Barnes, Billy Lufthansa v. State

Opinion

Modified, Affirmed as modified, and Opinion Filed November 6, 2013

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-00925-CR

BILLY LUFTHANSA BARNES, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 7 Dallas County, Texas Trial Court Cause No. F12-22227-Y

MEMORANDUM OPINION Before Justices FitzGerald, Francis, and Myers Opinion by Justice Francis Billy Lufthansa Barnes appeals his conviction for theft of property valued less than

$1500 enhanced by two prior convictions for theft. After finding him guilty, the jury assessed

punishment, enhanced by a prior conviction, at four years in prison. In a single issue, appellant

contends the evidence is insufficient to support the trial court’s judgment that appellant pay $239

in court costs because the clerk’s record does not contain a bill of costs. We affirm.

The clerk’s record in this case did not contain a copy of the bill of costs and appellant’s

designation of record on appeal did not specifically request that a copy of the bill of costs be

included. Because appellant complained that the clerk’s record did not contain a bill of costs, we

ordered the Dallas County District Clerk to file a supplemental record containing the certified

bill of costs associated with this case, and the clerk did so. See TEX. R. APP. P. 34.5(c)(1). To the extent appellant complains the evidence is insufficient to support the imposition of costs

because the clerk’s record did not contain a bill of costs, this complaint is moot. See Franklin v.

State, 402 S.W.3d 894, 895 (Tex. App.—Dallas 2013, no pet.). We overrule his sole issue.

In response to the Court’s order requiring supplementation of the record, appellant filed

two objections that the bill of costs in the supplemental clerk’s record is not a “proper bill of

costs” and was not filed in the trial court or brought to the trial court’s attention before costs

were entered in the judgment.

We previously have addressed these issues. See Coronel v. State, 05-12-00493-CR, 2013

WL 3874446, at *4‒5 (Tex. App.—Dallas July 29, 2013, no pet. h.). In Coronel, we concluded

the “Bill of Costs Certification,” certified and signed by the district clerk, was sufficient to meet

the mandate of the code of criminal procedure. Id. at *4. In this case, the supplemental record

contains a Bill of Costs Certification, certified and signed by the district clerk, listing the costs

associated with this case. Because this document meets the mandate of the code of criminal

procedure, we overrule appellant’s objection that the bill of costs is not “proper.”

In his second complaint, appellant argues there is no indication the bill of costs was filed

in the trial court or brought to the trial court’s attention before costs were entered in the

judgment. In Coronel, we noted that nothing in the code of criminal procedure or the statutes

addressing the assessment of costs against defendants requires that a bill of costs be presented to

the trial court at any time before judgment. Id. at *5. We concluded that court costs are

mandated by statute and “are not subject to approval or authorization by the trial court.

Likewise, the code does not require the bill of costs be filed at the time the trial court signs the

judgment of conviction [but] only requires a bill of costs be produced if a criminal case is

appealed or costs are collected.” Id. Because there is no requirement that the costs be presented

–2– to the trial court, we conclude appellant’s second objection to the supplemented record lacks

merit. We overrule his objections to the supplemented record.

Finally, the judgment in this case contains an incorrect recitation regarding the

enhancement paragraph. The judgment contains “N/A” on the plea and finding; however, the

record shows appellant pleaded not true to the allegation of a prior felony conviction and the jury

found the allegation to be true and assessed punishment in the enhanced range. We modify the

judgment in this cause to reflect a plea of “not true” and a finding of “true” to the first

enhancement paragraph. See Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991,

pet. ref’d) (appellate court has authority to correct trial court’s judgment when it has necessary

data and information to do so).

As modified, we affirm the trial court’s judgment.

/Molly Francis/ MOLLY FRANCIS JUSTICE

Do Not Publish TEX. R. APP. P. 47

120925F.U05

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

BILLY LUFTHANSA BARNES, Appellant On Appeal from the Criminal District Court No. 7, Dallas County, Texas No. 05-12-00925-CR V. Trial Court Cause No. F12-22227-Y. Opinion delivered by Justice Francis, THE STATE OF TEXAS, Appellee Justices FitzGerald and Myers participating.

We MODIFY the trial court’s judgment to reflect a plea of “not true” and a finding of “true” to the first enhancement paragraph. Based on the Court’s opinion of this date, the judgment of the trial court, as modified, is AFFIRMED.

Judgment entered this 6th day of November, 2013.

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