Candace Delores Rios v. the State of Texas

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-21-00266-CR

CANDACE DELORES RIOS, Appellant v.

THE STATE OF TEXAS, Appellee

From the 19th District Court McLennan County, Texas Trial Court No. 2016-20-C1

DISSENTING OPINION

The only “properly” Certified Bill of Costs in this appellate record that I have been

able to find is in the amount of $505.00 with the entire amount showing as due. (CR 95).

The Court references certified copies of a document labeled as a Bill of Costs dated after

the abatement order as a Certified Bill of Costs. I do not believe that it is properly

certified. It is merely certified as a true and correct copy of a document in the District

Clerk’s file. That, alone, does not make it a Certified Bill of Costs. See TEX. CODE CRIM.

PROC. art. 103.006; Johnson v. State, 423 S.W.3d 385, 392-93 (Tex. Crim. App. 2014) (discussing the characteristics of a bill of costs according to the statutes). Specifically, the

document which is being certified as a true and correct copy does not contain the

certification regarding the content of the document, like the one referenced above at page

95 of the Clerk’s Record, for which the signatory attested:

I hereby certify the above to be a correct account of the cost chargeable in the above entitled and numbered cause up to this date.

Moreover, the judgment from which this appeal was taken, including the “Order

to Withdraw Funds” inversely incorporated into the judgment, assesses $475.00 of “Court

costs, fees, and/or fines and/or restitution. . . .” Until that judgment is corrected, or that

amount is paid, there remains a live issue regarding the proper amount of such court

costs in this appeal. Thus, whatever the referenced document is, it does not moot this

issue.

Finally, as to costs, the manner in which we arrived at this point, via an abatement

of the appeal and a remand to the trial court to review the assessment of mandatory court

costs, remains subject to questions of its applicability and whether it was appropriate. See

Carnley v. State, No. 10-21-00104-CR, 2023 Tex. App. Lexis 8896, *4-46 (Tex. App.—Waco

Nov. 30, 2023) (publish) (Gray, C.J., dissenting). Nevertheless, and regardless of the

outcome of that question, the fact remains that Rios has a judgment which appears to

assess $475.00 of court costs against her, and she is entitled to a resolution of the issue as

raised in the appeal regarding whether that amount is correct even if she has paid some

Rios v. State Page 2 portion of the court costs. 1

Accordingly, I cannot join the Court’s opinion or judgment and must respectfully

dissent. 2

TOM GRAY Chief Justice

Dissent delivered and filed December 14, 2023

1 It does not appear that Rios was given the opportunity to respond to the jurisdictional mootness argument. Moreover, I note that if the funds were withdrawn from her inmate account based upon the withholding order, payment of the assessed court costs could hardly be said to be voluntary.

2 The irony in this appeal is that after abatement, on remand to the trial court, the appellant convinced the trial court that it had erroneously used the costs applicable to an offense that occurred on or after January 1, 2020, when it should have used an older costs statute because the offense occurred in 2015. The trial court, to correct its perceived error, used the costs schedule applicable at the time the offense was committed. But the Court, with one justice dissenting, has held that for an offense committed in 2015 but for which guilt and punishment was determined on or after January 1, 2020, the new costs schedule should be utilized. See Bradshaw v. State, 675 S.W.3d 78 (Tex. App.—Waco 2023, pet. filed).

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