PD-0725-15 PD-0725-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 7/15/2015 3:06:30 PM Accepted 7/17/2015 1:53:37 PM ABEL ACOSTA IN THE CLERK COURT OF CRIMINAL APPEALS
JOSE L. ALDANA, § APPELLANT § § V. § No. PD-0725-15 § THE STATE OF TEXAS, § APPELLEE §
STATE’S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION OF THE COURT OF APPEALS FOR THE EIGHTH COURT OF APPEALS DISTRICT OF TEXAS IN CAUSE NUMBER 08-13-00243-CR, MODIFYING THE JUDGMENT OF THE TRIAL COURT IN CAUSE NUMBER 1333327R IN THE 396TH JUDICIAL DISTRICT COURT OF TARRANT COUNTY, TEXAS; THE HONORABLE GEORGE GALLAGHER, PRESIDING.
§§§ STATE’S PETITION FOR REVIEW §§§
SHAREN WILSON Criminal District Attorney Tarrant County, Texas
DEBRA WINDSOR, Assistant Criminal District Attorney, Chief, Post-Conviction
JAMES GIBSON, Assistant Criminal District Attorney July 17, 2015 State Bar No. 00787533 Tim Curry Criminal Justice Center 401 W. Belknap Fort Worth, Texas 76196-0201 (817) 884-1687 FAX (817) 884-1672 CCAAppellateAlerts@TarrantCountytx.gov IDENTITY OF THE PARTIES AND COUNSEL
The trial judge was Hon. George Gallagher, presiding judge of the 396th
Judicial District Court of Tarrant County, Texas.
The State of Texas, represented by Sharen Wilson, Tarrant County Criminal
District Attorney, is a party to this litigation. At trial, the State was represented by
William Vassar and Heather Davenport, Assistant Criminal District Attorneys. On
appeal, the State is represented by James Gibson, Assistant Criminal District
Attorney, and Debra Windsor, Assistant Criminal District Attorney. The address of
these attorneys is Office of the Criminal District Attorney of Tarrant County, 401
W. Belknap, Fort Worth, Texas 76196-0201.
Appellant, Defendant below, is Jose Aldana. Appellant was represented at
trial by Hon. Al Lazarus, 115 W. Second St., Suite 202, Fort Worth, Texas 76102,
and on appeal by Hon. Leigh Davis, 1901 Central Dr., Suite 708 LB 57, Bedford,
Texas 76021.
ii SUBJECT INDEX
IDENTITY OF THE JUDGE, PARTIES, AND COUNSEL ................................... ii SUBJECT INDEX ................................................................................................... iii INDEX OF AUTHORITIES......................................................................................v STATEMENT REGARDING ORAL ARGUMENT ...............................................1 STATEMENT OF THE CASE ..................................................................................2 PROCEDURAL HISTORY AND COURT OF APPEALS’ OPINION ...................3 QUESTIONS FOR REVIEW ....................................................................................4 FIRST QUESTION FOR REVIEW Should a defendant be required to object in the trial court that concurrent
fines notated on three judgments are improper and should be deleted from
two of them?
SECOND QUESTION FOR REVIEW Is reformation of the judgments to delete fines an appropriate remedy when
the judgments, on their face, contain no errors, the fines are properly
notated, and the written judgments do not differ from the trial court’s oral
pronouncement of sentence?
THIRD QUESTION FOR REVIEW Did the Court of Appeals’ opinion amount to an improper “backdoor”
assessment of a civil law matter for which it had no jurisdiction?
iii STATEMENT OF FACTS ........................................................................................5 DISCUSSION ............................................................................................................6 I. The Court of Appeals’ opinion ......................................................................6 II. Appellant should have objected to the fines .................................................7 III. There was no “error” in the judgment – so there was nothing to “reform.” ...................................................................................................9 CONCLUSION ........................................................................................................12 PRAYER ..................................................................................................................13 CERTIFICATE OF COMPLIANCE .......................................................................14 CERTIFICATE OF SERVICE ................................................................................14 COURT OF CRIMINAL APPEALS’ OPINION ....................................APPENDIX
iv INDEX OF AUTHORITIES
CASES PAGE(S) Aldana v. State, No. 08-13-00243-CR, 2015 WL 2344023 (Tex. App.—El Paso May 14, 2015) ......................................................3, 6, 7, 10
Bigley v. State, 865 S.W.2d 26 (Tex.Crim.App.1993) .................................................................. 9
Fullbright v. State, 818 S.W.2d 808 (Tex. Crim. App. 1991) ............................................................. 7
Habib v. State, 431 S.W.3d 737 (Tex. App.—Amarillo 2014, pet. ref’d) ..........................11, 11n
Harrell v. State, 286 S.W.3d 315 (Tex. 2009) ..............................................................................12
In re Johnson v. Tenth Judicial District Court of Appeals, 280 S.W.3d 866 (Tex. Crim. App. 2008) ...........................................................12
Latson v. State, 440 S.W.3d 119 (Tex. App.—Houston [14th Dist.] 2013, no pet.) ...............8, 12
State v. Crook, 248 S.W.3d 172 (Tex. Crim. App. 2008) (plurality op.) ..................................6, 9
Warren v. Purtell, 63 Ga. 428 (1879) ...............................................................................................10
Wiedenfeld v. State, 450 S.W.3d 905 (Tex. App.—San Antonio 2014, no pet.) ..........................10, 11
v STATUTES
TEX. GOV’T CODE §501.014(e) ................................................................................ 9
TEX. R. APP. P. 33.1 ...................................................................................................7
TEX. R. APP. P. 43.2(b) ...............................................................................................9
TEX. R. APP. P. 47.1 ...................................................................................................7
vi IN THE COURT OF CRIMINAL APPEALS
JOSE L. ALDANA, § APPELLANT § § V. § No. PD-0725-15 § THE STATE OF TEXAS, § APPELLEE §
STATE’S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION OF THE COURT OF APPEALS FOR THE EIGHTH COURT OF APPEALS DISTRICT OF TEXAS IN CAUSE NUMBER 08-13-00243-CR, MODIFYING THE JUDGMENT OF THE TRIAL COURT IN CAUSE NUMBER 1333327R IN THE 396TH JUDICIAL DISTRICT COURT OF TARRANT COUNTY, TEXAS; THE HONORABLE GEORGE GALLAGHER, PRESIDING.
STATEMENT REGARDING ORAL ARGUMENT
Because the State’s arguments involve both legal issues which are unsettled
and the interplay between criminal law and civil matters, oral argument would be
helpful in elucidating the State’s views.
1 STATEMENT OF THE CASE
Appellant was indicted for (1) aggravated sexual assault of a child (digital
penetration); (2) aggravated sexual assault of a child (mouth-to-genital contact);
(3) indecency with a child (touching victim’s sexual organ); (4) indecency with a
child (breast touching); and (5) indecency with a child (causing victim to touch
Appellant’s genitals). CR 6.
The jury acquitted Appellant of the two aggravated sexual assault counts,
but convicted him of all three indecency counts. RR VI – 4. The jury also assessed
punishment – sixteen years and a $3,000 fine for each count. RR VIII – 4. The trial
court ordered these sentences to run concurrently. Id.
2 PROCEDURAL HISTORY AND COURT OF APPEALS’ OPINION
On appeal, Appellant complained that the fines for all three offenses were
“duplicative” and that two of them should be deleted, that the court costs attached
to the third count were insufficiently clear and should be deleted, and that the trial
court’s requirement that court costs be paid as a condition of parole should be
deleted. See App. brief at 2-3 (summary of claims).
A panel of the El Paso Court of Appeals agreed with Appellant on his first
and third claims and reformed the judgments to delete two of the fines and any
language requiring that court costs be paid as a condition of parole. See Aldana v.
State, No. 08-13-00243-CR, 2015 WL 2344023 at *2 (Tex. App.—El Paso May
14, 2015).
3 QUESTIONS FOR REVIEW
(1) Should a defendant be required to object in the trial court that
concurrent fines notated on three judgments are improper and should
be deleted from two of them?
(2) Is reformation of the judgments to delete fines an appropriate remedy
when the judgments, on their face, contain no errors, the fines are
properly notated, and the written judgments do not differ from the trial
court’s oral pronouncement of sentence?
(3) Did the Court of Appeals’ opinion amount to an improper “backdoor”
assessment of a civil law matter for which it had no jurisdiction?
4 STATEMENT OF FACTS
Appellant was indicted for committing five counts of various forms of
sexual abuse against the nine-year-old granddaughter of his wife. CR 6; RR IV –
20-21. The jury acquitted him of two aggravated sexual assault counts, but
convicted him of three counts of indecency with a child. RR IV - 6. The jury’s
verdict at punishment was sixteen years in prison and a $3,000 fine for each count.
RR VIII – 4. The trial court ordered the sentences to be served concurrently. RR
VIII - 5.
As the State’s petition for review concerns only the court of appeals’
decision to delete fines from two of the judgments, a further recitation of the facts
is unnecessary.
5 DISCUSSION
This is a case about remedies. Or, to be more precise, how can a court of
appeals fashion a “remedy” to fix a non-erroneous judgment? In the State’s view,
the El Paso Court of Appeals, overly protective of a defendant who might
experience administrative problems in the future, went out of its way to correct
judgments which, on their face, were in perfect order.
I. The Court of Appeals’ opinion.
The El Paso Court correctly noted that Appellant received three judgments
of conviction, each assessing Appellant a fine of $3,000, and each judgment
indicated that Appellant’s sentences would run concurrently. Aldana, 2015 WL
2344023 at *1; CR 174, 179, 184. The opinion goes on to clarify that “[f]ines
which are part of concurrent sentences should also ‘run’ concurrently.” Aldana,
2015 WL 2344023 at *1 (citing State v. Crook, 248 S.W.3d 172, 174 (Tex. Crim.
App. 2008) (plurality op.)).
These facially appropriate judgments were not, however, enough for the
court of appeals. Opining that “the clerks and functionaries with the Texas
Department of Corrections [sic]” might not understand the concept of concurrent
fines, the El Paso Court deleted the fines from two of the judgments. Id. at *2.
6 With regard to Appellant’s complaint that the withdrawal orders should also be
deleted, and with regard to the State’s response that the court of appeals was
without jurisdiction to consider what was essentially a civil matter, the court of
appeals asserted that this issue was mooted by the deletion of the fines from the
judgments. Id.
II. Appellant should have objected to the fines
In its reply brief to the court of appeals, the State argued that Appellant
should have objected if he felt that he would be unduly penalized by judgments
which accurately reflected the jury’s verdicts (i.e., three judgments each containing
a $3,000 fine). See State’s brief at 6 (citing TEX. R. APP. P. 33.1).
The court of appeals’ opinion mentions this argument, but does not address
it. See Aldana, 2015 WL 2344023 at *1. It should have. See TEX. R. APP. P. 47.1
(opinion should address “every issue raised and necessary to final disposition of
the appeal”). At the very least, this case should be remanded to the court of appeals
to consider the State’s preservation argument.
In any event, Appellant’s failure to object should result in a forfeiture of his
claim. First, he does not contend that the sentence was void or illegal. See, e.g.,
Fullbright v. State, 818 S.W.2d 808, 809 (Tex. Crim. App. 1991) (defect that
7 renders sentence void may be raised at any time). At worst, Appellant appears to
make the peculiar claim that his sentence will merely be misinterpreted by prison
authorities. See App. brief at 7 (“Thus, [Appellant] is obligated to pay all three of
these fines, and payment for them will be extracted from his TDCJ trust account
and remitted to the Tarrant County District Clerk.”).
Second, this is not a case where Appellant was unable to object – for
example, if a later-generated paper judgment did not accurately reflect what
occurred in court, it might have been too late to object. In this case, after reading
the jury verdicts (each of which levied a fine of $3,000), the trial judge sentenced
Appellant: “the jury having found you guilty and returned the verdict of 16 years
and a $3,000 fine in each count….” RR VIII – 8. Appellant should have been
under a clear impression that a written judgment (or, in this case, judgments)
would specifically delineate a $3,000 fine for each conviction. Had Appellant felt
an impending ambiguity that he now claims is obvious, he should have objected at
the time. See Latson v. State, 440 S.W.3d 119, 123 (Tex. App.—Houston [14th
Dist.] 2013, no pet.) (defendant required to complain in trial court about possible
improper withdrawals from his inmate trust fund to satisfy court costs).
Because Appellant did not object, the court of appeals should have held that
he forfeited his claim.
8 III. There was no “error” in the judgment – so there was nothing to
“reform.”
It is axiomatic that, before an erroneous judgment may be reformed by an
appellate court, there must be some “error.” See TEX. R. APP. P. 43.2(b); Bigley v.
State, 865 S.W.2d 26, 27 (Tex.Crim.App.1993) (acknowledging an appellate
court’s ability to reform a judgment resulting from clerical or substantive errors).
Here, the jury clearly assessed a $3,000 fine for each count of the indictment. CR
168, 169, 170. The trial court’s oral pronouncement of sentence reflected that and
additionally clarified that Appellant’s sentences would run concurrently. RR VIII –
8; see Crook, 248 S.W.3d at 174. The written judgments memorialized these
concurrent sentences. CR 173, 179, 184. Included with the judgments are orders to
the Texas Department of Criminal Justice to withdraw funds from Appellant’s
inmate trust account. CR 177, 182, 187. See TEX. GOV’T CODE §501.014(e)
(mechanism for withdrawing funds from inmate trust account). All three
withdrawal orders reflect a fine of $3,000. Id. One of them includes court costs.
CR 177.
Given that the written judgments agreed with the oral pronouncement of
sentence, there was simply no error to correct. However, in a fit of semi-nunc pro
tunc jiu jitsu, the El Paso Court has speculatively employed a kind of all-purpose
9 Murphy’s Law – an assumption that mere functionaries in the prison system are
unable to understand the law and will charge Appellant $9,000 instead of the
$3,000 he actually owes. Aldana, 2015 WL 2344023 at *2. In fact, the court of
appeals doesn’t even seem particularly convinced that this assumption is true, only
that it might be “probable.” See id. (quoting Warren v. Purtell, 63 Ga. 428, 430
(1879) (“it is always probable that something improbable will happen”)).
This is thin gruel indeed on which to base a decision that these judgments
need fixing. There is no reason to presume incompetence on the part of the
Institutional Division of the Department of Criminal Justice, and there is no reason
to think that the concept of a “concurrent fine” is beyond the ken of those who
work in the Classification and Records Department. As the State pointed out
below, it would be unwarranted to presume that the Division would confine
Appellant for forty-eight years just because each of his separate (but concurrent)
judgments indicated a sentence of sixteen years. State’s brief at 5.
There are, obviously, similar situations in which reformation might be
appropriate. For example, in Wiedenfeld v. State, 450 S.W.3d 905 (Tex. App.—San
Antonio 2014, no pet.), the trial court orally pronounced concurrent fines of $1,000
on two counts. Id. at 906. Despite this, however, the subsequent judgment put the
defendant on the hook for $2,000. Id. The court of appeals understandably
10 reformed the judgment to reflect a fine of $1,000.1 Id. at 907. This is obviously
distinguishable from Appellant’s situation. In Appellant’s case, the trial court’s
oral pronouncement does not deviate in any way from the written judgments.
More troubling, perhaps, is the Amarillo Court of Appeals’ opinion in Habib
v. State, 431 S.W.3d 737 (Tex. App.—Amarillo 2014, pet. ref’d). The two written
judgments in that case accurately reflected that two $5,000 fines would run
concurrently. Id. at 742. However, because there was a $5,000 fine included in
both bills of costs, the court of appeals determined that the fines were effectively
cumulated. Id. Thus, the court deleted the $5,000 fine from one of the judgments.
Id. Although the Amarillo court did not engage in any real analysis of the issue 2, it
seemed to be of the same mind as the El Paso court – that multiple bills of costs
(or, perhaps, withdrawal orders) would be too confusing for prison officials and
would induce them to ignore the law of concurrent fines. But that is no reason for a
court of appeals to delete fines from an otherwise healthy judgment of conviction.
As far as the withdrawal orders are concerned, the State adheres to its earlier
argument that Appellant’s worries about the withdrawal orders have nothing to do
with the appeal of his conviction. See State’s brief at 5-6. As the Texas Supreme
Court has pointed out, “a withdrawal order does seize payment for costs previously 1 Unlike in Appellant’s case, both counts in Wiedenfeld’s situation were apparently both subsumed into one judgment. 2 This was probably because the State conceded the point of error in full. See Habib, 431 S.W.3d at 742. 11 taxed in a criminal case, but the criminal case is over.” Harrell v. State, 286
S.W.3d 315, 318 (Tex. 2009). See also id. (“Harrell is not contesting the convicting
court’s authority to assess costs but its authority to collect costs.”) (emphasis in
original); In re Johnson v. Tenth Judicial District Court of Appeals, 280 S.W.3d
866, 873 (Tex. Crim. App. 2008) (an inmate trust account withdrawal order is not
appealable as a criminal law matter). Indeed, it appears that because the El Paso
Court was precluded by Harrell and Johnson from adjudicating the withdrawal
order, it simply used its reformation of the judgment to, in its words, “moot[ ]”
that order. Further, as no withdrawal has been made, Appellant should have
nothing to complain about. See Latson, 440 S.W.3d at 123 (defendant’s complaints
about costs are meritless where “the record contains no evidence that funds have
been withdrawn from [defendant’s] inmate trust fund”).
CONCLUSION
A jury convicted Appellant of three separate indecency-with-a-child
offenses. That same jury then determined that each count deserved a fine of $3,000
(along with three prison sentences of sixteen years). The trial court ordered that
these sentences (including, necessarily, the fines) run concurrently. However, the
El Paso Court of Appeals has chosen to judicially abrogate the jury’s decision and
12 delete the fines from two of the judgments, based on its unsupported assumption
that officials in the prison system will misunderstand the law and take three times
from Appellant what he owes.
The El Paso Court’s opinion is a remedy in search of a problem, and this
Court should correct it.
PRAYER
The State prays that its petition be granted and that the Court of Appeals’
judgment deleting fines from two of the trial court’s judgments be reversed.
Respectfully submitted,
SHAREN WILSON Criminal District Attorney Tarrant County, Texas
DEBRA WINDSOR, Assistant Criminal District Attorney, Chief, Post-Conviction
/s/ James Gibson JAMES GIBSON, Assistant Criminal District Attorney State Bar No. 00787533 Tim Curry Criminal Justice Center 401 W. Belknap Fort Worth, Texas 76196-0201 (817) 884-1687 FAX (817) 884-1672 CCAappellatealterts@tarrantcountytx.gov
13 CERTIFICATE OF COMPLIANCE
I certify that this document contains 1,808 words.
/s/ James Gibson JAMES GIBSON
CERTIFICATE OF SERVICE
A copy of the State’s petition for discretionary review has been e-served to
opposing counsel, the Hon. Leigh Davis, leaghwdavis@gmail.com, 1901 Central
Dr., Ste. 708, Bedford, Texas 76021 and to the Hon. Lisa McMinn, State’s
Prosecuting Attorney’s Office, information@spa.texas.gov, P. O. Box 13046,
Austin, Texas 78711, on July 15, 2015.
14 APPENDIX
COURT OF APPEALS’ OPINION Aldana v. State, Not Reported in S.W.3d (2015)
basis, $3,654 from Appellant's account until the total sum is paid. The judgments for Counts Four and Five also assess the 2015 WL 2344023 $3,000 fine, but do not assess any court costs. The judgments Only the Westlaw citation is currently available. of conviction for Counts Four and Five also include an order SEE TX R RAP RULE 47.2 FOR to withdraw funds for the respective $3,000 fines attributed DESIGNATION AND SIGNING OF OPINIONS. to each count.
(DO NOT PUBLISH) Appellant brings three issues for review. In Issue One, he Court of Appeals of Texas, contends that we should reform two of the judgments to El Paso. delete the $3,000 fine because when the jail sentences run concurrently, the fines must also run concurrently. In Issue Jose L. Aldana, Appellant, Two, Appellant complains that the Bill of Costs is defective. v. Finally, in Issue Three, he argues that the Bill of Costs should The State of Texas, Appellee. be reformed to delete the requirement that court costs must be paid as a condition of parole. No. 08–13–00243–CR | May 14, 2015
Appeal from 396th District Court of Tarrant County, Texas (TC # 1333327R) DUPLICATIVE FINES
Before McClure, C.J., Rodriguez, and Hughes, JJ. Fines which are part of concurrent sentences should also “run” concurrently. State v. Crook, 248 S.W.3d 172, 174 (Tex.Crim.App.2008). The holding in Crook is based on OPINION Tex. Penal Code Ann. § 3.03(a)(West Supp.2014), which in relevant part provides that “sentences shall run concurrently” ANN CRAWFORD McCLURE, Chief Justice when “the accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a *1 This appeal arises out of Appellant's conviction on three single criminal action.” Id. The sentences for certain crimes, counts of indecency with a child. Because his only issues for such as Appellant was convicted of here, can run either review pertain to the monetary fine which was assessed, and concurrently or consecutively. Id. at § 3.03(b)(2). The trial the Bill of Costs, we limit our discussion of the facts to those judge here ordered the sentence to run concurrently, and we discrete issues. accept the State's concession that the fines should similarly run concurrently, in the sense that if Appellant pays one fine, he pays them all. FACTUAL SUMMARY The State suggests that there is no proof that the Texas Appellant was charged with two counts of aggravated sexual Department of Corrections will treat the three fines assault of a child (Counts One and Two of the indictment) and cumulatively, no more so than it would treat his sentence three counts of indecency with a child (Counts Three, Four, cumulatively. It further responds that we should not modify and Five). He was acquitted on the two aggravated sexual the order to withdraw funds because it is a civil matter. assault counts, but convicted on all three indecency counts Finally, the State alleges that any ambiguity in the judgments (Counts Three, Four, and Five). The jury assessed a sixteen- of conviction should have been raised in the trial court. year sentence and a $3,000 fine on each of the indecency counts. The judgments of conviction for Counts Three, Four, *2 There is perhaps some ambiguity in the judgments with and Five require the sentences to run concurrently. The regard to the fines. The court costs are included in only judgment for Count Three assesses a $3,000 fine and taxes an one judgment, but the fines appear in all three, even though itemized Bill of Costs totaling $654, making the total amount both the fines and court costs are intended to be treated the due $3,654. An order to withdraw funds, which is expressly same (i.e. taxed concurrently). And as the Texas Court of incorporated into the judgment, directs the Texas Department Criminal Court of Appeals alluded to in Crook, it is natural of Criminal Justice to withdraw on a percentage formula to say that a sentence runs concurrently, because of the
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Aldana v. State, Not Reported in S.W.3d (2015)
abbreviations which are undecipherable (i.e. “DC Rec Pre temporal element of a prison sentence. Id. at 175. But paying & Auto,” “PO Commit/Rel,” “Jud Support–CRM,” “CCC– a fine concurrently is perhaps not as intuitive a concept. In Felony”). He concedes that the Fort Worth Court of Appeals an ideal world, the clerks and functionaries with the Texas Department of Corrections would understand the import of has heard and rejected this same complaint. 1 Lawrence State v. Crook. But as a jurist once noted, “it is always v. State, 420 S.W.3d 329 (Tex.App.—Fort Worth, 2014, probable that something improbable will happen.” Warren v. pet. refd); Cranfill v. State, No. 02–13–00567–CR, 2014 Purtell, 63 Ga. 428, 430 (1879). Accordingly, we reform the WL 4946979 *1 (Tex.App.—Fort Worth, Oct. 2, 2014, judgments of conviction for Counts Four and Five to delete no pet.)(mem. op., not designated for publication)(noting the $3,000 fine reflected in each. Tex.R.App.P. 43.2(b)(“The abbreviations in Bill of Cost correlated to statutorily imposed court of appeals may: ... (b) modify the trial court's judgment fees and charges). We further reject Appellant's claim that and affirm it as modified”). The $3,000 fine for Count Three the abbreviations deny him due process for lack of fair remains in place, and Appellant asserts no other ground to notice. As noted in Johnson v. State, the mandatory costs are with regard to that Count. fixed by published statutes which give criminal defendants constructive notice of their provisions. 423 S.W.3d at 389. We generally agree with the State that orders to withdraw Accordingly, we overrule Issue Two. funds are essentially civil matters falling outside the scope of our jurisdiction in a criminal appeal. See Lewis v. State, 1 In this transferred appeal, we are obliged to follow the No. 05–12–00844–CR, 2014 WL 31690 at *7 (Tex.App.- precedents of the Fort Worth Court of Appeals. See Dallas Jan. 6 2014, pet. ref'd)(mem. op. not designated for TEX.R.APP.P. 41.3. publication)(“The withdrawal order is not a criminal matter; it In Issue Three, Appellant complains that the Bill of Costs stems from a civil proceeding that is separate and independent erroneously requires that any unpaid portion must be paid from the judgment that assessed appellant's conviction and as a condition of parole (“Any amounts reflected above that sentence.”), citing Harrell v. State, 286 S.W.3d 315, 317– are unpaid at the time of parole shall be paid as a condition 19 (Tex.2009) and In re Johnson, 280 S.W.3d 866, 873– of parole”). Setting conditions of parole is a power reserved 74 (Tex.Crim.App.2008). The order to withdraw funds in to the executive branch, rather than the judiciary. Ceballos Counts Four and Five, however, are expressly incorporated v. State, 246 S.W.3d 369, 373 (Tex.App.—Austin 2008, into the judgments of conviction and became part of it. pet ref'd). The judiciary can only make recommendations Having reformed the judgments of convictions in Four and regarding conditions of parole. Id. The State concedes this Five to delete the $3,000 fine, the orders to withdraw funds error and requests that we reform the Bill of Costs to are necessarily mooted. remove that condition. See Bray v. State, 179 S.W.3d 725, 728 (Tex.App.—Fort Worth 2005, no pet.)(noting authority to reform judgment which improperly required payment of CHALLENGE TO THE BILL OF COST attorney's fees as condition of obtaining parol).
“A cost is not payable by the person charged with the cost *3 We therefore modify the judgment of conviction for until a written bill is produced or is ready to be produced, Counts Four and Five to delete the $3,000 fine in each of containing the items of cost, signed by the officer who those judgments. We grant relief under Issue Three to the charged the cost or the officer who is entitled to receive extent that we reform the judgment of conviction for Count payment for the cost.” Tex.Code Crim. Proc. art. 103.001 Three to delete from the Bill of Cost the following statement: (West 2006). A cost bill is not essential to tax court costs “Any amounts reflected above that are unpaid at the time of against a criminal defendant, but it is favored and preferred. parole shall be paid as a condition of parole.” We affirm the Johnson v. State, 423 S.W.3d 385 (Tex.Crim.App.2014) judgments as modified. (holding there is no requirement for challenging costs with the trial court). All Citations Appellant here claims that the Bill of Costs is defective Not Reported in S.W.3d, 2015 WL 2344023 because the itemized charges are identified only by shorthand
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 2