Valerie Salyards Gilmore v. State

• Court: Court of Appeals of Texas
• Decided: May 8, 2015
• Docket: 12-15-00049-CR
• Status: Published

Opinion

ACCEPTED 12-15-00049-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 5/8/2015 12:28:00 PM CATHY LUSK CLERK

12-15-00049-CR

RECEIVED IN 12th COURT OF APPEALS IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS TYLER, TEXAS 5/8/2015 12:28:00 PM CATHY S. LUSK Clerk VALERIE SALYARDS GILMORE

Appellant, 5/8/2015 v.

THE STATE OF TEXAS

Appellee

On Appeal from the Seventh District Court of Smith County, Texas Trial Cause No. 007-1439-14

ORAL ARGUMENT NOT REQUESTED

Austin Reeve Jackson Texas Bar No. 24046139 JLawAppeals@gmail.com 112 East Line, Suite 310 Tyler, TX 75702 Telephone: (903) 595-6070 Facsimile: (866) 387-0152 IDENTITY OF PARTIES AND COUNSEL

Attorney for Appellant

Appellate Counsel: Austin Reeve Jackson 112 East Line, Suite 310 Tyler, TX 75702

Trial Counsel: John Jarvis 326 S. Fannin Tyler, TX 75702

Attorney for the State

Mr. Michael West Smith County ADA 100 N. Broadway Tyler, TX 75702

ii TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................. ii TABLE OF CONTENTS............................................................................................... iii INDEX OF AUTHORITIES ......................................................................................... iv STATEMENT OF THE CASE....................................................................................... 2 ISSUES PRESENTED ................................................................................................... 2 STATEMENT OF FACTS ............................................................................................. 2 SUMMARY OF THE ARGUMENT ............................................................................. 3 ARGUMENT .................................................................................................................. 3

I. THE TRIAL COURT ERRED IN ORDERING FUNDS TO BE WITHHELD FROM MS. GILMORE'S INMATE TRUST ACCOUNT IN AN AMOUNT NOT SUPPORTED BY A PROPER BILL OF COSTS........................................................................... 3

The Court Has Ordered the Withholding of Mr. Pendergrass' Inmate Trust Funds in an Amount Not Supported by the Record ................................ 4

CONCLUSION AND PRAYER .................................................................................... 5 CERTIFICATE OF SERVICE ....................................................................................... 5 CERTIFICATE OF COMPLIANCE .............................................................................. 6

iii INDEX OF AUTHORITIES

TEXAS SUPREME COURT AND COURT OF CRIMINAL APPEALS:

Armstrong v. State, 240 S.W.3d 759 (Tex.Crim.App. 2011) ....................................................... 3, 4

Harrell v. State, 286 S.W.3d 315 (Tex. 2009) ......................................................................... 4

Johnson v. State, 423 S.W.3d 385 (Tex.Crim.App. 2014) ........................................................ 5 n.2

Weir v. State, 278 S.W.3d 364 (Tex.Crim.App. 2009) ....................................................... 3

TEXAS COURTS OF APPEAL:

Johnson v. State, 389 S.W.3d 513 (Tex.App.—Houston [14th Dist.] 2012) ............................ 5

Owen v. State, 352 S.W.3d 542 (Tex.App.—Amarillo 2011) .............................................. 3-4

Snelson v. State, 326 S.W.3d 754 (Tex.App.—Amarillo 2010) .............................................. 4

Solomon v. State, 392 S.W.3d 309 (Tex.App.—San Antonio 2012) ......................................... 5

Williams v. State, 322 S.W.3d 301 (Tex.App.—Amarillo 2010) .............................................. 4

Williams v. State, 332 S.W.3d 694 (Tex.App.—Amarillo 2011) .............................................. 4

iv STATUTES:

TEX. CONST. art. I § 9 ........................................................................................ 4

TEX. GOV’T CODE § 102.021 ............................................................................. 3

TEX. GOV’T CODE § 103.001 ............................................................................. 3, 4

TEX. GOV’T CODE § 501.014(e) ........................................................................ 4 n.1

U.S. CONST. AMEND. XIV ................................................................................. 4

v 12-15-00049-CR

IN THE TWELFTH COURT OF APPEALS TYLER, TEXAS

VALERIE SALYARDS GILMORE

Appellant,

v.

On Appeal from the Seventh District Court of Smith County, Texas Trial Cause No. 007-1439-14

TO THE HONORABLE JUSTICES OF THE COURT:

COMES NOW, Austin Reeve Jackson, attorney for Valerie Gilmore, and files this

brief pursuant to the TEXAS RULES OF APPELLATE PROCEDURE, and would show the

Court as follows: STATEMENT OF THE CASE

Valerie Gilmore seeks to appeal her conviction and sentence for the offense of

possession of a controlled substance. (I CR 54). Ms. Gilmore was indicted for this of-

fense in November of last year in the Seventh District Court of Smith County. (I CR 1).

To this charge she entered an open plea of “guilty” before the court. (I CR 54). After

accepting the plea the trial judge sentenced Ms. Gilmore to serve a term of eight year’s

confinement. (Id.). Sentence was pronounced on 20 February 2015 and notice of appeal

then timely filed. (I CR 54, 59).

ISSUE PRESENTED

I. THE TRIAL COURT ERRED IN ORDERING FUNDS TO BE WITHHELD FROM MS. GILMORE’S INMATE TRUST AC- COUNT IN AN AMOUNT NOT SUPPORTED BY A PROPER BILL OF COSTS.

STATEMENT OF FACTS

In February of this year Appellant, Ms. Valerie Gilmore, entered a plea of “guilty”

to the felony offense of possession of a controlled substance. (I CR 54). This plea was

made without the benefit of a plea agreement. (Id.). After accepting her plea and consid-

ering evidence at a sentencing hearing, the trial court sentenced Ms. Gilmore to serve a

term of eight years’ confinement. (Id). Sentence was pronounced on 20 February 2015

and notice of appeal then timely filed. (I CR 54, 59).

SUMMARY OF THE ARGUMENT

A defendant has a due process right to be informed as to the basis of any imposed

costs of court. To satisfy this right, the District Clerk, in accordance with Article

103.0001 of the Texas Code of Criminal Procedure, is to prepare a written bill of costs

before the same can be taxed against a defendant. Because the amount ordered as court

costs in the instant case is not supported by the required bill of costs, the Court should

modify the judgment and delete those costs not supported by the record before it.

ARGUMENT

I. THE TRIAL COURT ERRED IN ORDERING FUNDS TO BE WITHHELD FROM MS. GILMORE’S INMATE TRUST AC- COUNT IN AN AMOUNT NOT SUPPORTED BY A PROPER BILL OF COSTS.

By law, a sentencing court shall impose the legislatively mandated, statutory costs

at the time a defendant is convicted. Armstrong v. State, 340 S.W.3d 759

(Tex.Crim.App. 2011); TEX. GOV’T CODE § 102.021. However, the costs, which are not

punitive in nature, do not have to be included in the oral pronouncement of sentence.

Weir v. State, 278 S.W.3d 364, 367 (Tex.Crim.App. 2009). In fact, “A cost is not paya-

ble 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 is entitled to receive payment of the cost.” TEX. CODE CRIM. PROC. art.

103.001. That is, until a certified bill of costs has been made part of the record, a defend-

ant has no obligation to pay court costs. Owen v. State, 352 S.W.3d 542, 547

(Tex.App.—Amarillo 2011) (citing Armstrong, 340 S.W.3d at 765; Williams v. State, 332

S.W.3d 694, 699 (Tex.App.—Amarillo 2011, pet. denied).

The Court Has Ordered the Withholding of Ms. Gilmore’s Inmate Trust Funds in an Amount Not Supported by the Record.

Although one was requested to be made part of the record (I CR 57), in the case

before the Court the record contains no certified bill of costs as required by Article

103.001 of the Code of Criminal Procedure. (I CR gen.). However, the trial court has in

it’s judgment, and in an order attached thereto, directed TDCJ to withdraw from Ms.

Gilmore’s inmate trust account “[c]ourt costs, fees and/or fines and/or restitution in the

amount of $344.00.”1 (I CR 54, 56). Such an order is valid only if issued in such a way

as to ensure constitutional due process to a defendant. Harrell v. State, 286 S.W.3d 315,

320 (Tex. 2009); U.S. CONST. amend. XIV; TEX. CONST. art. I § 19. Due process re-

quires, in part, that an inmate be informed of the statutory basis of the withdrawal. Id. at

321; Snelson v. State, 326 S.W.3d 754, 756 (Tex.App.—Amarillo 2010, no pet.); Wil-

liams v. State, 322 S.W.3d 301 (Tex.App.—Amarillo 2010, no pet.). This is because a

defendant has a right to challenge whether those costs were correctly assessed. See, gen.,

Williams, 332 S.W.3d 694 (defendant challenging inclusion of court appointed attorney

fees in bill of costs). Thus, without the bill of costs, Ms. Gilmore is subject to an order

that violates his right to due process and which has no basis in fact.

Where an appellate court cannot determine from the record the statutory basis for

costs imposed against a defendant it should modify the trial court judgment to delete any

1 Section 501.014(e) of the Texas Government Code statutorily authorizes these withdrawal or- ders.

unsupported costs.2 Solomon v. State, 392 S.W.3d 309 (Tex.App.—San Antonio 2012);

Johnson v. State, 389 S.W.3d 513 (Tex.App.—Houston [14th Dist.] 2012). Therefore, it

is prayed that, because the record does not contain any information from which the Court

can determine the basis for the costs imposed that it delete those costs from the trial

court’s withholding order.

CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, counsel prays that because there is

no bill of costs to support the imposed costs of court, that the Court modify the underly-

ing withholding order to delete those costs not supported by the record.

/s/ Austin Reeve Jackson Texas Bar No. 24046139 112 East Line, Suite 310 Tyler, TX 75702 Telephone: (903) 595-6070 Facsimile: (866) 387-0152

CERTIFICATE OF SERVICE

I certify that a true and correct copy of this brief was delivered to counsel for the

State by facsimile on this the 6th day of March 2014.

/s/ Austin Reeve Jackson

2 The State or Court on its own motion may also seek supplementation of the record with a prop- er Bill of Costs. Johnson v. State, 423 S.W.3d 385, 395-96 (Tex.Crim.App. 2014) (holding that there must be an evidentiary basis, from a formal bill or otherwise, from which the Court can de- termine whether the amount ordered as costs is correct).

CERTIFICATE OF COMPLIANCE

I certify that this document complies with the requirements of Rule 9.4 and con-

sists of 1,107 words.