Opinion issued November 26, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-11-01014-CR ——————————— JOSEPH L. EWELLS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court Harris County, Texas Trial Court Case No. 1297122
MEMORANDUM OPINION
A jury found appellant, Joseph L. Ewells, guilty of the offense of burglary of
a building 1 and assessed his punishment at confinement for two years and a $5,000
1 See TEX. PENAL CODE ANN. § 30.02 (Vernon 2011). fine. In two issues, appellant contends that the trial court erred in not appointing
him counsel during the thirty-day period during which he could file a motion for
new trial and there is insufficient evidence to support the assessed court costs.
We affirm.
Background
Houston Police Department (“HPD”) Officer M. Green testified that in the
early morning hours of February 27, 2011, he was dispatched to a burglary in
progress at a liquor store. Green and his partner, HPD Officer T. Boles, arrived at
the scene and in the front area of the store saw a hole in the ceiling with a ladder
going through it. Green and Boles established a perimeter around the building and
called for backup.
After other HPD officers arrived, Officer Green heard a “shuffling noise”
coming from the top of the building and then saw two men wearing dark clothing
jump from the liquor store roof onto the roof of a house next door. One of the men
then slid down from the roof of the house and was caught in the backyard. Other
HPD officers told Green that they could see appellant still on the roof. Appellant
stood up when the officers commanded him to do so and he then lifted up his shirt
so that they could check for weapons. Appellant had a cellular telephone in his
hand and asked if he could throw it down to the police officers stating, “[Y]ou can
have my phone. I already called my people and told them I’m getting arrested for
2 breaking in that liquor store.” Officer Boles borrowed a ladder from a neighbor,
and the officers instructed appellant to come down off of the roof.
On the liquor store roof, Green found “sticking up out of the roof,” a ladder,
which went down into the store, and a lot of “products” from the store, including
liquor bottles, a “large amount” of cigarettes and cigars, and two boxes of scratch-
off lottery tickets. Green also found a bag of tools on the roof. And Green noted
that two women, who he believed were appellant’s sisters, came to the scene and
an officer told the women that appellant had been arrested.
On November 11, 2011, the jury found appellant guilty of the offense of
burglary of a building and assessed punishment. On the same day, appellant’s trial
counsel filed a notice of appeal, moved to withdraw, and requested that the trial
court set bail. Appellant did not state to the trial court that he was indigent or
object to the trial court’s finding that he was not indigent, nor did he request
appellate counsel or a free appellate record. The trial court granted trial counsel’s
motion to withdraw and set an appeal bond of $10,000. Although the trial court
recorded its finding that “Defendant works for the [C]ity of Houston [and] is not
indigent,” it also “filled in the blank” that it was appointing appellate counsel from
the public defender’s office.
Subsequently, in accord with this Court’s Order of Abatement, the trial court
conducted a hearing at which the assigned district court clerk testified about certain
3 docket entries. The clerk explained that appellant had appeared before the trial
court on December 21, 2011 and “informed [the] Court he will hire an appeal
attorney and pay for the record.” The trial court then explained on the record that
at the same hearing it had corrected a clerical error on its November 11, 2011
order, noting that it did not intend to appoint appellate counsel from the public
defender’s office and the “defendant did not request appointed [appellate]
counsel.” The trial court then questioned appellant about whether he had hired
appellate counsel, and appellant stated that he had not hired an attorney because he
“lost [his] job . . . right after [he] got out,” and his girlfriend paid for his appellate
bond. The trial court then questioned appellant about his then current employment
status, and appellant explained that he been unable to find new employment and
made about $200 a week by “doing yard work and washing cars.” The trial court
found that appellant “had not been indigent previously, but now is indigent,”
appointed appellate counsel to represent him, and approved the provision of an
appellate record without charge.
Deprivation of Counsel
In his first issue, appellant argues that the trial court erred in not appointing
him appellate counsel during the time period for filing a motion for new trial
because it was a “critical stage of the proceedings” during which he was
constitutionally entitled to an attorney. Appellant further argues that because he
4 was initially determined to be indigent and appointed trial counsel, he is “presumed
to remain indigent for the remainder of the proceedings in the case unless a
material change in [his] financial circumstances occur[ed]” and the “only
appropriate remedy” is abatement and remand “to restart the appropriate time
table.”
A motion for new trial must be filed no later than thirty days after a trial
court “imposes or suspends sentence in open court.” TEX. R. APP. P. 21.4(a); see
TEX. R. CIV. P. 329b(a). This thirty-day period is a “critical stage” of a criminal
proceeding, and a defendant has a constitutional right to counsel during the period
unless the right has been waived. Cooks v. State, 240 S.W.3d 906, 911 (Tex. Crim.
App. 2007); Burnett v. State, 959 S.W.2d 652, 656 (Tex. App.—Houston [1st
Dist.] 1997, pet. ref’d). The deprivation of counsel is subject to a harmless error
analysis. Cooks, 240 S.W.3d at 911.
The record reflects that on March 1, 2011, appellant asked for and was
appointed counsel, who represented him throughout trial. If a court appoints
counsel to represent a defendant during trial, the same counsel is expected to
represent the defendant on appeal, unless permitted to withdraw. Fowler v. State,
874 S.W.2d 112, 114 (Tex. App.—Austin 1994, pet. ref’d) (citing Ward v. State,
740 S.W.2d 794, 796–97 (Tex. Crim. App. 1987)). When counsel is permitted to
5 withdraw, the court must appoint new counsel unless there is a clear showing in the
record that the defendant is no longer indigent. Id.
On November 11, 2011, the day that appellant was sentenced, his trial
counsel filed a motion to withdraw and a notice of appeal. Appellant neither stated
that he was indigent, requested the appointment of appellate counsel, nor asked the
court to provide a free record for the purpose of an appeal. At the end of his
punishment hearing, the trial court stated, “I will set the appeal bond at $10,000
and ask the bailiff to leave him up here until you can finish that. But if he makes
the bond, since he is working, he is going to need to hire his own lawyer and pay
for the record.” On its order granting trial counsel’s motion to withdraw, the trial
court recorded its finding that appellant “works for [the] [C]ity of Houston [and] is
not indigent.” The trial court later “corrected the error” on its November 11, 2011
order in which it had “filled in” the blank stating that it was appointing the public
defender’s office to represent appellant because the notation had been entered in
“error – [Defendant] did not request appellate counsel.”
Not only did appellant not request appellate counsel, he affirmatively
represented to the trial court when his trial counsel withdrew that he was not
indigent because he worked for the City of Houston and would hire an attorney for
his appeal. At that time, the trial court stated on the record that because appellant
was working, he would need to hire a new lawyer and pay for the record. On its
6 order granting trial counsel’s motion to withdraw, the trial court recorded its
finding that “[Defendant] works for [the] [C]ity of Houston [and] is not indigent.”
And it later determined that a clerical error had been made when it “fill[ed] in the
blank” stating that it was appointing the public defender’s office to represent
appellant. After questioning appellant at the abatement hearing, the trial court
found that appellant “was not indigent previously,” but that he “now is indigent,”
and it then appointed the public defender’s office. See TEX. CODE CRIM. PROC.
ANN. art. 26.04(m) (Vernon Supp. 2013).
Indigency is determined when the issue is raised and not at “a prior or future
point in time.” Easily v. State, 248 S.W.3d 272, 281 (Tex. App.—Houston [1st
Dist.] 2007, pet. ref’d). Therefore, indigency determined at trial does not establish
indigency at the time of appeal. Id. (citing Abdnor v. State, 712 S.W.2d 136, 142
(Tex. Crim. App. 1986). Before a court can determine indigency, the defendant
must sign a form oath, stating that he is without means to employ counsel. See
TEX. CODE CRIM. PROC. ANN. art. 26.04(o) (Vernon Supp. 2013); Whitehead v.
State, 130 S.W.3d 866, 873 (Tex. Crim. App. 2004). And upon requesting a
determination of indigence, the defendant must detail his financial resources under
oath. See TEX. CODE CRIM. PROC. ANN. art. 26.04(n) (Vernon Supp. 2013). The
defendant must also request a free record by motion and affidavit. See TEX. R.
APP. P. 20.2. Here, the record does not contain such an oath, motion or affidavit,
7 and the trial court found that appellant was not indigent because he worked for the
City of Houston.
Having been found by the trial court to not be indigent, appellant was not
entitled to appointed counsel for his appeal. See TEX. CODE CRIM. PROC. ANN. art.
1.051(b), (d)(1), 26.04 (Vernon Supp. 2013); Easily, 248 S.W.3d at 281. The trial
court had no duty to appoint appellate counsel when appellant did not request an
attorney and told the court that he was employed and would hire his own appellate
attorney. See Gray v. Robinson, 744 S.W.2d 604, 607 (Tex. Crim. App. 1988).
Similarly, a defendant is not entitled to an appellate record at no charge unless he
requests such a record “by motion or affidavit” and is found, after a hearing, to be
unable to pay or give security for the appellate record. See TEX. R. APP. P. 20.2;
see Whitehead, 130 S.W.3d at 873, 248 S.W.3d at 277.
There is no indication in the record of such a request, nor does appellant
direct us to any objection made below to the trial court’s finding that he was not
indigent at the time of appeal. Nor has appellant challenged this finding on appeal.
The record does not reflect that appellant asked for or was denied requested
appointment of appellate counsel. Without notice that appellant required, desired,
or was entitled to appellate counsel, the trial court had no duty to appoint appellant
counsel. See Gray, 744 S.W.2d at 607. Accordingly, we hold that the trial court
8 did not err in not appointing appellate counsel immediately after appellant’s trial
counsel withdrew.
We overrule appellant’s first issue.
Sufficiency of Bill of Costs
In his second issue, appellant argues that there is insufficient evidence to
support the imposition of $244 in court costs because there is no documentation
supporting this fee and “the record is silent despite a mandatory statutory
requirement.” Appellant also asserts that the clerk’s record does not contain a bill
of costs, despite his specific request in his Designation of Clerk’s Record.
In support of his argument, appellant relies on Johnson v. State, 389 S.W.3d
513 (Tex. App.—Houston [14th Dist.] 2012, pet. granted). There, the Fourteenth
Court of Appeals concluded that the trial court erred in ordering the payment of a
specific amount of court costs absent support in the record. Id. at 516. The court
also concluded that it could not presume the assessment of costs in the judgment
was accurate to support the trial court’s assessment. Id. at 517 (“In the face of a
sufficiency challenge, an order to supplement the record, and a complete lack of
evidence supporting the trial court’s assessment of costs, we will not presume the
assessment of costs was accurate.”).
This Court, however, has distinguished Johnson because there, the parties
and the court did not address the implications of Texas Code of Criminal
9 Procedure article 103.006, or Rules of Appellate Procedure 34.5 and 44.3, which
permit supplementation of the record. See Cardenas v. State, 403 S.W.3d 377,
383–84. (Tex. App.—Houston [1st Dist.] 2013, pet. granted). Johnson, therefore,
is not dispositive of the issues before us here.
A district clerk must keep a record of each fee or item of cost charged for a
service rendered in a criminal action or proceeding. See TEX. CODE CRIM. PROC.
ANN. art. 103.009(a)(1) (Vernon 2006). If a criminal action is appealed, an officer
of the court must certify and sign a bill of costs and send it to the court to which
the action is transferred or appealed. Id. art. 103.006 (Vernon 2006). Here, no
such document constituting a bill of costs had been created, certified, signed, and
sent to this Court when appellant filed his appellant’s brief in which he raised the
issue of sufficiency of the evidence to support the court costs awarded in the trial
court’s judgment. However, we may “not affirm or reverse a judgment or dismiss
an appeal for formal defects or irregularities in appellate procedure without
allowing a reasonable time to correct or amend the defects or irregularities.” TEX.
R. APP. P. 44.3. And, this court is authorized to direct the trial court clerk to
supplement the record with any relevant omitted item. TEX. R. APP. P. 34.5(c)(1),
(3); see Cardenas, 403 S.W.3d at 383.
Sufficient evidence must support an assessment of costs in a bill of costs or
judgment. See Mayer v. State, 309 S.W.3d 552, 554–56 (Tex. Crim. App. 2010)
10 (holding that factual predicate for assessment of court costs included in cost bill
must be supported by sufficient evidence); Thomas v. State, No. 01-12-00487-CR,
2013 WL 1163980, at *3–4 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013, no pet.
h.) (holding that trial court’s record demonstrated facts and circumstances
sufficient to justify assessment of costs); Owen v. State, 352 S.W.3d 542, 547–48
(Tex. App.—Amarillo 2011, no pet.) (holding that assessment of costs authorized
by statute and supported by record constitutes sufficient evidence). We review the
record in the light most favorable to the award in measuring the sufficiency of the
evidence to support an assessment of costs. See Mayer, 309 S.W.3d. at 557.
In its judgment of conviction, the trial court ordered appellant to pay $244 in
court costs. Although the clerk’s record as originally filed did not contain a bill of
costs, the district clerk supplemented the record with a computerized screen
printout from the Harris County Justice Information Management System (“JIMS”)
after appellant filed his brief. It shows court costs in appellant’s case amounting to
$244, the same amount the trial court ordered him to pay. Appellant filed
objections to this bill of costs on the grounds that it is not a “bill of costs” as
provided for by the code of criminal procedure and violates his right to due
process.
Appellant objected to the form of the bill of costs on the ground that
although it is a certified copy, it is not a certified copy of a signed cost bill and,
11 thus, “simply is not a cost bill as contemplated and required by law.” See TEX.
CODE CRIM. PROC. ANN. art. 103.001 (Vernon 2006) (requiring written bill of costs
signed by court officer charging the costs or entitled to receive payment). The
document is, however, certified by the district clerk as “a true and correct copy of
the original record filed and or recorded” in his office. The certification is signed
by a deputy clerk on behalf of the district clerk, who is entitled to receive payment
for court costs. See id. art. 103.003(a) (Vernon Supp. 2013). And the entire
document, filed as a supplemental record, is supported by a separate certification
that the documentation of costs constitutes “true and correct copies of all
proceedings, instruments, and other papers specified by [TEX. R. APP. P. 34.5(a)]
and matters designated by the parties pursuant to [TEX. R. APP. P. 34.5(b)] in Cause
No. 1297122, styled JOSEPH L. EWELLS vs. The State of Texas in said court.”
We conclude that this documentation substantially satisfies article 103.001 because
the bill is “written,” contains “the items of cost,” and is “signed” by a deputy clerk
on behalf of the district clerk, who is “the officer who is entitled to receive
payment for the cost.” Accordingly, we conclude that the clerk’s record contains a
cost bill that complies with the statutory requirements found in the code of criminal
procedure.
In regard to appellant’s assertion that there is insufficient evidence to
support the $244 assessed in costs, we note that the assessment itemizes various
12 costs incurred in appellant’s case. It calculates a total of $244—the amount of
costs listed in the judgment, and each item of cost listed in the assessment is
authorized by statute and supported by the record. The assessment lists a
“Sheriff’s Fee” of $25, which consists of $5 for “Commitment,” $5 for “Release,”
$5 for “Arrest W/O Warrant/Capias,” and $10 for “Taking: 01 Bonds.” See TEX.
CODE CRIM. PROC. ANN. art. 102.011(a)(1, 5–6) (Vernon Supp. 2013). Appellant
was convicted of a felony in district court; therefore, the record supports each of
the following costs listed in the assessment: “Clerk’s Fee” of $40 (see id. art.
102.005(a) (Vernon 2006)); “Security Fee” of $5 (see id. art. 102.017(a) (Vernon
Supp. 2012)); “Consolidated Court Costs” of $133 (see TEX. LOC. GOV’T CODE
ANN. § 133.102(a)(1) (Vernon Supp. 2013)); “Jury Reimbursement Fee” of $4 (see
TEX. CODE CRIM. PROC. ANN. art. 102.0045(a) (Vernon Supp. 2012)); “DC
Records Preservation” of $25 (see id. art. 102.005(f) (Vernon 2006)); “Support of
Indigent Defense” of $2 (see TEX. LOC. GOV’T CODE ANN. § 133.107(a) (Vernon
Supp. 2013)); and “Support of Judiciary Fee” of $6 (see id. § 133.105(a) (Vernon
2008)). The trial court also assessed further costs of $4 for a “Court Technology
Fund.” See TEX. CODE CRIM. PROC. ANN. art. 102.0169(a) (Vernon Supp. 2013).
The sum of these costs is $244, the amount the trial court’s judgment ordered
appellant to pay. Therefore, we hold that sufficient evidence supports the
13 assessment of costs in the judgment. See TEX. CODE CRIM. PROC. ANN. art.
103.009(c) (Vernon 2006).
Finally, appellant objects to the cost bill on the grounds that a cost bill must
be created before rendition of judgment and this “newly created” bill of costs
violates his right to due process because he did not have the opportunity to
challenge the costs as it was not produced when he was sentenced and “it is too
late” for him to object now. In support of his argument, appellant relies on Harrell
v. State, 286 S.W.3d 315 (Tex. 2009).
We note, however, that appellant has not been denied an opportunity to
challenge the costs listed in the bill of costs. See Cardenas, 403 S.W.3d at 389. A
contemporaneous objection in the trial court is not required to contest costs on
direct appeal. See Mayer, 309 S.W.3d at 555–56; Thomas, 2013 WL 1163980, at
*2. Thus, appellant was not procedurally prejudiced by his alleged inability to
raise an objection in the trial court.
In addition to the ability to bring a direct appeal, appellant can also seek
correction of an error in the cost bill by moving the trial court to correct costs. See
TEX. CODE CRIM. PROC. ANN. art. 103.008(a) (Vernon 2006) (“On the filing of a
motion by a defendant not later than one year after the date of the final disposition
of a case in which costs were imposed, the court in which the case is pending or
was last pending shall correct an error in the costs.”). We explained in Cardenas
14 that “Harrell did not address the article 103.008 procedure for correcting court
costs. And, in any case, [Harrell] does not purport to specify the only means by
which a criminal defendant can contest an assessment of court costs.” Cardenas,
403 S.W.3d at 384 (“Harrell is procedurally distinguishable because it was a civil
proceeding filed by a prison inmate who challenged the withdrawal of funds from
his trust account to pay court costs, but did not challenge the amount of costs
assessed.”). Additionally, a civil post-judgment hearing to collect costs provides
yet another due process avenue to prevent error via clerical or other errors. See
Harrell, 286 S.W.3d at 320–21. Accordingly, we hold that appellant has not been
procedurally prejudiced by an inability to raise objections to the assessed court
costs, nor has his right to due process been denied.
We overrule appellant’s second issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings Justice
Panel consists of Justices Jennings, Sharp, and Brown.
Do not publish. TEX. R. APP. P. 47.2(b). 15