Affirmed as Modified and Opinion Filed February 24, 2014
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-01677-CR
MELVIN X. CELESTINE, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2 Dallas County, Texas Trial Court Cause No. F08-61495-I
OPINION Before Justices FitzGerald, Lang, and Fillmore Opinion by Justice FitzGerald
Appellant Melvin X. Celestine pleaded nolo contendere to misdemeanor assault and was
placed on community supervision. After he violated the terms of his community supervision, the
trial judge adjudicated his guilt and sentenced him to eleven months in jail. Appellant appeals
from the order adjudicating guilt. We reduce the assessment of court costs against appellant and
affirm the judgment as modified.
I. BACKGROUND
In November 2008, appellant was indicted for third-degree-felony assault involving
family violence. He entered into a plea agreement with the State and pleaded nolo contendere to
class A misdemeanor assault. The plea agreement that appellant signed contains a judicial
confession that he committed the offense of assault “exactly as alleged in the charging instrument.” Appellant also signed a separate judicial confession that appears in the clerk’s
record. On March 27, 2009, the trial judge signed an order of deferred adjudication placing
appellant on community supervision for one year. In that order, the judge ordered appellant to
pay a fine of $500 and court costs of $240. The judge also signed a separate certification that
appellant waived the right of appeal.
On March 4, 2010, the State filed a motion to proceed to an adjudication of guilt in which
the State alleged that appellant had violated several conditions of his community supervision. In
December 2012, the trial judge heard the State’s motion, and appellant pleaded true and signed a
judicial confession. The judge found appellant guilty of assault and sentenced him to eleven
months’ confinement in the county jail. The judgment adjudicating guilt assessed no fine and
assessed court costs of $690. This appeal followed.
II. ANALYSIS
Appellant raises two points of error in his principal brief on appeal. In his first point of
error he complains about the lack of a reporter’s record from his plea hearing. In his second
point of error he attacks the assessments of court costs. We later granted appellant leave to file a
supplemental brief in which he raises four supplemental points of error relating to court costs.
A. Lack of record
In his first point of error, appellant argues that he is entitled to a new trial because no
record was made of the March 27, 2009 hearing of his negotiated plea, or because the record has
been lost or destroyed. On our own motion, we ordered the trial judge to make findings
regarding the existence and status of any reporter’s record of the March 27, 2009 hearing. The
trial judge found that the hearing was not recorded by a court reporter because this was a
misdemeanor case and because misdemeanor cases are not reported on the record in the absence
of a request from defense counsel. The judge then found that appellant waived the recording of
–2– the plea hearing “by failing to request that a court reporter be present to record the proceedings.”
The judge further found “that no record was made on March 27, 2009 in regard to this case
because no such record was requested. The notes of the March 27, 2009 hearing are not
available and cannot be transcribed because they do not exist. Because the record was never
made, the notes could not have been lost or destroyed.”
The State contends that we lack jurisdiction over appellant’s first point of error based on
the rule of Manuel v. State: a defendant who is placed on deferred-adjudication community
supervision may appeal issues relating to the original plea proceeding only in an appeal taken
when deferred adjudication is first imposed. 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999).
Appellant did not timely appeal after the rendition of the order of deferred adjudication in this
case. Appellant acknowledges the Manuel rule but argues that his point of error comes within
the “void judgment” exception to the rule. See Nix v. State, 65 S.W.3d 664, 667–68 (Tex. Crim.
App. 2001) (recognizing and explaining the void-judgment exception). Judgments are void
“only in very rare situations.” Id. at 668. The Nix court identified four such situations: (1) the
charging instrument was constitutionally defective, (2) lack of subject-matter jurisdiction in the
trial court, (3) a complete lack of evidence to support the conviction, and (4) conviction of an
indigent defendant without appointment of counsel or a waiver of such counsel. Id. Nix permits
appellant to argue on appeal that the original order of deferred adjudication was void. See id.
(“[W]e hold that the void judgment exception . . . applies in the deferred adjudication context.”).
Appellant argues that the order of deferred adjudication is or may be void because it is
supported by insufficient evidence. But insufficiency of the evidence is not a defect that makes a
judgment void. “For the judgment to be void, the record must show a complete lack of evidence
to support the conviction, not merely insufficient evidence.” Id. at 668 n.14. Construing
appellant’s contention as a no-evidence argument, we immediately confront the problem that the
–3– absence of a reporter’s record from the plea proceedings makes a no-evidence review impossible.
Appellant cannot show the order of deferred adjudication is void on no-evidence grounds; the
question becomes whether appellant can complain about the court reporter’s failure to transcribe
the plea proceedings because that failure makes it impossible for him to mount a no-evidence-
voidness challenge now.
Nix lights our way. In Nix, the defendant pleaded no contest to a misdemeanor and
waived, in writing, his right to have the plea proceeding recorded by a court reporter. 65 S.W.3d
at 666 & n.1. The defendant was placed on community supervision, violated the conditions of
his community supervision, and was ultimately adjudicated guilty and sentenced to jail. Id. at
666. The defendant attempted to appeal after the adjudication of guilt, but the court of appeals
dismissed the appeal for want of jurisdiction, and the court of criminal appeals affirmed. Id. at
666–67. The court of criminal appeals’ analysis of the void-judgment exception to the Manuel
rule is pertinent to the instant case:
[F]or a judgment to be void, the record must leave no question about the existence of the fundamental defect. If the record is incomplete, and the missing portion could conceivably show that the defect does not in fact exist, then the judgment is not void, even though the available portions of the record tend to support the existence of the defect. For example, when a defendant levels a “no evidence” challenge against the conviction, but the record contains no court reporter’s transcription of the original plea hearing, then the conviction is not void, even though the record—as far as it goes—tends to support the no evidence claim. “Without the transcription, we are unable to ascertain whether other evidence was introduced to support the appellant’s conviction.”
Id. at 668–69 (footnotes omitted); see also Martinez v. State, 194 S.W.3d 699, 702–03 n.3 (Tex.
App.—Houston [14th Dist.] 2006, no pet.) (following Nix in case in which appellant waived
court reporter at plea hearing). We recently applied the Nix analysis in the case of Hamilton v.
State, No. 05-11-00772-CR, 2013 WL 485776 (Tex. App.—Dallas Feb. 6, 2013, pet. ref’d)
(mem. op., not designated for publication). We concluded that the absence of a reporter’s record
from the plea proceedings barred the appellant’s belated contention that there was no evidence to –4– support the deferred-adjudication order, without noting whether or not the appellant had waived
the recording of those proceedings. Id. at *2.
In the instant case, we have the trial judge’s affirmative finding that appellant waived the
recording of his plea hearing by failing to request a court reporter. We have held that a
defendant must make a request for a court reporter to record a hearing in order to preserve error.
Langford v. State, 129 S.W.3d 138, 139 (Tex. App.—Dallas 2003, no pet.); accord Satterfield v.
State, 367 S.W.3d 868, 871 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d); see also TEX.
GOV’T CODE ANN. § 52.046(a) (West 2013) (providing that court reporters shall perform certain
duties “[o]n request”). Appellant has not challenged the trial judge’s waiver finding, and there is
no indication in the record that appellant made a request for a court reporter to record the plea
proceedings. Appellant points out that the plea agreement contains a box labeled “Defendant
waives a court reporter” and that the box is not checked. But evidence that appellant did not
execute a written waiver of his right to a court reporter is no evidence that he actually requested a
court reporter as was necessary to avoid waiver. See Langford, 129 S.W.3d at 139.
Based on the trial judge’s unchallenged finding, we conclude that appellant waived the
right to have a court reporter record his plea hearing. Accordingly, under Nix it is impossible for
appellant to show that the order of deferred adjudication is void on no-evidence grounds. See
Nix, 65 S.W.3d at 668–69; see also Hamilton, 2013 WL 485776, at *2. Because appellant has
failed to allege an error that could render the order of deferred adjudication void, we cannot
consider his first point of error. See Nix, 65 S.W.3d at 669; Manuel, 994 S.W.2d at 661–62.
B. Costs
In his second original point of error, appellant complains that the award of court costs of
$240 in the order of deferred adjudication and the award of court costs of $690 in the judgment
adjudicating guilt are supported by insufficient evidence. In a supplemental brief, appellant also
–5– raises several reply issues (four of which are also labeled “supplemental points of error”) about
the assessment of court costs.1
1. Additional facts
After appellant filed his opening brief in this appeal, the State requested the preparation
of a supplemental clerk’s record containing additional documents relating to court costs. That
record was filed in July 2013. Appellant requested leave to file a supplemental brief to address
the supplemental clerk’s record, which we granted. After appellant filed his supplemental brief,
we issued an order directing the trial court clerk to prepare another supplemental clerk’s record
containing a cost bill or other document sufficient to comply with the code of criminal
procedure’s provisions about court costs. In November 2013, the clerk filed another
supplemental clerk’s record in response to our order. The parties did not file any additional
briefs after the filing of this last supplemental clerk’s record.
2. Costs assessed in the order of deferred adjudication
The State contends that appellant cannot contest the $240 of court costs assessed against
him in the order of deferred adjudication because any such contest had to be raised in a direct
appeal from that order. We agree. Because appellant did not appeal the imposition of court
costs when the deferred-adjudication order was rendered, his complaints about those costs are
untimely. See Wiley v. State, 410 S.W.3d 313, 320–21 (Tex. Crim. App. 2013); Williams v.
State, No. 05-12-00888-CR, 2013 WL 6157336, at *1 (Tex. App.—Dallas Nov. 21, 2013, no
pet.) (mem. op., not designated for publication).
The December 2012 judgment adjudicating guilt assesses court costs of $690. The
supplemental clerk’s records reveal that the $450 increase consisted of a $400 attorney’s fee
1 This case is but one of many recent appeals in which we have been “asked to engage in a function of auditing bills of costs.” Wolfe v. State, 377 S.W.3d 141, 148 n.1 (Tex. App.—Amarillo 2012, no pet.) (Campbell, J., concurring and dissenting).
–6– (because mathematically that amount could not have been part of the $240 originally assessed)
and a $50 law-enforcement fee for the execution or processing of a capias (because the capias
was not issued until March 2010, long after the rendition of the deferred-adjudication order).
We can review appellant’s arguments only to the extent they relate to the $450 of court
costs assessed for the first time in the judgment adjudicating guilt. Accordingly, we reject
appellant’s reply issues five, six, and seven, the first two of which also serve as supplemental
points of error three and four.
3. Bill of costs
In appellant’s second point of error in his principal brief, he argued that the trial judge’s
assessments of court costs were supported by insufficient evidence because the record did not
contain a bill of cost. That defect has now been remedied. We reject appellant’s second point of
error. See Franklin v. State, 402 S.W.3d 894, 895 (Tex. App.—Dallas 2013, no pet.); see also
Coronel v. State, No. 05-12-00493-CR, 2013 WL 3874446, at *4–6 (Tex. App.—Dallas July 29,
2013, pet. ref’d). In appellant’s first reply issue, he contends that the July 2013 supplemental
clerk’s record should not be considered in support of the cost assessment because it was not
properly before the trial judge. We rejected that argument in Coronel. See Coronel, 2013 WL
3874446, at *4–6. In reply issue two, appellant argues that the documents contained in the July
2013 supplemental clerk’s record are too informal to satisfy the bill-of-cost requirement in the
code of criminal procedure. This issue is mooted by the filing of the November 2013
supplemental clerk’s record, which contains documents that satisfy the formal requirements of
the code of criminal procedure under our decision in Coronel. See id.
4. Sheriff’s fee
In supplemental point of error one, which is also reply issue three, appellant argues that
the $690 cost assessment includes a $50 sheriff’s fee that is not supported by the record. The
–7– sheriff’s fee is authorized by both the government code and the code of criminal procedure. The
government code provides:
A person convicted of an offense shall pay the following under the Code of Criminal Procedure, in addition to all other costs:
...
(3) fees for services of [a] peace officer:
(B) executing or processing an issued arrest warrant, capias, or capias pro fine (Art. 102.011, Code of Criminal Procedure) . . . $50[.]
TEX. GOV’T CODE ANN. § 102.021(3)(B) (West Supp. 2013). Article 102.011 of the code of
criminal procedure adds certain prerequisites for the assessment of that fee:
(a) A defendant convicted of a felony or a misdemeanor shall pay the following fees for services performed in the case by a peace officer:
(2) $50 for executing or processing an issued arrest warrant, capias, or capias pro fine with the fee imposed for the services of:
(A) the law enforcement agency that executed the arrest warrant or capias, if the agency requests of the court, not later than the 15th day after the date of the execution of the arrest warrant or capias, the imposition of the fee on conviction; or
(B) the law enforcement agency that processed the arrest warrant or capias, if:
(i) the arrest warrant or capias was not executed; or
(ii) the executing law enforcement agency failed to request the fee within the period required by Paragraph (A) of this subdivision[.]
TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(2) (West Supp. 2013). In this case, the July 2013
supplemental clerk’s record contains a copy of a capias that states that it was returned on
November 30, 2012. But, appellant points out, the sheriff’s return on that capias has a space for
“Fees,” and that space was left blank. Appellant concludes that the $50 assessment must be
reversed because there is no indication the sheriff actually requested the fee.
–8– We conclude that the statutes do not require an affirmative request for the fee by the
sheriff on the facts of this case, and so we reject appellant’s argument. Article 102.011(a)(2)(A)
requires a timely request for the fee only if the fee is sought by the agency that executed a capias;
absent such a request, the fee defaults to the agency that processed the capias. See id. The
“sheriff’s return” portion of the capias was completed by someone whose signature is illegible
but who added the words “Dallas P.D.” after his or her signature. Thus, the record indicates that
the Dallas County Sheriff’s Department did not execute the capias—the Dallas Police
Department did. The capias was issued in Dallas County and addressed to “any Sheriff or any
Constable of the State of Texas,” giving rise to an inference that the Sheriff’s Department did
process the capias. Because article 102.011(a)(2)(B) does not require a request for the $50 fee
by the processing law enforcement agency, the absence of evidence of a request by the Dallas
County Sheriff’s Department is immaterial.
For these reasons, we conclude the record adequately supports the assessment of the $50
fee under article 102.011(a)(2)(B)(ii).
5. Attorney’s fees
In supplemental point of error two, which is also reply issue four, appellant argues that
the $690 cost assessment includes $400 in attorney’s fees that must be deleted for lack of support
in the record. The trial judge has the discretionary authority to order a defendant to reimburse
the government for an appointed attorney’s fees when the defendant has the financial resources
to repay all or part of the cost of the legal services provided. Cortez v. State, No. 05-12-01319-
CR, 2013 WL 5969564, at *1 (Tex. App.—Dallas Nov. 7, 2013, no pet.) (mem. op., not
designated for publication); see also TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp.
2013). “[T]he defendant’s financial resources and ability to pay are explicit critical elements in
the trial court’s determination of the propriety of ordering reimbursement of costs and fees.”
–9– Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). Thus, before a trial judge can
assess attorney’s fees as costs under article 26.05(g), the judge must determine that the defendant
possesses the necessary financial resources, and the record must show some factual basis to
support that determination. Youkers v. State, 400 S.W.3d 200, 212 (Tex. App.—Dallas 2013,
pet. ref’d); see also Cates v. State, 402 S.W.3d 250, 251–52 (Tex. Crim. App. 2013). Moreover,
a defendant who is determined to be indigent is presumed to remain indigent for the remainder of
the proceedings unless a material change in the defendant’s financial circumstances occurs.
Cates, 402 S.W.3d at 251.
In this case, the trial judge found that appellant was indigent at the outset of the
proceedings and appointed counsel for him, even though appellant swore in his affidavit of
indigence that his total monthly income was $1,000. After the State filed its motion to proceed
to adjudication of guilt, appellant filed a sworn request for appointed counsel in which appellant
averred that he had no income and no assets. The trial judge again found appellant indigent and
appointed counsel for him. After rendering the judgment adjudicating guilt, the trial judge again
found appellant indigent and appointed appellate counsel for him. The judge never made a
finding that appellant was able to repay any part of the costs of his court-appointed attorney.
Thus, the record supports appellant’s contention that the assessment of attorney’s fees was
erroneous.
The State argues that the assessment of attorney’s fees is supported by appellant’s
averment in his original affidavit of indigence that he had a monthly income of $1,000. The
State contends that this was some evidence that appellant had financial resources that enabled
him to offset, in whole or in part, the cost of his attorney’s legal services. But the trial judge
never made a judicial finding to that effect, and the judge made several contrary findings that
appellant was indigent and unable to employ counsel. If a defendant has been found indigent
–10– and there is no judicial finding that the defendant is able to repay the costs of court-appointed
counsel, no attorney’s fee can be assessed against the defendant. Id. at 251–52. Because there is
no such finding in the record, the assessment of the attorney’s fee was erroneous. We sustain
appellant’s issue and reduce the assessment of costs by $400, the amount shown in the cost bill
to be attributable to the “court appointed attorney fee.”
III. CONCLUSION
We reduce the assessment of court costs against appellant to $290. As modified, the trial
court’s judgment is affirmed.
/Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE
Do Not Publish TEX. R. APP. P. 47 121677F.U05
–11– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MELVIN X. CELESTINE, Appellant On Appeal from the Criminal District Court No. 2, Dallas County, Texas No. 05-12-01677-CR V. Trial Court Cause No. F08-61495-I. Opinion delivered by Justice FitzGerald. THE STATE OF TEXAS, Appellee Justices Lang and Fillmore participating.
Based on the Court’s opinion of this date, we MODIFY the judgment of the trial court by reducing the assessment of court costs from $690 to $290. As REFORMED, the judgment is AFFIRMED.
Judgment entered February 24, 2014
–12–