Elizabeth Clemons v. State

Opinion

Affirm and Opinion Filed November 6, 2013

In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-01401-CR

ELISABETH ANNE CLEMONS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 7 Dallas County, Texas Trial Court Cause No. F10-73435-Y

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

Elisabeth Anne Clemons appeals from the revocation of her community supervision. In a

single issue, appellant contends there is insufficient evidence in the record to support the trial

court’s order for appellant to pay $444 in court costs. We affirm the trial court’s judgment.

Appellant waived a jury and pleaded guilty to prostitution with three or more prior

prostitution convictions. See TEX. PENAL CODE ANN. § 43.02(a)(1), (c)(2) (West 2011). The

trial court assessed punishment at two years’ confinement in state jail, probated for two years.

The trial court’s judgment also included an order that appellant pay $444 in court costs. The

State later moved to revoke appellant’s community supervision, alleging she violated the terms of her community supervision. Appellant pleaded true to the allegation, and the trial court

revoked appellant’s community supervision and sentenced appellant to two years’ confinement

in state jail.

Appellant contends the evidence is insufficient to support the trial court’s order that she

pay $444 in court costs because the clerk’s record does not contain a bill of costs. The State

responds that although $200 of the court costs represents attorney’s fees, and appellant is

presumed to be indigent, she does not specifically challenge this amount on those grounds and,

in any event, the remaining $244 of the costs is legislatively mandated and should remain in the

judgment.

The $444 in court costs, which include $200 in attorney fees, were included in the June

13, 2011 judgment ordering community supervision and included again in the judgment revoking

supervision. The time for challenging the assessment of the $200 in attorney’s fees has passed.

See Wiley v. State, No. PD-1728-12, 2013 WL 5337093, at *5 (Tex. Crim. App. Sept. 25, 2013).

Therefore, we decline the State’s suggestion that the judgment be modified to delete the $200

attorney’s fees. Id.

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 a supplemental record containing a

‐2‐ 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 her sole 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 records is not a “proper bill 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 judgment. We reject both arguments.

Appellant first contends that the bill of costs in the record is not a “proper bill of costs”

because it is “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

‐3‐ 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 the costs were entered in the judgment. 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.

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, 2013 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.

We affirm the trial court’s judgment.

Do Not Publish TEX. R. APP. P. 47 121401F.U05 /Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE

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

JUDGMENT

ELISABETH ANNE CLEMONS, Appeal from the Criminal District Court Appellant No. 7 of Dallas County, Texas (Tr.Ct.No. F10-73435-Y). No. 05-12-01401-CR V. Opinion delivered by Justice FitzGerald, Justices Francis and Myers participating. THE STATE OF TEXAS, Appellee

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

Judgment entered November 6, 2013

/Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE

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