IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0733-13
JOSE JUAN CARDENAS, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST DISTRICT COURT OF APPEALS HARRIS COUNTY
H ERVEY, J., delivered the opinion of the unanimous Court.
OPINION
In this case, Appellant, Jose Juan Cardenas, was convicted of aggravated robbery
with a deadly weapon. T EX. P ENAL C ODE § 29.03(a)(1). The judgment of conviction
ordered him to pay court costs in the amount of $294. We granted Appellant’s petition for
discretionary review to determine whether the court of appeals erred when it held that the
record supported the assessment of $294 in court costs and to construe an article of the
Texas Code of Criminal Procedure that allows a convicted defendant to file a motion to Cardenas–2
“correct costs.”1 See T EX. C ODE C RIM. P ROC. art 103.008. We will affirm the judgment of
the court of appeals.
I. B ASIS FOR THE ASSESSED COURT COSTS
1 The exact grounds for review upon which we grant include:
(1) The First Court of Appeals decision to support the sufficiency of the evidence in a court cost challenge has created two new rules of law which are unprecedented in appellate practice:
1A. Can a Court of Appeals order a bill of costs to be created for appellate purposes only?
1B. Can a Court of Appeals consider evidence that was unavailable to the trial court?
1C. Can a Court of Appeals create facts in the record that are entirely absent from the record and are untrue?
(2) Is the Court of Appeals determination that a criminal defendant has an available remedy for court cost issues through Tex. Code Crim. Proc. 103.008 also a remedy for insufficient evidence in light of the following questions:
2A. Assuming bills of costs need be generated only upon appeal, how can a non-appealing defendant challenge errors in assessed costs under Article 103.008?
2B. Does the procedure under Article 103.008 allow a defendant to make constitutional challenges to assessed court costs?
2C. Is a defendant entitled to an evidentiary hearing in an Article 103.008 challenge?
2D. Under Article 103.008, errors are corrected by the court in which the case is pending or was last pending – can this be the appeals court?
2E. Is there any appeal from an Article 103.008 hearing? Cardenas–3
A. This Court’s holdings from Johnson v. State control with respect to the basis of the assessed court costs in this case, and the bill of costs provides a sufficient basis to sustain the court costs.
In a companion case, we recently addressed an appellant’s claim challenging the
bases for the assessment of mandatory court costs. See Johnson v. State, No. PD-0193-13
(Tex. Crim. App. 2014). In Johnson, we held, in part, that a bill of costs need not be
included in the record to support assessed court costs (although including a bill of costs
for review or adding it to the record by supplementation is preferable) and that an
appellate court can nonetheless order a trial-court clerk to prepare a bill of costs to be
included as a supplemental clerk’s record.
Although some of the facts of this case are different, our holdings in Johnson
nonetheless control the outcome of Appellant’s grounds for review challenging his
assessed court costs because the bill of costs in the supplemental record supports those
costs. Further, as in Johnson, we note that a number of statutes support the assessed
amount of court costs.2 As a result, we overrule Appellant’s grounds for review 1A–1B.
In ground for review 1C, Appellant argues that the court of appeals
mischaracterized the record and “created” facts to dispose of the case before it. He goes
on to assert that “[t]he Court of Appeals’ creation of facts is anathema to the [Standards
for Appellate Conduct] and every basic concept of appellate decision making[,]” and that
2 See TEX . LOC. GOV ’T CODE §§ 133.102(a) (2004), 133.105(a), 133.107 (2007); TEX . CODE CRIM . PROC. art. 102.005(a), (f), 102.0045, 102.0169; TEX . CODE CRIM . PROC. arts. 102.011(a)(1), 102.011(a)(5)–(6). Cardenas–4
the caselaw “is clear that an appellate litigant will be chastised, could be sanctioned by
the State Bar, and could have his brief struck if the record is not cited pursuant to the
[Texas Disciplinary Rules of Professional Conduct.]” Moreover, Appellant avers that the
cited rules “apply to judges on the Court of Appeals,” and to support his argument, he
quotes a civil case from the Fourteenth District Court of Appeals stating that “the blatant
misrepresentation and mischaracterization of the facts in [the court’s opinion] . . . is
inexcusable.” See Schlafly v. Schlafly, 33 S.W.3d 863 872–74 (Tex. App.—Houston [14th
Dist.] 2000, no pet.). Appellant concludes that
To uphold the sufficiency of the court costs without a cost bill, and comply with due process, the Court of Appeals needed something to show that [Appellant] had in fact had notice and an opportunity to be heard in the trial court. The only problem was [that] there was nothing in the record to support that notion. Instead, the Court of Appeals chose an alarming route - which was to make an assumption and then recite it as fact. This undermines the entirety of their (sic) opinion. [Appellant] was denied due process, and there is no evidence in the record before the trial court that reflected the court costs.
Appellant’s Brief on the Merits at 13 (emphasis in original). The State responds that
“[u]nlike the overly zealous assertions [of Appellant], the appellate court did not create
any facts[,] and the suggestion that it would not only create facts, but outright fabricate
false evidence, is spurious.” Similar to Appellant’s first two grounds for review, our
holdings in Johnson also control the outcome of this question, despite Appellant’s claims
that the court of appeals fabricated facts and violated his right to due process of law.
Convicted defendants have constructive notice of mandatory court costs set by statute and Cardenas–5
the opportunity to object to the assessment of court costs against them for the first time on
appeal or in a proceeding under Article 103.008 of the Texas Code of Criminal
Procedure. Appellant’s right to due process of law has been satisfied with respect to
notice and an opportunity to be heard regarding the imposition of court costs. See
Johnson, PD-0193-13, slip op. at 5, 10–11 (Tex. Crim. App. 2014) (holding that a
criminal defendant has constructive notice of mandatory court-costs statutes, that
supplementation of a record on appeal with a bill of costs is proper given the special
nature of court costs, and that such supplementation does not prejudice a criminal
defendant); see also Harrell v. State, 286 S.W.3d 315, 319–21 (Tex. 2009) (holding that
an inmate is entitled to notice and an opportunity to be heard when the State attempts to
withdraw funds from an inmate’s trust account; however, neither “need occur before the
funds are withdrawn”).
A RTICLE 103.008 OF THE T EXAS C ODE OF C RIMINAL P ROCEDURE
Appellant also raises a number of grounds for review that would require us to
construe Article 103.008.3 However, we decline to reach the merits of those grounds for
3 Article 103.008 states,
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IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0733-13
JOSE JUAN CARDENAS, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST DISTRICT COURT OF APPEALS HARRIS COUNTY
H ERVEY, J., delivered the opinion of the unanimous Court.
OPINION
In this case, Appellant, Jose Juan Cardenas, was convicted of aggravated robbery
with a deadly weapon. T EX. P ENAL C ODE § 29.03(a)(1). The judgment of conviction
ordered him to pay court costs in the amount of $294. We granted Appellant’s petition for
discretionary review to determine whether the court of appeals erred when it held that the
record supported the assessment of $294 in court costs and to construe an article of the
Texas Code of Criminal Procedure that allows a convicted defendant to file a motion to Cardenas–2
“correct costs.”1 See T EX. C ODE C RIM. P ROC. art 103.008. We will affirm the judgment of
the court of appeals.
I. B ASIS FOR THE ASSESSED COURT COSTS
1 The exact grounds for review upon which we grant include:
(1) The First Court of Appeals decision to support the sufficiency of the evidence in a court cost challenge has created two new rules of law which are unprecedented in appellate practice:
1A. Can a Court of Appeals order a bill of costs to be created for appellate purposes only?
1B. Can a Court of Appeals consider evidence that was unavailable to the trial court?
1C. Can a Court of Appeals create facts in the record that are entirely absent from the record and are untrue?
(2) Is the Court of Appeals determination that a criminal defendant has an available remedy for court cost issues through Tex. Code Crim. Proc. 103.008 also a remedy for insufficient evidence in light of the following questions:
2A. Assuming bills of costs need be generated only upon appeal, how can a non-appealing defendant challenge errors in assessed costs under Article 103.008?
2B. Does the procedure under Article 103.008 allow a defendant to make constitutional challenges to assessed court costs?
2C. Is a defendant entitled to an evidentiary hearing in an Article 103.008 challenge?
2D. Under Article 103.008, errors are corrected by the court in which the case is pending or was last pending – can this be the appeals court?
2E. Is there any appeal from an Article 103.008 hearing? Cardenas–3
A. This Court’s holdings from Johnson v. State control with respect to the basis of the assessed court costs in this case, and the bill of costs provides a sufficient basis to sustain the court costs.
In a companion case, we recently addressed an appellant’s claim challenging the
bases for the assessment of mandatory court costs. See Johnson v. State, No. PD-0193-13
(Tex. Crim. App. 2014). In Johnson, we held, in part, that a bill of costs need not be
included in the record to support assessed court costs (although including a bill of costs
for review or adding it to the record by supplementation is preferable) and that an
appellate court can nonetheless order a trial-court clerk to prepare a bill of costs to be
included as a supplemental clerk’s record.
Although some of the facts of this case are different, our holdings in Johnson
nonetheless control the outcome of Appellant’s grounds for review challenging his
assessed court costs because the bill of costs in the supplemental record supports those
costs. Further, as in Johnson, we note that a number of statutes support the assessed
amount of court costs.2 As a result, we overrule Appellant’s grounds for review 1A–1B.
In ground for review 1C, Appellant argues that the court of appeals
mischaracterized the record and “created” facts to dispose of the case before it. He goes
on to assert that “[t]he Court of Appeals’ creation of facts is anathema to the [Standards
for Appellate Conduct] and every basic concept of appellate decision making[,]” and that
2 See TEX . LOC. GOV ’T CODE §§ 133.102(a) (2004), 133.105(a), 133.107 (2007); TEX . CODE CRIM . PROC. art. 102.005(a), (f), 102.0045, 102.0169; TEX . CODE CRIM . PROC. arts. 102.011(a)(1), 102.011(a)(5)–(6). Cardenas–4
the caselaw “is clear that an appellate litigant will be chastised, could be sanctioned by
the State Bar, and could have his brief struck if the record is not cited pursuant to the
[Texas Disciplinary Rules of Professional Conduct.]” Moreover, Appellant avers that the
cited rules “apply to judges on the Court of Appeals,” and to support his argument, he
quotes a civil case from the Fourteenth District Court of Appeals stating that “the blatant
misrepresentation and mischaracterization of the facts in [the court’s opinion] . . . is
inexcusable.” See Schlafly v. Schlafly, 33 S.W.3d 863 872–74 (Tex. App.—Houston [14th
Dist.] 2000, no pet.). Appellant concludes that
To uphold the sufficiency of the court costs without a cost bill, and comply with due process, the Court of Appeals needed something to show that [Appellant] had in fact had notice and an opportunity to be heard in the trial court. The only problem was [that] there was nothing in the record to support that notion. Instead, the Court of Appeals chose an alarming route - which was to make an assumption and then recite it as fact. This undermines the entirety of their (sic) opinion. [Appellant] was denied due process, and there is no evidence in the record before the trial court that reflected the court costs.
Appellant’s Brief on the Merits at 13 (emphasis in original). The State responds that
“[u]nlike the overly zealous assertions [of Appellant], the appellate court did not create
any facts[,] and the suggestion that it would not only create facts, but outright fabricate
false evidence, is spurious.” Similar to Appellant’s first two grounds for review, our
holdings in Johnson also control the outcome of this question, despite Appellant’s claims
that the court of appeals fabricated facts and violated his right to due process of law.
Convicted defendants have constructive notice of mandatory court costs set by statute and Cardenas–5
the opportunity to object to the assessment of court costs against them for the first time on
appeal or in a proceeding under Article 103.008 of the Texas Code of Criminal
Procedure. Appellant’s right to due process of law has been satisfied with respect to
notice and an opportunity to be heard regarding the imposition of court costs. See
Johnson, PD-0193-13, slip op. at 5, 10–11 (Tex. Crim. App. 2014) (holding that a
criminal defendant has constructive notice of mandatory court-costs statutes, that
supplementation of a record on appeal with a bill of costs is proper given the special
nature of court costs, and that such supplementation does not prejudice a criminal
defendant); see also Harrell v. State, 286 S.W.3d 315, 319–21 (Tex. 2009) (holding that
an inmate is entitled to notice and an opportunity to be heard when the State attempts to
withdraw funds from an inmate’s trust account; however, neither “need occur before the
funds are withdrawn”).
A RTICLE 103.008 OF THE T EXAS C ODE OF C RIMINAL P ROCEDURE
Appellant also raises a number of grounds for review that would require us to
construe Article 103.008.3 However, we decline to reach the merits of those grounds for
3 Article 103.008 states,
(a) On the filing of a motion by a defendant not later than one year after the date of the final disposition of a case in which costs were imposed, the court in which the case is pending or was last pending shall correct any error in the costs.
(b) The defendant must notify each person affected by the correction of costs in the same manner as notice of a similar motion is given in a civil action.
TEX . CODE CRIM . PROC. art. 103.008. Cardenas–6
review because, although the court of appeals briefly mentioned Article 103.008 in its
opinion, Appellant never filed a motion under Article 103.008 triggering its provisions,
and the court of appeals did not construe Article 103.008 in its opinion.
Grounds for review 2A–2E are overruled.
C ONCLUSION
The court costs assessed against Appellant in the amount of $294 are supported by
the bill of costs contained in the supplemental clerk’s record. As a result, we decline to
reach Appellant’s other grounds for review, and we affirm the judgment of the court of
appeals.
Hervey, J.
Delivered: February 26, 2014
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