Shawn Elliott Crawford v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: September 26, 2024
• Docket: 13-24-00083-CR
• Status: Published

Opinion

NUMBER 13-24-00083-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

SHAWN ELLIOTT CRAWFORD, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 20TH DISTRICT COURT OF MILAM COUNTY, TEXAS

MEMORANDUM OPINION

Before Justices Benavides, Longoria, and Silva Memorandum Opinion by Justice Longoria

Appellant Shawn Elliott Crawford was found guilty by a jury for unlawful possession

of a firearm by a felon, a third-degree felony. See TEX. PENAL CODE ANN. § 46.04(a), (e).

The jury also found the State’s enhancement allegation true and assessed punishment

at eighty months’ imprisonment. See id. § 12.42(a). The trial court entered judgment on

the verdict, which included a deadly weapon finding and required Crawford to pay court costs and fees. By four issues, Crawford argues that (1) the trial court erred in entering a

deadly weapon finding, (2) the judgment does not accurately reflect the degree of offense

of which he was found guilty, (3) the reimbursement fee ordered in the judgment is not

supported by the record, and (4) the trial court erred in ordering Crawford to pay court

costs and fees. We affirm the judgment as modified.

I. BACKGROUND 1, 2

Crawford was indicted by a grand jury for unlawful possession of a firearm by a

felon. He was found indigent and appointed counsel for trial. The indictment contained no

enhancement allegations. On August 26, 2022, the State filed its “Amended Notice to

Enhance Punishment,” which alleged that Crawford had previously been convicted of

unlawful possession of a firearm by a felon and sought to enhance Crawford’s applicable

punishment range to that of a second-degree felony. See id. § 12.42(a).

A jury found Crawford guilty on October 11, 2023. The following day, during the

punishment phase, the State read its enhancement allegation to which Crawford pleaded

true. The jury found the State’s enhancement allegation true and assessed punishment

at eighty months’ imprisonment. Thereafter, the trial court sentenced Crawford in open

court and announced that it had assessed $305 in court costs. The trial court then

addressed the parties and asked, “[A]nything else at this time?” The parties both

1 This case is before this Court on transfer from the Third Court of Appeals in Austin pursuant to a

docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001. Because this is a transfer case, we apply the precedent of the Third Court of Appeals to the extent it differs from our own. See TEX. R. APP. P. 41.3. 2 We limit our recitation of this case’s background to that which is necessary to resolve the issues

presented on appeal. See TEX. R. APP. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”).

2 responded, “[n]othing further.”

On that same day, the trial court signed and entered its “Order to Withhold Funds

from Inmate’s Trust Account,” finding that Crawford had not paid the costs, fines, or other

fees assessed in his sentence, the total of which was $305, and ordered that payment be

made out of Crawford’s inmate trust account. Additionally, a “Bill of Fine(s), Court Cost

and Reimbursement Fees” was filed into the case and signed by the District Clerk of

Milam County, which indicated that Crawford accrued a “Total Felony District Court Cost”

of $290 and, under “Reimbursement Fees,” a “Visual Recording Device Fee” of $15.

On October 23, 2023, Crawford filed a motion for new trial. On October 24, 2023,

the trial court signed and entered the written judgment of conviction as well as its order

denying Crawford’s motion for new trial. This appeal ensued.

II. DEADLY WEAPON FINDING

In his first issue, Crawford argues that the trial court erred in entering a deadly

weapon finding in the judgment. Under “Findings on Deadly Weapon,” the judgment

states “YES, A FIREARM.”

“Deadly weapon” is defined as, among other things, “a firearm.” See TEX. PENAL

CODE ANN. § 1.07(a)(17)(A)–(B). A trial court is required to enter a jury’s affirmative deadly

weapon finding in the judgment. See TEX. CODE CRIM. PROC. ANN. arts. 42.01, § 1(21),

42A.054(c), (d). “[T]he term ‘affirmative finding’ means the trier of fact’s express

determination that a deadly weapon or firearm was actually used or exhibited during the

commission of the offense.” Duran v. State, 492 S.W.3d 741, 746 (Tex. Crim. App. 2016)

(citing Polk v. State, 693 S.W.2d 391, 393 (Tex. Crim. App. 1985)).

3 We cannot uphold the affirmative finding of a deadly weapon in this case. The

Texas Court of Criminal Appeals has held that the offense of possession of a firearm by

a felon cannot support a deadly-weapon finding when the firearm was not used “to

achieve an intended result, namely, the commission of a felony offense separate and

distinct from ‘mere’ possession.” Ex parte Petty, 833 S.W.2d 145 (Tex. Crim. App. 1992).

Citing to Ex parte Petty, the State concedes error, stating that “a [d]eadly [w]eapon finding

would not be appropriate for the charge[] tried in this case,” and suggests that the finding

was “a drafting error.” We agree and note that nothing in the record indicates that the

firearm involved in this case was “used” in furtherance of any collateral felony. See id.

Under these circumstances, we conclude that the trial court erred in entering an

affirmative deadly weapon finding in the judgment. We sustain Crawford’s first issue.

III. DEGREE OF OFFENSE

In his second issue, Crawford argues, and the State concedes, that the judgment

of conviction does not accurately reflect the degree of offense for which he was tried and

convicted. We agree.

The judgment of conviction states that the “Degree of Offense” is a “2ND DEGREE

FELONY.” Crawford was indicted and found guilty of unlawful possession of a firearm by

a felon, a third-degree felony. See TEX. PENAL CODE ANN. § 46.04(a), (e). Crawford

pleaded true to the State’s enhancement allegation that he had previously been convicted

of a prior felony offense, resulting in Crawford being punished as a repeat offender with

the applicable punishment range of a second-degree felony. See id. § 12.42(a) (providing

that, absent exceptions not applicable here, a defendant shall be punished for a felony of

the second degree “if it is shown on the trial of a felony of the third degree that the

4 defendant has previously been finally convicted of a felony other than a state jail felony”);

see also Ford v. State, 334 S.W.3d 230, 234 (Tex. Crim. App. 2011) (noting the Texas

Court of Criminal Appeals’ prior recognition “that [§] 12.42 increases the range of

punishment applicable to the primary offense; it does not increase the severity level or

grade of the primary offense”); Ex parte Reinke, 370 S.W.3d 387, 389 (Tex. Crim. App.

2012) (drawing a distinction between “enhancing the level of an offense and enhancing

the level of punishment”). Thus, the judgment of conviction’s statement that the offense

of conviction is a second-degree felony is erroneous and should instead reflect that

Crawford was convicted of a third-degree felony. We sustain Crawford’s second issue.

IV. REIMBURSEMENT FEE AND COURT COSTS

In his third issue, Crawford argues that the trial court’s imposition of a

reimbursement fee is not supported by the record. In his fourth issue, Crawford argues

the trial court erred in ordering Crawford to pay court costs when it failed to conduct an

inquiry regarding his ability to pay them. We address these issues together.

A. Standard of Review & Applicable Law

The Texas Code of Criminal Procedure requires that a convicted defendant pay

fines and court costs. See TEX. CODE CRIM. PROC. ANN. arts. 42.15, 42.16; Johnson v.

State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014). Article 42.15 of the Texas Code of

Criminal Procedure provides, in relevant part, as follows:

(a-1) Notwithstanding any other provision of this article, during or immediately after imposing a sentence in a case in which the defendant entered a plea in open court as provided by Article 27.13, 27.14(a), or 27.16(a), a court shall inquire on the record whether the defendant has sufficient resources or income to immediately pay all or part of the fine and costs. . . .

5 TEX. CODE CRIM. PROC. ANN. art. 42.15(a-1) (emphasis added).

Court costs do not constitute a part of the guilt or sentencing of a criminal

defendant; they are “a nonpunitive recoupment of the costs of judicial resources

expended in connection with the trial of the case.” Johnson, 423 S.W.3d at 390 (citation

omitted); Armstrong v. State, 340 S.W.3d 759, 766–67 (Tex. Crim. App. 2011). “Only

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

Johnson, 423 S.W.3d at 389 (citing TEX. CODE CRIM. PROC. ANN. art. 103.002 (“An officer

may not impose a cost for a service not performed or for a service for which a cost is not

expressly provided by law.”)). The district court clerk must keep a record of each fee or

item of cost charged for a service rendered in a criminal action or proceeding. TEX. CODE

CRIM. PROC. ANN. art. 103.009(a)(1). If a criminal action is appealed, the district court clerk

must certify and sign a bill of costs and send it to the appellate court. Id. art. 103.006.

“Court costs listed in a certified bill of costs need neither be orally pronounced nor

incorporated by reference in the judgment to be effective.” Johnson, 423 S.W.3d at 389.

We review a trial court’s directive requiring the payment of a fine and court costs

for an abuse of discretion. Sloan v. State, 676 S.W.3d 240, 241 (Tex. App.—Tyler 2023,

no pet.); see also Carradine v. State, No. 03-24-00012-CR, 2024 WL 3731846, *8 (Tex.

App.—Austin, Aug. 9, 2024, no pet. h.) (mem. op., not designated for publication). In

addition, we review the assessment of court costs to determine whether there is a basis

for the cost; we do not apply an evidentiary-sufficiency review. Johnson, 423 S.W.3d at

390; see Cardenas v. State, 423 S.W.3d 396, 398 (Tex. Crim. App. 2014). An appellant

need not have objected at trial to raise a claim challenging the bases of assessed costs

on appeal. Johnson, 423 S.W.3d at 391.

6 Here, the trial court’s judgment imposed $305 in court costs. The “Bill of Fine(s),

Court Costs and Reimbursement Fees” indicates that Crawford accrued a “Total Felony

District Court Cost” of $290 and, under “Reimbursement Fees,” a “Visual Recording

Device Fee” of $15.

B. Discussion

1. Visual Recording Device Fee

In his third issue, Crawford argues, and the State concedes, that the trial court

lacked any basis to impose the $15 visual recording device fee. We agree.

Article 102.018 of the Texas Code of Criminal Procedure, entitled “Reimbursement

Fees and Expenses Attendant to Intoxication Convictions,” requires the trial court to

impose a $15 reimbursement fee on defendants convicted of driving while intoxicated if

law enforcement visually recorded the defendant with an electronic device after the

defendant’s arrest. See TEX. CODE CRIM. PROC. ANN. art. 102.018; TEX. PENAL CODE ANN.

§ 49.04 (driving while intoxicated).

Though the record indicates that Crawford was visually recorded during a traffic

stop, he was not convicted of driving while intoxicated. See TEX. PENAL CODE ANN.

§ 49.04. Therefore, there was no basis by which the trial court could impose a visual

recording device fee pursuant to article 102.018. See TEX. CODE CRIM. PROC. ANN. art.

102.018; see also Johnson, 423 S.W.3d at 390; Cardenas, 423 S.W.3d at 398.

Furthermore, we have found no other provision in the Texas Code of Criminal Procedure

that requires the trial court to impose a $15 “visual recording device fee.” We sustain

Crawford’s third issue.

7 2. Imposing Court Costs Without Conducting Ability-to-Pay Inquiry

In this fourth issue, Crawford argues, and the State concedes, that the trial court

abused its discretion in imposing court costs in the judgment without first conducting an

on-the-record inquiry regarding his ability to pay costs as required by Article 42.15(a-1).

See TEX. CODE CRIM. PROC. ANN. art. 42.15(a-1). Citing to Cruz v. State, 694 S.W.3d 1

(Tex. App.—Houston [14th Dist.] 2023), aff’d, ___ S.W.3d ___, 2024 WL 4031525, *2–6

(Tex. Crim. App. Sept. 4, 2024), Crawford argues that the ability-to-pay inquiry is a

category-two Marin right and must be affirmatively waived. See Marin v. State, 851

S.W.2d 275, 279 (Tex. Crim. App. 1993). The parties both suggest that we either remand

this case to the trial court to conduct an on-the-record ability-to-pay inquiry, or vacate the

court costs in the judgment. We disagree.

The Texas criminal adjudicatory system contains error-preservation “rules of three

distinct kinds: (1) absolute requirements and prohibitions; (2) rights of litigants which must

be implemented by the system unless expressly waived; and (3) rights of litigants which

are to be implemented upon request.” Id. The Texas Court of Criminal Appeals has “since

referred to these separate classifications as category-one, -two, and -three Marin rights,

respectively,” and has explained that:

[P]rocedural default—that is, “the loss of a claim or right for failure to insist upon it by objection”—“only applies to the last category,” since these rights are typically considered to be “optional with the litigants.” [Marin, 851 S.W.2d at 279.] On the other hand, category-two rights, because they are “so fundamental to the proper functioning of our adjudicatory process as to enjoy special protection,” are only abandoned on appeal when the record reflects that they have been “plainly, freely, and intelligently” waived at trial. [Id. at 279–80.] And category-one rights, being “systemic” and therefore “essentially independent of the litigants’ wishes” can neither be forfeited nor even validly waived by the parties for appellate-review purposes. [Id. at 279.]

8 Proenza v. State, 541 S.W.3d 786, 792 (Tex. Crim. App. 2017). Since the parties briefing,

the Texas Court of Criminal Appeals affirmed the Cruz court’s judgment on narrow

grounds, and explained that an ability-to-pay inquiry pursuant to Article 42.15(a-1) was

not a category-two Marin right, but instead, a forfeitable, category-three Marin right:

An ability-to-pay inquiry is not fundamental to the adjudicatory system; it is a post-trial procedure that has nothing to do with adjudication; it does not ensure a jury, a fair trial, a correctly informed sentencing judge, or a defendant’s ability to understand the proceedings against him. It does not implicate “the integrity of judicial sentencing proceedings” or “the criminal adjudicatory process[.]” See Grado [v. State], 445 S.W.3d [736,] 741 [(Tex. Crim. App. 2014)] (referencing judicial sentencing); see Proenza, 541 S.W.3d at 798 (referencing the criminal adjudicatory process). Requesting it would not likely be futile, and its post-trial timing forecloses the possibility that asking for it would expose the jury to the judge’s bias. See Proenza, 541 S.W.3d at 799. Requiring an objection to enforce it would not undermine “the public’s perception of the fairness of our judicial system” or engender “suspicions” about the system’s “fairness and accuracy.” See Grado, 445 S.W.3d at 741. In short, an ability-to-pay inquiry made during or right after sentencing bears no consequence to the adjudicatory process.

Cruz, ___ S.W.3d at ___, 2024 WL 4031525, *3. 3

We are bound by the Texas Court of Criminal Appeal’s decision in Cruz. Here,

Crawford forfeited his right to an ability-to-pay inquiry on the record by failing to object

and therefore failed to preserve error. See id.; TEX. R. APP. P. 33.1. We therefore decline

the parties’ invitation to waive his court costs or remand to the trial court to conduct the

Article 42.15 ability-to-pay inquiry. 4 We overrule Crawford’s fourth issue.

3 The Texas Court of Criminal Appeals then went on to explain why “missing out on [an ability-to-

pay inquiry] would not doom a defendant to undue hardship.” Id. 4 We also decline Crawford’s requested remedy for his fourth issue suggesting that we order “any

funds already garnished from [Crawford’s] inmate trust account be immediately returned to him via check through TDCJ.”

9 V. MODIFICATION OF WRITTEN JUDGMENT

This Court has authority to modify incorrect judgments when the necessary

information is available to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d

26, 27–28 (Tex. Crim. App. 1993). Likewise, an appellate court has authority on direct

appeal to modify a bill of costs independent of finding an error in the trial court’s judgment.

Bryant v. State, 642 S.W.3d 847, 850 (Tex. Crim. App. 2021).

Having sustained Crawford’s first, second, and third issues, we modify the

judgment of conviction by: replacing the notation “2ND DEGREE FELONY” under the

heading “Degree of Offense” with the notation “3RD DEGREE FELONY”; replacing the

words “YES, A FIREARM” under the heading “Findings on Deadly Weapon” with the

notation “N/A”; and replacing the notation “$15” under the heading “Reimbursement Fees”

with the notation “N/A.” We also modify the “Bill of Fine(s), Court Cost and

Reimbursement Fees” by: replacing the hand-written notation “15.00” in the fill-in-the-

blank space next to the type-written dollar sign following the line item, “Visual Recording

Device Fee,” with the notation “N/A”; and by replacing the hand-written notation “305.00”

in the fill-in-the-blank space next to the type-written dollar sign following the line item,

“TOTAL DUE FOR ALL COSTS, FINES, FEES and RESTITUTION,” with the notation

“290.00.” We likewise modify the trial court’s “Order to Withhold Funds from Inmate’s

Trust Account” incorporated into the judgment by replacing the hand-written notation

“305.00” in the fill-in-the-blank space following the type-written statement, “The total

amount of fines and fees accrued in this case is $,” with the notation “290.00.”

10 VI. CONCLUSION

We affirm the trial court’s judgment as modified.

NORA L. LONGORIA Justice

Do not publish. TEX. R. APP. P. 47.2 (b).

Delivered and filed on the 26th day of September, 2024.