Clark Deonte Winfield v. State

Opinion

Affirmed as Modified; Opinion Filed October 30, 2013.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-01721-CR

CLARK DEONTE WINFIELD, II, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 195th Judicial District Court Dallas County, Texas Trial Court Cause No. F07-73268-N

MEMORANDUM OPINION Before Justices FitzGerald, Francis, and Myers Opinion by Justice Myers

Clark Deonte Winfield, II was convicted of aggravated sexual assault of a child younger

than fourteen years. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i) (West Supp. 2012). The

trial court assessed punishment at five years’ imprisonment and a $2,000 fine. The trial court’s

judgment also includes an order that appellant pay $473 in court costs. In three issues, appellant

contends there is insufficient evidence in the record to support the trial court’s order that he pay

$473 in court costs and the judgment should be modified to correct several errors. We modify

the trial court’s judgments and affirm as modified. In his first issue, appellant contends the evidence is insufficient to support the trial court’s

judgment that appellant pay $473 in court costs because the clerk’s record does not contain a bill

of costs. The State responds that appellant is not entitled to have the court costs removed from

the judgment.

If a criminal action is appealed, “an officer of the court shall certify and sign a bill of

costs stating the costs that have been accrued and send the bill of costs to the court to which the

action or proceeding is . . . appealed.” TEX. CODE CRIM. PROC. ANN. art. 103.006 (West 2006).

Costs may not be collected from the person charged with the costs until a written bill, containing

the items of cost, is produced and signed by the officer who charged the cost or the officer

entitled to receive payment for the cost. Id. art. 103.001.

The clerk’s record in this case initially did not contain a copy of the bill of costs. We,

however, ordered the Dallas County District Clerk to file supplemental records containing a

certified bill of costs associated with this case, and the clerk did so. See TEX. R. APP. P.

34.5(c)(1) (rules of appellate procedure allow supplementation of clerk’s record if relevant items

has been omitted). Appellant’s complaint that the evidence is insufficient to support the

imposition of costs because the clerk’s record did not contain a bill of costs is now moot. See

Coronel v. State, No. 05-12-00493-CR, 2013 WL 3874446, at *4 (Tex. App.––Dallas July 29,

2013, no pet. h.); Franklin v. State, 402 S.W.3d 894, 895 (Tex. App.—Dallas 2013, no pet.). We

overrule his first issue.

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

an objection that the bill of costs in the supplemental record is not a “proper bill[s] of costs” and

the bill of costs was not filed in the trial court or brought to the trial court’s attention before costs

were entered into the judgments. We reject both arguments.

-2- Appellant first contends that the bill of costs in the record is not a “proper bill[s] of costs”

because they are “unsigned, unsworn computer printout[s].” Appellant acknowledges the district

clerk has certified that the documents constitute costs that have accrued to date,” but says this

does not “set out the costs as required by statute.” While the code of criminal procedure requires

a record to be kept, the code is silent on the form of such a record except to the extent it must be

certified and signed “by the officer who charged the costs or the officer who is entitled to receive

payment for the cost.” See TEX. CODE CRIM. PROC. ANN. art. 103.001, .006; Coronel, 2013 WL

3874446, at *4.

Here, the district clerk provided a “Bill of Costs Certification” containing the costs that

have accrued to date in the respective case, and the documents are certified and signed by the

district clerk. Because the documents meet the mandate of the code of criminal procedure, we

conclude appellant’s objection that the bill of costs is not “proper” lacks merit. See Coronel,

2013 WL 3874446, at *4.

Appellant further 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 judgments. 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.

See id. at *5.

Article 42.16 provides that the judgment shall “adjudge the costs against the defendant,

and order the collection thereof as in other cases.” TEX. CODE CRIM. PROC. ANN. art. 42.16

(West 2006). Court costs, as reflected in a certified bill of costs, are not part of the sentence, do

not alter the range of punishment, and need not be orally pronounced or incorporated by

reference in the judgment to be effective. Armstrong v. State, 340 S.W.3d 759, 766 (Tex. Crim.

-3- App. 2011); Coronel, 2013 WL 3874446, at *5. The code of criminal procedure does not require

the bill of costs be filed at the time the trial court signs the judgment of conviction; it only

requires a bill of costs be produced if a criminal case is appealed or costs are collected. See

Coronel, 2003 WL 3874446, at *5. Because there is no requirement that the costs be presented

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

merit. See id. We overrule appellant’s objection to the supplemented record.

In his second and third issues, appellant asks that we modify the judgment to reflect he

entered a not guilty plea and to correctly identify the trial judge and the prosecutor for the

proceedings. The State agrees the judgment should be modified as appellant requests.

The record shows the Honorable Gary Stephens presided over the plea hearing, where

appellant entered a not guilty plea, and the punishment hearing. Sherre Sweet represented the

State at both hearings. The judgment, however, incorrectly states appellant pleaded guilty, the

Honorable Fred Tinsley was the presiding judge, and Amy Derrick was the attorney for the State.

We sustain appellant’s second and third issues. We modify the judgment to show the presiding

judge was the Honorable Gary Stephens, the attorney for the State was Sherre Sweet, and the

plea to the offense was not guilty.

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

/s/ Lana Myers LANA MYERS JUSTICE

Do Not Publish TEX. R. APP. P. 47 121721F.U05

-4- Court of Appeals Fifth District of Texas at Dallas

JUDGMENT

CLARK DEONTE WINFIELD, II, Appeal from the 195th Judicial District Appellant Court of Dallas County, Texas (Tr.Ct.No. F07-73268-N). No. 05-12-01721-CR V. Opinion delivered by Justice Myers, Justices FitzGerald and Francis THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, the trial court’s judgment is MODIFIED as follows:

The section entitled “Judge Presiding” is modified to show “Hon. Gary Stephens.”

The section entitled “Attorney for State” is modified to show “Sherre Sweet.”

The section entitled “Plea to Offense” is modified to show “Not Guilty.”

Judgment entered October 30, 2013.

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