NUMBER 13-12-00465-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
SERENA ROJAS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the Criminal District Court No. 2 of Tarrant County, Texas.
MEMORANDUM OPINION Before Justices Rodriguez, Garza, and Perkes Memorandum Opinion by Justice Perkes Appellant, Serena Rojas, pleaded guilty to the offense of burglary of a habitation, a
second-degree felony.1 See TEX. PENAL CODE ANN. § 30.02(c)(2) (West 2011). In 2007,
1 This case is before us on transfer from the Second Court of Appeals in Fort Worth, pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005). Because this case was transferred from our sister court of appeals in Fort Worth, we decide it in accordance with the precedent of that court. See TEX. R. APP. P. 41.3; Kennedy v. State, 385 S.W.3d 729, 729 n.1 (Tex. App.—Amarillo 2012, pet. ref’d); see also Nelson v. Vernco Constr., Inc., 367 S.W.3d 516, 517 (Tex. the trial court deferred a formal finding of guilt and placed appellant on five years’
deferred-adjudication probation. The State thereafter filed a petition to proceed to
adjudication, alleging appellant violated numerous terms and conditions of her
community supervision. 2 In 2009, the trial court revoked appellant’s community
supervision and found appellant guilty of burglary of a habitation. The trial court
sentenced appellant to twenty years’ confinement in the Texas Department of Criminal
Justice, Institutional Division, and assessed court costs at $281.25 and restitution at
$2,750. By two issues, appellant argues the trial court’s judgment should be reformed
(1) to reduce court costs from $281.25 to $276.00; and (2) to delete the $2,750 in
restitution. We will sustain appellant’s issue and affirm the trial court’s judgment as
modified.
I. COURT COSTS
By her first issue, appellant argues the judgment should be reformed to reduce the
amount of court costs because the record does not include an explanation for the
increased amount. Appellant asserts the 2007 “Unadjudicated Judgment” includes court
costs in the amount of $276.00, whereas the 2009 “Judgment Adjudicating Guilt” includes
court costs in the amount of $281.25. From what we can discern from her brief,
appellant appears to be challenging the sufficiency of the evidence supporting increased
court costs included in the trial court’s 2009 judgment.
App.—El Paso 2012, no pet.). 2 We note that while the order deferring adjudication placed appellant on “probation,” the accompanying order imposing conditions stated appellant had been placed on “community supervision” and set forth conditions of community supervision. This discrepancy is immaterial to the merits of this appeal. 2 A. Standard of Review
The obligation of a convicted person to pay court costs is established by statute.
See TEX. CODE CRIM. PROC. ANN art. 42.16 (West 2006); see also generally id. art.
103.001–.012 (West 2006 & West Supp. 2012). A trial court's imposition of court costs
must be supported by sufficient evidence. See Mayer v. State, 309 S.W.3d 552, 554–56
(Tex. Crim. App. 2010); Solomon v. State, 392 S.W.3d 309, 310 (Tex. App.—San Antonio
2012, no pet.) (op. on reh'g). We review the sufficiency of the evidence to support the
award of costs by viewing all record evidence in the light most favorable to the award.
Cardenas v. State, No. 01-11-01123-CR, 2013 WL 1164365, at *4 (Tex. App.—Houston
[1st Dist.] Mar. 21, 2013, no. pet. h.) (op. on reh’g); Thomas v. State, No.
01-12-00487-CR, 2013WL 1163980, at *3 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013,
no pet. h.). An appellant may raise the issue of insufficient evidence to support the trial
court's assessment of court costs for the first time on appeal.3 See Mayer, 309 S.W.3d
at 556; Solomon, 392 S.W.3d at 310.
B. Analysis
No certified bill of costs signed by an officer entitled to receive payment for the cost
or by the officer who charged the cost is included in the record on appeal. See TEX.
CODE CRIM. PROC. ANN art. 103.001 (West Supp. 2012) (“A cost is not payable by the
person charged with the cost until a written bill is produced or is ready to be produced,
containing the items of cost, signed by the officer who charged the cost or the officer who 3 The State contends that appellant was required to appeal the discrepancy under Texas Code of Criminal Procedure article 103.008 and that she waived her complaint by failing to raise it in that manner. See TEX. CODE CRIM. PROC. ANN art. 103.008 (West 2006). Although article 103.008 provides a method for appealing courts costs, it does not limit appellant’s ability to challenge the sufficiency of the evidence on court costs. See Solomon v. State, 392 S.W.3d 309, 309 (Tex. App.—San Antonio 2012, no pet.) (op. on reh’g). Accordingly, appellant did not waive the issue by failing to appeal under article 103.008. 3 is entitled to receive payment for the cost”). Rather, the record includes two unsigned
documents referencing the $281.25 in court costs included in the judgment. The first
document is entitled “COMMUNITY SUPERVISION AND CORRECTIONS
DEPARTMENT OF TARRANT COUNTY, and subtitled “REVOCATION RESTITUTION/
REPARATION BALANCE SHEET.” Item II of this document shows, without explanation
or breakdown, that the total amount of court costs owed was changed from the printed
amount of $0.00 to the handwritten amount of $281.25. The second document is titled
“Tarrant County District Clerk List of Fee Breakdowns” and shows the balance of court
costs remaining is $281.25. After reviewing the documents, however, we are unable to
determine what court costs were included in the balance. Therefore, nothing in the
record supports the increased amount. The State concedes error.
We will modify the judgment to reflect court costs in the amount of $276.00. See
Cates v. State, 402 S.W.3d 250, 250 (Tex. Crim. App. 2013) (modifying judgment to
delete court-appointed attorney’s fees that were erroneously included in court costs
assessed against criminal defendant); see also Smith v. State, No. 02-11-00295-CR,
2012 WL 2036467, at *2 (Tex. App.—Fort Worth June 7, 2012, no. pet.) (mem. op., not
designated for publication) (deleting court costs award because of absence of record to
support increased amount); Boyd v. State, No. 02-11-00035-CR, 2012 WL 1345751, at *2
(Tex. App.—Fort Worth April 19, 2012, no. pet. h.) (mem. op., not designated for
publication) (same). Appellant’s first issue is sustained.
4 II. PRONOUNCEMENT OF RESTITUTION
By her second issue, appellant argues the judgment should be reformed to delete
the amount ordered as restitution because it was not orally pronounced at sentencing.
Although the record shows the trial court did not make any oral pronouncement regarding
restitution, the judgment includes an assessment in the sum of $2,750 in restitution.
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NUMBER 13-12-00465-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
SERENA ROJAS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the Criminal District Court No. 2 of Tarrant County, Texas.
MEMORANDUM OPINION Before Justices Rodriguez, Garza, and Perkes Memorandum Opinion by Justice Perkes Appellant, Serena Rojas, pleaded guilty to the offense of burglary of a habitation, a
second-degree felony.1 See TEX. PENAL CODE ANN. § 30.02(c)(2) (West 2011). In 2007,
1 This case is before us on transfer from the Second Court of Appeals in Fort Worth, pursuant to an order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001 (West 2005). Because this case was transferred from our sister court of appeals in Fort Worth, we decide it in accordance with the precedent of that court. See TEX. R. APP. P. 41.3; Kennedy v. State, 385 S.W.3d 729, 729 n.1 (Tex. App.—Amarillo 2012, pet. ref’d); see also Nelson v. Vernco Constr., Inc., 367 S.W.3d 516, 517 (Tex. the trial court deferred a formal finding of guilt and placed appellant on five years’
deferred-adjudication probation. The State thereafter filed a petition to proceed to
adjudication, alleging appellant violated numerous terms and conditions of her
community supervision. 2 In 2009, the trial court revoked appellant’s community
supervision and found appellant guilty of burglary of a habitation. The trial court
sentenced appellant to twenty years’ confinement in the Texas Department of Criminal
Justice, Institutional Division, and assessed court costs at $281.25 and restitution at
$2,750. By two issues, appellant argues the trial court’s judgment should be reformed
(1) to reduce court costs from $281.25 to $276.00; and (2) to delete the $2,750 in
restitution. We will sustain appellant’s issue and affirm the trial court’s judgment as
modified.
I. COURT COSTS
By her first issue, appellant argues the judgment should be reformed to reduce the
amount of court costs because the record does not include an explanation for the
increased amount. Appellant asserts the 2007 “Unadjudicated Judgment” includes court
costs in the amount of $276.00, whereas the 2009 “Judgment Adjudicating Guilt” includes
court costs in the amount of $281.25. From what we can discern from her brief,
appellant appears to be challenging the sufficiency of the evidence supporting increased
court costs included in the trial court’s 2009 judgment.
App.—El Paso 2012, no pet.). 2 We note that while the order deferring adjudication placed appellant on “probation,” the accompanying order imposing conditions stated appellant had been placed on “community supervision” and set forth conditions of community supervision. This discrepancy is immaterial to the merits of this appeal. 2 A. Standard of Review
The obligation of a convicted person to pay court costs is established by statute.
See TEX. CODE CRIM. PROC. ANN art. 42.16 (West 2006); see also generally id. art.
103.001–.012 (West 2006 & West Supp. 2012). A trial court's imposition of court costs
must be supported by sufficient evidence. See Mayer v. State, 309 S.W.3d 552, 554–56
(Tex. Crim. App. 2010); Solomon v. State, 392 S.W.3d 309, 310 (Tex. App.—San Antonio
2012, no pet.) (op. on reh'g). We review the sufficiency of the evidence to support the
award of costs by viewing all record evidence in the light most favorable to the award.
Cardenas v. State, No. 01-11-01123-CR, 2013 WL 1164365, at *4 (Tex. App.—Houston
[1st Dist.] Mar. 21, 2013, no. pet. h.) (op. on reh’g); Thomas v. State, No.
01-12-00487-CR, 2013WL 1163980, at *3 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013,
no pet. h.). An appellant may raise the issue of insufficient evidence to support the trial
court's assessment of court costs for the first time on appeal.3 See Mayer, 309 S.W.3d
at 556; Solomon, 392 S.W.3d at 310.
B. Analysis
No certified bill of costs signed by an officer entitled to receive payment for the cost
or by the officer who charged the cost is included in the record on appeal. See TEX.
CODE CRIM. PROC. ANN art. 103.001 (West Supp. 2012) (“A cost is not payable by the
person charged with the cost until a written bill is produced or is ready to be produced,
containing the items of cost, signed by the officer who charged the cost or the officer who 3 The State contends that appellant was required to appeal the discrepancy under Texas Code of Criminal Procedure article 103.008 and that she waived her complaint by failing to raise it in that manner. See TEX. CODE CRIM. PROC. ANN art. 103.008 (West 2006). Although article 103.008 provides a method for appealing courts costs, it does not limit appellant’s ability to challenge the sufficiency of the evidence on court costs. See Solomon v. State, 392 S.W.3d 309, 309 (Tex. App.—San Antonio 2012, no pet.) (op. on reh’g). Accordingly, appellant did not waive the issue by failing to appeal under article 103.008. 3 is entitled to receive payment for the cost”). Rather, the record includes two unsigned
documents referencing the $281.25 in court costs included in the judgment. The first
document is entitled “COMMUNITY SUPERVISION AND CORRECTIONS
DEPARTMENT OF TARRANT COUNTY, and subtitled “REVOCATION RESTITUTION/
REPARATION BALANCE SHEET.” Item II of this document shows, without explanation
or breakdown, that the total amount of court costs owed was changed from the printed
amount of $0.00 to the handwritten amount of $281.25. The second document is titled
“Tarrant County District Clerk List of Fee Breakdowns” and shows the balance of court
costs remaining is $281.25. After reviewing the documents, however, we are unable to
determine what court costs were included in the balance. Therefore, nothing in the
record supports the increased amount. The State concedes error.
We will modify the judgment to reflect court costs in the amount of $276.00. See
Cates v. State, 402 S.W.3d 250, 250 (Tex. Crim. App. 2013) (modifying judgment to
delete court-appointed attorney’s fees that were erroneously included in court costs
assessed against criminal defendant); see also Smith v. State, No. 02-11-00295-CR,
2012 WL 2036467, at *2 (Tex. App.—Fort Worth June 7, 2012, no. pet.) (mem. op., not
designated for publication) (deleting court costs award because of absence of record to
support increased amount); Boyd v. State, No. 02-11-00035-CR, 2012 WL 1345751, at *2
(Tex. App.—Fort Worth April 19, 2012, no. pet. h.) (mem. op., not designated for
publication) (same). Appellant’s first issue is sustained.
4 II. PRONOUNCEMENT OF RESTITUTION
By her second issue, appellant argues the judgment should be reformed to delete
the amount ordered as restitution because it was not orally pronounced at sentencing.
Although the record shows the trial court did not make any oral pronouncement regarding
restitution, the judgment includes an assessment in the sum of $2,750 in restitution.
The Texas Court of Criminal appeals explained adjudication in Taylor v. State:
The true objective of deferred adjudication is to divert the accused from the gauntlet run of the criminal justice system and to allow the judge to enter into a clearly understood pact with the accused that will induce and persuade him to follow the diversionary road. During that time, there is no finding of guilt and no final conviction.
131 S.W.3d 497,499–500 (Tex. Crim. App. 2004).
No sentence is given during deferred adjudication. Davis v. State, 968 S.W.2d
368, 369–70 (Tex. Crim. App. 1998). When a defendant is later adjudicated guilty, the
trial court orally pronounces sentence. See TEX. CODE CRIM. PROC. ANN. art. 43.03, § 1
(West Supp. 2011); Taylor, 131 S.W.3d at 502. An order for restitution must be included
in the oral pronouncement of the sentence in order to be valid. See Alexander v. State,
301 S.W.3d 361, 364 (Tex. App.—Fort Worth 2009, no pet.). If there is a conflict
between the written judgment and the oral pronouncement, the oral pronouncement
controls. Thompson v. State, 108 S.W.3d 287 (Tex. Crim. App. 2003).
Because the trial court did not include restitution in its oral pronouncement of
sentence, we reform the judgment adjudicating guilt to delete the sum of $2,750 in
restitution. An intermediate appellate court may reform a trial court's judgment to make
the record speak the truth when it has the necessary data and information to do so.
5 TEX.R.APP. P. 43.2(b); see, e.g., Tamez v. State, 620 S.W.2d 586, 590 (Tex. Crim. App.
[Panel Op.] 1981) (reforming judgment to show $500 fine imposed but not stated in
judgment); Nolan v. State, 39 S.W.3d 697, 698 (Tex.App.—Houston [1st Dist.2001, no
pet.) (reforming judgment to reflect longer sentence); see also Smith, 2012 WL
20364467, at *2 (deleting reparations). Appellant’s second issue is sustained.
III. CONCLUSION
We modify the judgment to show the sum of $276.00 as the correct amount of
court costs, and delete the requirement that appellant pay restitution in the amount of
$2,750. We affirm the judgment as modified.
GREGORY T. PERKES Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 5th day of September, 2013.