Guy David Christian v. State

Opinion

MODIFY and AFFIRM; and Opinion Filed November 7, 2013.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-01499-CR

GUY DAVID CHRISTIAN, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F12-52845-Q

MEMORANDUM OPINION Before Justices Bridges, Fillmore, and Lewis Opinion by Justice Fillmore Guy David Christian pleaded guilty to burglary of a building, and the trial court assessed

punishment of two years’ confinement and ordered him to pay $219 in court costs. In his first

point of error, Christian requests that we reform the trial court’s judgment to accurately reflect

there was not a plea bargain agreement in this case. In his second point of error, Christian asserts

there is insufficient evidence in the record to support the trial court’s order that he pay $219 in

court costs and, therefore, the judgment should be reformed to delete the order that he pay court

costs. We modify the trial court’s judgment to reflect there was not a plea bargain agreement in

this case. As modified, we affirm the trial court’s judgment. We issue this memorandum

opinion because the law to be applied in this case is well settled. See TEX. R. APP. P. 47.4. Modification of Judgment

Christian was indicted for burglary of a building. He pleaded guilty to the charge and

went “open” to the trial court for punishment. Christian initially requested probation and drug

treatment. He subsequently refused to be interviewed by the probation department and withdrew

his request for probation. The trial court sentenced Christian to two years’ confinement. The

portion of the trial court’s judgment titled “Terms of Plea Bargain:” states “2 years state jail.”

In his first point of error, Christian requests that we modify the trial court’s judgment to

reflect there was not a plea bargain agreement in this case. We may modify a trial court’s

written judgment to correct a clerical error when we have the necessary information before us to

do so. 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). Accordingly,

we resolve Christian’s first point of error in his favor and modify the trial court’s judgment to

reflect there was not a plea bargain as to punishment.

Court Costs

In his second point of error, Christian requests we reform the trial court’s judgment to

delete the requirement that he pay court costs because the clerk’s record does not contain a bill of

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

stating the costs that have 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 did not contain a copy of the bill of costs and Christian’s

designation of record on appeal does not request that a copy of the bill of costs be included in the

–2– record. In light of Christian’s specific complaint that the clerk’s record did not contain a bill of

costs, we ordered the Dallas County District Clerk to file a supplemental clerk’s record

containing the 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 item has been omitted). Christian’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, pet. filed) (citing Franklin v. State, 402 S.W.3d 894, 895 (Tex. App.—Dallas

2013, no pet.). We resolve Christian’s second point of error against him.

In response to the Court’s order requiring supplementation of the record, Christian filed a

motion in which he objects that the bill of costs in the supplemental clerk’s record 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 in the judgment.

With respect to his first objection, Christian argues the bill of costs in the record is not a

“proper bill of costs” because it is an “unsigned, unsworn computer printout.” The code of

criminal procedure requires only that a bill of cost be certified and signed “by the officer who

charged the cost or the officer who is entitled to receive payment for the cost,” “stating the costs

that have accrued” if the cause is appealed. TEX. CODE CRIM. PROC. ANN. art. 103.001, .006.

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

accrued to date in Christian’s case; it is certified and signed by the district clerk. We conclude

the supplemental record filed by the clerk meets the mandate of the code of criminal procedure.

See Coronel, 2013 WL 3874446, at *4.

With respect to his second objection, Christian complains that 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

–3– entered in the judgment. However, there is no requirement that a bill of costs be presented to the

trial court at any time before judgment. Id. at *5. We deny Christian’s motion objecting to the

supplemental record.

Finally, we note that in his original brief and his objection to the bill of costs, Christian

does not challenge the propriety or legality of the specific costs assessed; therefore, we do not

address these matters.

The trial court’s judgment is affirmed as modified.

/Robert M. Fillmore/ ROBERT M. FILLMORE JUSTICE

Do Not Publish TEX. R. APP. P. 47

121499F.U05

–4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

GUY DAVID CHRISTIAN, Appellant On Appeal from the 204th Judicial District Court, Dallas County, Texas, No. 05-12-01499-CR V. Trial Court Cause No. F12-52845-Q. Opinion delivered by Justice Fillmore, THE STATE OF TEXAS, Appellee Justices Bridges and Lewis participating.

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

The portion of the trial court’s judgment titled “Terms of Plea Bargain:” is modified to state “OPEN.”

As MODIFIED, the judgment is AFFIRMED.

Judgment entered this 7th day of November, 2013.

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