six men and asked her if
she could identify the man she saw. Duhon testified that she was “90 percent” sure
that the person shown in position 2 of the array, who was Rogers, was the man she
saw on the day of the shooting.6 Duhon also identified Rogers in court.
II
In his first issue, Rogers complains that the testimony of Boston and
Williams conflicts with the statements they gave to police when they were initially
interviewed about the crime. Rogers suggests that, once it became apparent the
witnesses’ testimony differed materially from their statements, the State had a duty
to stop the testimony, approach the bench, and inform the court that the witnesses
may be perpetrating a fraud on the court. Rogers cites Texas Disciplinary Rules of
Professional Conduct 3.03 (candor toward the tribunal) and 3.04 (fairness in
adjudicatory proceedings), as well as cases discussing the State’s duty not to
knowingly use false or misleading testimony to obtain a conviction.
The State argues that Rogers did not preserve the issue for review because it
was not raised in the trial court. In anticipation of this argument, Rogers
acknowledges that his counsel did not object to the witnesses’ testimony on this
basis, but argues that no objection was necessary to preserve the issue because the
presentation of allegedly false testimony deprived him of due process and therefore
is fundamental error.
Generally, to preserve error for appellate review, a party must make timely
objection in the trial court. Tex. R. App. P. 33.1(a); Clark v. State, 365 S.W.3d
6
Duhon’s recollection differed from that of Officer Robles, who prepared the photo array
and interviewed Duhon. At trial, Robles did not recall Duhon stating that she was “90 percent”
sure it was the person in position 2. He testified that she remarked that she believed it was the
person in position 2, but that he looked younger than the person in the photo. Robles also
testified that Duhon’s boyfriend was unable to identify anyone form the photo array.
6
333, 339 (Tex. Crim. App. 2012). Even constitutional rights may be forfeited if a
timely and specific objection is not made. Saldano v. State, 70 S.W.3d 873, 887
(Tex. Crim. App. 2002). Exceptions to the general rules of error preservation exist
in two narrow categories: violations of rights which are “waivable” and denials of
“systemic requirements.” Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App.
2004); Saldano, 70 S.W.3d at 888. Waivable rights are those rights of litigants
which must be implemented by the system unless expressly waived. Mendez, 138
S.W.3d at 341. Examples of waivable rights include the right to effective
assistance of counsel and the right to trial by jury. Saldano, 70 S.W.3d at 888. A
systemic requirement is a law that a trial court has a duty to follow even if the
parties wish otherwise. Mendez, 138 S.W.3d at 340. Systemic requirements, which
are not necessarily constitutional, include jurisdiction of the subject matter and
jurisdiction of the person. Id. at 341. Complaints of error involving waivable rights
and denials of systemic requirements have been described as “fundamental” error
for which no objection is required. See id.
To support the proposition that the State’s failure to alert the trial court to
allegedly false testimony constitutes fundamental error which may be raised for the
first time on appeal, Rogers cites Blue v. State, 41 S.W.3d 129 (Tex. Crim. App.
2000). In Blue, a plurality of the judges on the Court of Criminal Appeals held that
the trial judge’s comments before the jury, which tainted the defendant’s
presumption of innocence, amounted to fundamental error that required no
objection. Id. at 132–33.
Because Blue is a plurality opinion, it is not binding precedent and we are
not obligated to follow it. See Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim.
App. 2001); Muhammed v. State, 331 S.W.3d 187, 194 (Tex. App.—Houston [14th
Dist.] 2011, pet. ref’d). Moreover, Blue is factually distinguishable because Rogers
7
does not complain that the trial court in some way undermined the presumption of
innocence afforded to him.
In this case, Rogers argues that because the witnesses’ testimony at trial
differed from their initial statements to police, the witnesses’ testimony must be
false. But both Boston and Williams were questioned about the discrepancies
between their initial statements and their trial testimony, and both were cross-
examined extensively by defense counsel.7 Thus, the jury had the opportunity to
consider the differences between the witnesses’ statements and their testimony, as
well as the witnesses’ explanations for any conflicts, and the jury was entitled to
determine the witnesses’ credibility and resolve any conflicts in the evidence. See
Alexander v. State, 282 S.W.3d 701, 711 (Tex. App.—Houston [14th Dist.] 2009,
pet ref’d) (holding trial court did not abuse its discretion by failing to grant motion
for new trial on grounds that State used false testimony when jury was presented
with conflicting opinion testimonies and had an opportunity to resolve conflicts).
Nothing in the record demonstrates that the prosecutor engaged in any
unethical conduct or that the trial testimony of Boston or Williams was false.
Therefore, Rogers has failed to demonstrate prosecutorial violations of disciplinary
rules amounting to fundamental error. See Clark, 365 S.W.3d at 340 (holding
alleged prosecutorial misconduct did not rise to the level of fundamental error); see
also House v. State, 947 S.W.2d 251, 253 (Tex. Crim. App. 1997) (declining to
address claim that alleged violation of disciplinary rule deprived appellant of fair
trial when complaint was not raised in trial court). Accordingly, Rogers has failed
to preserve his complaint on appeal. We overrule Rogers’s first issue.
7
Indeed, Rogers acknowledges that “the defense presented a masterful cross-
examination.”
8
III
In his second issue, Rogers contends the trial court erred by allowing Officer
Jason Robles, who initially interviewed Boston, to opine that Boston was not lying
during her testimony. According to Rogers, allowing Robles to “explain the
changing testimony of the State’s star witness” in this way violated due process
and fundamental fairness. Rogers complains of the following colloquy:
Q. [Prosecutor:] Officer Robles, just to be clear, I didn’t tell you what
Ms. Boston said, did I?
A. [Robles:] No.
Q. But I asked you if she had said certain things to you, right?
A. That’s correct.
Q. Now, Officer Robles, based upon [defense counsel’s] questioning,
do you think Marquita Boston is lying now?
[Defense Counsel:] Object as to speculation,
Judge.
The Court: Overruled.
A. No.
Q. Why not?
A. It’s very common for witnesses not to be one that wants to point
the finger in court.
[Defense Counsel:] I object. That’s speculation,
Your Honor.
The Court: Overruled.
We need not address Rogers’ issue, however, because his trial objections do
not comport with the issue now raised on appeal. As discussed above, to preserve
error for appellate review, an appellant must make a timely objection in the trial
court. Tex. R. App. P. 33.1(a); Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim.
App. 2002). A defendant has not preserved error when the complaint on appeal
does not comport with the objection made to the trial court. See Wilson v. State, 71
9
S.W.3d 346, 349 (Tex. Crim. App. 2002).
At trial, Rogers’s counsel objected to Robles’s testimony as “speculation.”
But, on appeal, Rogers argues that Robles’s testimony invaded the jury’s province
by improperly commenting on Boston’s truthfulness. See Schutz v. State, 957
S.W.2d 52, 67–68 (Tex. Crim. App. 1997). Rogers did not voice this objection in
the trial court, and the objection he made was not sufficient to inform the trial court
of the complaint he now makes on appeal. An objection stating one legal theory
may not be used to support a different legal theory on appeal. Zemen v. State, 912
S.W.2d 363, 366 (Tex. App.—Houston [14th Dist.] 1995, no pet.) (citing Rezac v.
State, 782 S.W.2d. 869, 870 (Tex. Crim. App. 1990)). Because Rogers’s objection
at trial does not comport with his appellate issue, Rogers has not preserved this
issue for review. To the extent that Rogers may have attempted to raise a complaint
of fundamental error, thereby excusing any lack of preservation, we hold that the
error raised here does not rise to the level necessary to constitute fundamental
error. See Saldano, 70 S.W.3d at 889 (“We have consistently held that the failure
to object in a timely and specific manner during trial forfeits complaints about the
admissibility of evidence.”). We overrule Rogers’s second issue.
IV
In his third issue, Rogers contends that the photo array used for out-of-court
identification was impermissibly suggestive because three of the six photos “were
easily rejected because of the skin color” and therefore “gave a substantial
likelihood of misidentification.” At the hearing on Rogers’s motion to suppress,
Rogers argued that the photo array was impermissibly suggestive because it
allowed the witnesses to automatically exclude half of the individuals included in
the array.
10
A
Whether the pre-trial suspect-identification procedure in this case was
impermissibly suggestive is a mixed question of law and fact that does not turn on
an evaluation of witnesses’ credibility and demeanor, and we review such
questions de novo. See Loserth v. State, 963 S.W.2d 770, 773 (Tex. Crim. App.
1998); Brown v. State, 29 S.W.3d 251, 254 (Tex. App.—Houston [14th Dist.]
2000, no pet.).8
An in-court identification is inadmissible when it has been tainted by an
impermissibly suggestive pretrial photographic identification. Luna v. State, 268
S.W.3d 594, 605 (Tex. Crim. App. 2008); Ibarra, 11 S.W.3d at 195. The test is
whether, considering the totality of the circumstances, “the photographic
identification procedure was so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification.” Luna, 268 S.W.3d at 605
(quoting Ibarra, 11 S.W.3d at 195) (internal quotation marks omitted).
This review involves a two-step analysis: (1) whether the out-of-court
identification procedure was impermissibly suggestive; and, if so, (2) whether that
suggestive procedure gave rise to a substantial likelihood of irreparable
misidentification. See Simmons v. United States, 390 U.S. 377, 384 (1968); Barley
v. State, 906 S.W.2d 27, 33 (Tex. Crim. App. 1995). If we reach the second step,
we consider the following factors in determining whether an impermissibly
suggestive procedure gave rise to a substantial likelihood of irreparable
misidentification: (1) the witness’s opportunity to view the criminal at the time of
crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior
description of the criminal; (4) the witness’s level of certainty at the time of
8
Mixed questions turn on an evaluation of credibility and demeanor “when the testimony of one
or more witnesses, if believed, is always enough to add up to what is needed to decide the substantive
issue.” Loserth, 963 S.W.2d at 773 (citing Miller v. Fenton, 474 U.S. 104, 114–15 (1985)).
11
confrontation; and (5) the length of time between the offense and the confrontation.
Luna, 268 S.W.3d at 605.
When examining the above factors, courts are to focus on the reliability of
the identification. “Reliability is the linchpin in determining the admissibility of
identification testimony.” Id. Thus, “the identification testimony will be admissible
if the indicia of reliability outweigh the apparent corrupting effect of the
unnecessarily suggestive pretrial occurrence.” Harris v. State, 827 S.W.2d 949,
959 (Tex. Crim. App. 1992). The burden is on the defendant to show by clear and
convincing evidence that the in-court identification is unreliable. Delk v. State, 855
S.W.2d 700, 706 (Tex. Crim. App. 1993).
Although the better practice may be to get as many individuals as possible
who fit the suspect’s description, it is not essential that all individuals be identical
in appearance. See Buxton v. State, 699 S.W.2d 212, 216 (Tex. Crim. App. 1985)
(stating that varying heights, weights, and skin colors of persons in photo array did
not render array impermissibly suggestive). Neither due process nor common sense
requires such exactitude. Id.
B
At the motion-to-suppress hearing, Officers Robles and Robert Blain
testified, as did two witnesses: Yashi Duhon and Endurance Sanyamandwe. Robles
testified that he prepared the photo array. Robles explained that computer software
provides images similar to the suspect’s booking photo, and from those Robles
selected the images to use. The software would then randomly position the photos
in the array. In this case, Rogers’s photo was in position 2. Robles testified that all
of the photos were images of black males with similar characteristics and features.
Robles showed the photo to Duhon, who testified that she was “90 percent
12
sure” the man she saw at the complex the day of the shooting was the man in
position 2, although she thought the suspect looked younger like the one in
position 4. Duhon testified that the man she saw was a light-skinned black man,
wearing a white t-shirt, red shorts, and red or black shoes, and he appeared to be
holding something under his shirt. Duhon explained that, as the man ran past the
vehicle she was in, he came within four feet of her, close enough for her to reach
out and touch him. She testified that the man was in her field of vision for about
fifteen seconds. Duhon also identified Rogers in court, and testified that her
identification of Rogers was based on her recollection and not as a result of having
seen his picture in the photo array.
Sanyamandwe testified that he was in the parking lot of his church when he
heard gunshots. He turned toward the sound and saw a man running away from the
direction of the gunshots to the apartments across the street. The man was about
110 yards from him. Sanyamandwe testified that the man was a young black man,
wearing a white t-shirt and red shorts. However, Sanyamandwe could not tell if the
man’s complexion was light or dark. When shown the photo array, Sanyamandwe
recalled eliminating some of the persons but could not remember which ones.
Sanyamandwe was unable to identify Rogers in the courtroom.
Blain testified that he showed the photo array Robles prepared to
Sanyamandwe. According to Blain, Sanyamandwe concluded that the individual he
had seen was not in positions 1, 3, or 5, but he was not sure about the other
positions. Sanyamandwe’s wife was also shown the photo array, but she was
unable to identify the man she had seen the day of the shooting. On cross-
examination, Blain agreed that the persons in position 3 and 5 of the photo array
had darker complexions than the persons in positions 2, 4, or 6.
The trial court denied Rogers’s motion to suppress. At trial, Robles, Blain,
13
and Duhon offered substantially similar testimony. Sanyamandwe did not testify.
Based on our review of the photo array in evidence and the testimony of the
witnesses, we conclude that Rogers has failed to demonstrate that the photo array
was impermissibly suggestive. Although the complexions of some of the
individuals included in the array varied from that of Rogers, minor discrepancies
among lineup participants will not render a lineup impermissibly suggestive. See
Buxton, 699 S.W.2d at 216; see also Johnson v. State, 901 S.W.2d 525, 535 (Tex.
App.—El Paso 1995, pet. ref’d) (holding that photo spread was not impermissibly
suggestive even though defendant’s photo appeared darker than the others when
defendant failed to establish the others were not of the same general skin color as
he was); Clay v. State, 702 S.W.2d 747, 749 (Tex. App.—San Antonio 1985, pet.
ref’d) (stating that even if the photos of others had different shades of the same
skin color as defendant, that fact would not by itself render the lineup
impermissibly suggestive). Rogers does not argue that the identification process
was tainted in any additional way.
Because we conclude that the pretrial identification procedure was not
impermissibly suggestive, we need not address whether the procedure created a
substantial likelihood of misidentification. We overrule Rogers’s third issue.
V
In his fourth issue, Rogers contends that the evidence is insufficient to
support the court costs of $594 assessed against him in the judgment. Rogers
argues there is no documentation supporting this fee as is mandated by article
103.001 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. art.
103.001 (“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
14
for the cost.”).
Rogers also cites as support this court’s recent opinion in Johnson v. State,
389 S.W.3d 513 (Tex. App.—Houston [14th Dist.] 2012, pet. granted). In Johnson,
the court held that when the record does not support the assessment of a certain
dollar amount in costs, the trial court errs in entering a specific dollar amount in its
judgment. Id. at 516. Rogers points out that he specifically requested the district
clerk to include the bill of costs in the appellate record, but none was provided.9
The State responds that there are numerous provisions in the Texas Code of
Criminal Procedure authorizing various court costs to be paid by a defendant when
convicted of a felony offense after a trial. The State suggests ten specific articles of
the Code of Criminal Procedure and three sections of the Local Government Code
providing for fees that, if assessed against Rogers, would add up to an amount of at
least $664. Therefore, the State maintains, the evidence is sufficient to support the
$594 in court costs reflected in the judgment.
We disagree with the State’s argument. To affirm the judgment for costs
merely because a number of statutes authorize certain costs or fees that could have
been assessed against the defendant—without regard to whether they were actually
assessed—would be speculative. Moreover, without any indication in the record
which specific fees or costs were actually assessed, a defendant has no way to
challenge their correctness on appeal or as provided under article 103.008 of the
Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 103.008 (authorizing
9
After Rogers’s brief was filed, the court received two supplemental clerk’s records
containing certified copies of Justice Information Management System (JIMS) computer
printouts reflecting Rogers’s “cost bill assessment” totaling $594 and, as amended, a cost bill
assessment totaling $564. Neither party discusses these supplemental records. In Johnson, this
court stated that an unsigned computer printout from JIMS that does not show it was brought to
the attention of the trial judge is not an actual bill of costs under article 103.001 of the Texas
Code of Criminal Procedure. See Johnson, 389 S.W.3d at 515–16 & n.1.
15
defendant to file a motion within one year after the date of the final disposition of a
case in which costs were imposed to correct any error in the costs). We therefore
reject the State’s argument that the record supports the $594 in costs assessed in
Rogers’s judgment merely because the trial court is authorized to impose
applicable costs which, in some hypothetical combination, would equal or exceed
the total amount of costs actually assessed in the judgment.
The trial court did not err in ordering Rogers to pay court costs, as such costs
are mandated by law, but the court did err in entering a specific dollar amount
without any support in the record for that dollar amount. See Johnson, 389 S.W.3d
at 516. Because there is no evidence in the record to support the trial court’s
assessment of a specific dollar amount as court costs, we sustain Rogers’s fourth
issue and reform the trial court’s judgment to delete the specific dollar amount of
costs assessed. See id.; see also Mayer v. State, 309 S.W.3d 552, 554–56 (Tex.
Crim. App. 2010) (holding that sufficient evidence must support an assessment of
costs in a judgment).
***
We modify the trial court’s judgment to delete the listing of a specific
amount of court costs and affirm the judgment as modified.
/s/ Jeffrey V. Brown
Justice
Panel consists of Justices Frost, Brown, and Busby.
Publish — TEX. R. APP. P. 47.2(b).
16