Eric Ray-Martin Thibodeaux v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 28, 2024
• Docket: 09-23-00369-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-23-00369-CR __________________

ERIC RAY-MARTIN THIBODEAUX, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 128th District Court Orange County, Texas Trial Cause No. A220610-R __________________________________________________________________

MEMORANDUM OPINION

A grand jury indicted Appellant Eric Ray-Martin Thibodeaux (Appellant or

Thibodeaux) for burglary of a habitation, a first-degree felony. See Tex. Penal Code

Ann. § 30.02. The trial court found Thibodeaux indigent and appointed counsel.

Thibodeaux pleaded “not guilty” to the offense. A jury found Thibodeaux guilty as

charged, and Thibodeaux elected for the trial court to assess punishment. The State

filed a Notice of Intent to Enhance Defendant’s Punishment, providing to

Thibodeaux notice that the State intended to enhance Thibodeaux’s punishment

1 based on Thibodeaux’s prior felony offenses of possession of a controlled substance

and assault family violence. At the beginning of the sentencing hearing, the trial

court accepted the jury’s verdict of “guilty,” and rendered judgment in accordance

therewith. In the sentencing hearing, the trial court took judicial notice of a pre-

sentence investigation report that had been prepared, Thibodeaux pleaded “true” to

the enhancement allegations, and evidence was presented to the trial court regarding

sentencing. At the end of the sentencing hearing the trial court made an affirmative

finding that Thibodeaux used a deadly weapon in the burglary-of-a-habitation

offense, and the trial court sentenced Thibodeaux to forty years of confinement. The

written judgment included an assessment for court costs in the amount of $290 and

“Reimbursement Fees” in the amount of $860. Thibodeaux timely appealed. On

appeal, Thibodeaux argues that including the reimbursement fees in the final

judgment was error because they were a punishment and were not orally pronounced

in his presence. Thibodeaux requests that the judgment should be modified to delete

the reimbursement fees.1 The State argues that no part of the reimbursement fees

relate to Thibodeaux’s court-appointed attorney’s fees and that none of the cases

cited on appeal by Thibodeaux refer to reimbursement fees.

1 On appeal, Thibodeaux only challenges the assessment of $860 in reimbursement fees and does not challenge the $290 in court costs. 2 Analysis

Court costs are not punitive and do not have to be included in the oral

pronouncement as a precondition to their inclusion in the written judgment. Weir v.

State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009). The imposition of court costs

does not alter the punishment range, is authorized by statute, and is generally not

conditioned on a defendant’s ability to pay. See Tex. Code Crim. Proc. Ann. art.

42.16; Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011). “Only

statutorily authorized court costs may be assessed against a criminal defendant[.]”

Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014). Costs cannot be

imposed “for a service not performed or for a service for which a cost is not expressly

provided by law.” Tex. Code Crim. Proc. Ann. art. 103.002. Court costs are

supported if there is a bill of costs denominating the amount assessed and if those

costs are authorized by statute. See id. arts. 103.001-.002. Even so, certain

reimbursement fees, such as attorney’s fees, cannot be assessed against an indigent

defendant unless the court has subsequently determined the defendant has the

financial resources to pay. See id. arts. 26.04(p) (a defendant determined to be

indigent is presumed to remain indigent); 26.05(g) (providing for reimbursement of

fees for costs of legal services if the judge determines a defendant has financial

resources); Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013) (concluding

judgment should be reformed to remove assessment of attorney’s fees because there

3 was no finding in the record an indigent defendant could repay costs of court-

appointed counsel).

Since the appellate record here did not contain a bill of costs, we requested

one. See Tex. Code Crim. Proc. Ann. art. 103.006 (requiring a bill of costs); see also

Tex. R. App. P. 34.5(c)(1) (allowing for supplementation of clerk’s record even if

relevant item was omitted). The bill of costs filed as part of the supplemental clerk’s

record reflects “reimbursement fees” were assessed for something other than fees

for the court-appointed attorneys, and the bill shows the amount of $860: $795 for

“Psychiatric Testing[,]” $50 for “Orange Co Sheriff (R) $50[,]” and $15 for “Time

Pmt Reimbursement Fee $15 CCP 102.030[.]” The reimbursement fee of $50 for the

sheriff and $15 time payment were recoupment of costs authorized by statute, and

thus did not have to be orally pronounced. See Tex. Code Crim. Proc. Ann. arts.

102.011(a)(2) (authorizing $50 peace officer reimbursement fee); 102.030(a)

(authorizing $15 time payment reimbursement fee); see also Weir, 278 S.W.3d at

366-67. As for the reimbursement fee of $795 for the psychiatric testing, that

reimbursement fee is not a recoupment cost authorized by statute, and to the extent

the fee depended upon Thibodeaux’s ability to pay, there is nothing in the record

showing Thibodeaux’s indigent status changed.

The Texas Rules of Appellate Procedure authorize us to render the judgment

the trial court should have rendered. See Tex. R. App. P. 43.2(c). Because the record

4 does not support the award of $795 for the reimbursement of psychiatric testing, we

modify the judgment by deleting the reimbursement fees award of $860 and we

replace it with the amount of $65, because that is the total amount of the

reimbursement fees that were authorized by statute. Appellant’s issue is sustained in

part and overruled in part.

We also note that the trial court’s final judgment incorrectly states

“JUDGMENT OF CONVICTION BY COURT—WAIVER OF JURY TRIAL[,]”

that Thibodeaux pleaded “GUILTY” to the offense, and that the “Terms of Plea

Bargain” were “FORTY (40) YEARS IN AN INSTITUIONAL DIVISION,

TDCJ[.]” According to the record, Thibodeaux pleaded “not guilty” to the offense,

there was no plea bargain agreement, a jury found him guilty as charged in the

indictment, and the trial court sentenced Thibodeaux to forty years of confinement.

This Court has authority to modify the trial court’s judgment to correct clerical

errors. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim.

App. 1993); see also Kirkland v. State, 488 S.W.3d 379, 383-84 (Tex. App.

Beaumont 2016, no pet.) (citing Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim.

App. 1986) (an appellate court may correct the judgment on appeal when it has the

necessary data and evidence before it to do so)). We delete the portion of the

judgment stating “JUDGMENT OF CONVICTION BY COURT—WAIVER OF

JURY TRIAL” and substitute the following “JUDGMENT OF CONVICTION BY

5 JURY[,]” we delete the plea of “GUILTY” and substitute “NOT GUILTY[,]” and

we delete the language within the section “Terms of Plea Bargain[,]” but we

otherwise affirm the trial court’s judgment as modified.

AFFIRMED AS MODIFIED.

LEANNE JOHNSON Justice

Submitted on August 21, 2024 Opinion Delivered August 28, 2024 Do Not Publish

Before Johnson, Wright and Chambers, JJ.