Dearion De'shon Dews v. State

• Court: Court of Appeals of Texas
• Decided: July 10, 2013
• Docket: 04-12-00240-CR
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-12-00240-CR

Dearion De’shon DEWS, Appellant

v. The The STATE of Texas, Appellee

From the 7th District Court, Smith County, Texas Trial Court No. 007-1089-11 Honorable Kerry L. Russell, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice

Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Patricia O. Alvarez, Justice

Delivered and Filed: July 10. 2013

AFFIRMED AS MODIFIED

Appellant Dearion De’shon Dews was indicted for the felony offense of attempted sexual

assault. Appellant pled not guilty and the case was tried to a jury. The jury returned a verdict of

guilty and assessed punishment at eight years’ confinement in the Texas Department of Criminal

Justice—Institutional Division and a $10,000.00 fine. The trial court imposed court costs of

$369.00 and ordered that the costs be withdrawn from Appellant’s inmate trust account. On

appeal, Appellant argues that the trial court erred in imposing court costs not supported by a bill

of costs and in ordering that court costs be withdrawn from his inmate trust account. We modify 04-12-00240-CR

the trial court’s judgment and order to withdraw funds to reflect court costs in the amount of

$269.00, and we affirm them as modified.

IMPOSITION OF COURT COSTS

From what we can discern from his brief, Appellant seems to challenge the sufficiency of

the evidence supporting the court costs included in the trial court’s judgment. 1 Appellant asserts

that because the record contains no bill of costs, the trial court erred in imposing costs. After

Appellant filed his brief, the State supplemented the appellate record with a bill of costs, which

itemizes court costs of $369.00. The State concedes that the trial court’s imposition of court costs

includes an erroneous charge of $100.00. It requests we modify the judgment to reflect $269.00

in court costs.

A. Standard of Review

“The obligation of a convicted person to pay court costs is established by statute.” Solomon

v. State, 392 S.W.3d 309, 310 (Tex. App.—San Antonio 2012, no pet.) (op. on reh’g) (citing TEX.

CODE CRIM. PROC. ANN. art. 103.001 (West 2006)). However, a trial court’s imposition of court

costs must be supported by sufficient evidence. Id.; see Mayer v. State, 309 S.W.3d 552, 554–56

(Tex. Crim. App. 2010). “We review the sufficiency of the evidence to support the award of costs

by viewing all record evidence in the light most favorable to the award.” Cardenas v. State, No.

01-11-01123-CR, 2013 WL 1164365, at *4 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013, no.

pet. h.) (op. on reh’g); accord Mayer, 309 S.W.3d at 557; Thomas v. State, No. 01-12-00487-CR,

2013 WL 1163980, at *3 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013, no pet. h.). An appellant

1 At one point in his brief, Appellant states that “the record does not contain any information from which the Court can determine the basis for the $369 imposed” and that “it then follows that the costs ordered in the withholding are without any legal or factual basis.”

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may raise the issue of insufficient evidence to support the trial court’s assessment of court costs

for the first time on appeal. See Mayer, 309 S.W.3d at 556; Solomon, 392 S.W.3d at 310.

B. Analysis

A district court jury convicted Appellant of the felony offense of attempted sexual assault.

See TEX. PENAL CODE ANN. §§ 15.01 (West 2011) (criminal attempt), 22.011(f) (sexual assault).

The trial court’s judgment assessed court costs in the amount of $369.00. The following fees and

costs are legislatively mandated as a result of Appellant’s conviction:

Jury Service Fee $4.00 Crim. Proc. art. 102.0045(a) Clerk’s Fee $40.00 Crim. Proc. art. 102.005(a) Records Management Fee $22.50 Crim. Proc. art. 102.005(f)(1) Records Management & Preservation Fee (District $2.50 Crim. Proc. art. 102.005(f)(2) Court) Warrant Fee $50.00 Crim. Proc. art. 102.011(a)(2) Technology Fee $4.00 Crim. Proc. art. 102.0169(a) Courthouse Security Fee $5.00 Crim. Proc. art. 102.017(a) Consolidated Court Fees $133.00 Loc. Gov’t § 133.102(a)(1) State Judiciary Fund Fee $5.40 Loc. Gov’t § 133.105(a) County Judiciary Fund Fee $0.60 Loc. Gov’t § 133.105(b) Indigent Defense Court Cost $2.00 Loc. Gov’t § 133.107(a) Total Costs $269.00

See TEX. CODE CRIM. PROC. ANN. art. 102.0045(a) (West. Supp. 2012); id. arts. 102.005(a),

102.005(f)(1), 102.005(f)(2) (West 2006); id. arts. 102.011(a)(2), 102.0169(a), 102.017(a) (West

Supp. 2012); TEX. LOC. GOV’T CODE ANN. § 133.102(a)(1) (West Supp. 2012); id. §§ 133.105(a),

133.105(b) (West 2008); id. § 133.107(a) (West Supp. 2012); see also Cardenas, 2013 WL

1164365, at *6; Thomas, 2013 WL 1163980, at *4. These fees and costs total $269.00. The State

concedes that the trial court’s assessment of court costs includes an erroneous charge of $100.00.

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C. Conclusion

Viewing the evidence in the light most favorable to the award, we conclude that sufficient

evidence supports the judgment awarding court costs in the amount of $269.00. See Mayer, 309

S.W.3d at 557; Solomon, 392 S.W.3d at 310; Cardenas, 2013 WL 1164365, at *4; Thomas, 2013

WL 1163980, at *3. Therefore, we modify the trial court’s judgment to reflect court costs in the

amount of $269.00.

ORDER TO WITHDRAW FUNDS

Appellant also argues that the trial court erred in ordering that court costs be withdrawn

from his inmate trust account. Specifically, Appellant asserts that the withdrawal order violated

his constitutional due process rights because without a bill of costs, he was not informed of the

statutory basis for the withdrawal.

Article 103.001 of the Texas Code of Criminal Procedure provides that “[a] cost is not

payable by the person charged with the cost until a written bill is produced or is ready to be

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

who is entitled to receive payment for the cost.” TEX. CODE CRIM. PROC. ANN. art. 103.001;

accord Owen v. State, 352 S.W.3d 542, 547 (Tex. App.—Amarillo 2011, no pet.). After Appellant

filed his brief, the trial court clerk filed a supplemental clerk’s record that contains a signed bill of

costs. Appellant did not file a reply brief or otherwise object to the accuracy or authenticity of the

signed bill of costs. Because the record now before us contains a bill of costs, Appellant’s

complaint that the withdrawal order is not supported by a signed bill of costs is moot.

However, the order to withdraw funds directs the Texas Department of Criminal Justice to

withdraw the amount of $10,369.00—consisting of a $10,000.00 fine and $369.00 in court costs—

from Appellant’s inmate trust account. Appellant does not contest the $10,000.00 fine. As

discussed herein, the imposition of court costs in the amount of $269.00 is supported by statute. -4- 04-12-00240-CR

Accordingly, we modify the order to withdraw funds from Appellant’s inmate trust account to

reflect the amount of $10,269.00—consisting of a fine of $10,000.00 and court costs of $269.00.

CONCLUSION

Viewed in the light most favorable to the award, the record provides a factual basis for the

trial court’s assessment of $269.00 in court costs. Therefore, we modify the trial court’s judgment

and the order to withdraw funds to reflect court costs in the amount of $269.00 and we affirm them

as modified.

Patricia O. Alvarez, Justice

DO NOT PUBLISH

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