David Moreno v. State

Opinion

AFFIRMED as MODIFIED; Opinion Filed January 3, 2014.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-00668-CR No. 05-13-00670-CR

DAVID MORENO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 363rd Judicial District Court Dallas County, Texas Trial Court Cause Nos. F12-35133-W, F12-35134-W

MEMORANDUM OPINION Before Justices O’Neill, Myers, and Brown Opinion by Justice Myers

David Moreno waived a jury and pleaded guilty to aggravated assault with serious bodily

injury involving family violence and a deadly weapon and aggravated assault with a deadly

weapon. See TEX. PENAL CODE ANN. § 22.02(a) (West 2011). In each case, the trial court

assessed punishment, enhanced by a prior felony conviction, at forty-five years’ imprisonment.

The trial court’s judgment also includes an order that appellant pay $244 in court costs in each

case. In three issues, appellant contends there is insufficient evidence in the record to support the

trial court’s orders that he pay $244 in court costs, and one of the judgments should be modified

to reflect appellant’s plea and the trial court’s finding on the enhancement paragraph. We modify the trial court’s judgment in cause no. 05-13-00668-CR and affirm as modified. We

affirm the trial court’s judgment in cause no. 05-13-00670-CR.

COURT COSTS

In his first two issues, appellant contends the evidence is insufficient to support the trial

court’s judgment that appellant pay $244 in court costs in each case because the clerk’s records

do not contain bills of costs. The State responds that the record contains sufficient evidence in

support of a portion of the amount of costs assessed by the trial court in each case.

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 records in these cases do not contain copies of the bills of costs. We,

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

certified bill of costs associated with each 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

have been omitted). Appellant’s complaints that the evidence is insufficient to support the

imposition of costs because the clerk’s records did not contain bills of costs are now moot. See

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

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

overrule appellant’s first and second issue.

-2- MODIFY JUDGMENT

In his third issue, appellant contends the judgment in cause no. 05-13-00668-CR should

be modified to show he pleaded true to the enhancement paragraph and the trial court found the

enhancement paragraph true. The State responds that the judgment should be modified as

appellant requests.

Appellant pleaded true to the enhancement paragraph contained in each indictment at the

same time he pleaded guilty to the offenses. The trial court found appellant guilty of the two

offenses and found the enhancement paragraph true. The judgment, however, omits the plea and

finding on the enhancement paragraph. Thus, the judgment is not correct. We sustain

appellant’s third issue. We modify the judgment to show appellant pleaded true to one

enhancement paragraph and the trial court found the enhancement paragraph true. See TEX. R.

APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State,

813 S.W.2d 526, 529–30 (Tex. App.─Dallas 1991, pet. ref’d).

CONCLUSION

In cause no. 05-13-00668-CR, we affirm the trial court’s judgment as modified. In cause

no. 05-13-00670-CR, we affirm the trial court’s judgment.

/s/ Lana Myers LANA MYERS JUSTICE

Do Not Publish TEX. R. APP. P. 47 130668F.U05

-3- Court of Appeals Fifth District of Texas at Dallas

JUDGMENT

DAVID MORENO, Appellant Appeal from the 363rd Judicial District Court of Dallas County, Texas (Tr.Ct.No. No. 05-13-00668-CR V. F12-35133-W). Opinion delivered by Justice Myers, THE STATE OF TEXAS, Appellee Justices O’Neill and Brown participating.

Based on the Court’s opinion of this date, the trial court’s judgment is MODIFIED to show a plea of true to the first enhancement paragraph and findings of true to the first enhancement paragraph.

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

We ORDER the trial court to enter a new judgment reflecting these modifications.

Judgment entered January 3, 2014.

/ Lana Myers/ LANA MYERS JUSTICE

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

DAVID MORENO, Appellant Appeal from the 363rd Judicial District Court of Dallas County, Texas (Tr.Ct.No. No. 05-13-00670-CR V. F12-35134-W). Opinion delivered by Justice Myers, THE STATE OF TEXAS, Appellee Justices O’Neill and Brown participating.

Based on the Court’s opinion of this date, the trial court’s judgment is AFFIRMED.

/Lana Myers/ LANA MYERS JUSTICE

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