Valerie Salyards Gilmore v. State

Opinion

ACCEPTED 12-15-00049-CR TWELFTH COURT OF APPEALS TYLER, TEXAS 6/8/2015 5:17:19 PM CATHY LUSK CLERK

NUMBER 12-15-00049-CR

FILED IN 12th COURT OF APPEALS IN THE TWELFTH DISTRICT COURT OF APPEALS TYLER, TEXAS TYLER, TEXAS 6/8/2015 5:17:19 PM CATHY S. LUSK Clerk VALERIE SALYARDS GILMORE, Appellant

v.

THE STATE OF TEXAS, Appellee

From the 7th District Court of Smith County, Texas Trial Cause Number 007-1439-14

STATE’S BRIEF

ORAL ARGUMENT NOT REQUESTED

D. MATT BINGHAM Criminal District Attorney Smith County, Texas

AARON REDIKER Assistant District Attorney State Bar of Texas Number 24046692 Smith County Courthouse, 4th Floor Tyler, Texas 75702 Phone: (903) 590-1720 Fax: (903) 590-1719 Email: arediker@smith-county.com T ABLE OF C ONTENTS

Index of Authorities.............................................................................................. 2

Statement of Facts ................................................................................................ 4

Summary of Argument ......................................................................................... 4

I.ISSUE: The trial court did not err in assessing a specific amount of court costs against appellant in the judgment and withdrawal order because a bill of costs was properly added to the record through a supplemental clerk’s record. ....... 4 Standard of Review .............................................................................................. 4 Argument ...............................................................................................................5

Certificate of Compliance .................................................................................... 10

Certificate of Service ........................................................................................... 10

1 I NDEX OF A UTHORITIES

Texas Cases Allen v. State, 426 S.W.3d 253 (Tex. App.—Texarkana 2013, no pet.) ...................... 8 Armstrong v. State, 340 S.W.3d 759 (Tex. Crim. App. 2011) ..................................... 5, 6 Ballinger v. State, 405 S.W.3d 346 (Tex. App.—Tyler 2013, no pet.) ........................ 6 Brewer v. State, 572 S.W.2d 719 (Tex. Crim. App. 1978) ............................................... 9 Johnson v. State, 405 S.W.3d 350 (Tex. App.–Tyler 2013, no pet.) ............................. 7 Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014) ........................................... 5, 8 Owen v. State, 352 S.W.3d 542 (Tex. App.–Amarillo 2011, pet. ref’d) ...................... 8

Texas Statutes Tex. Code Crim. Proc. Ann. art. 102.0045............................................................................. 7 Tex. Code Crim. Proc. Ann. art. 102.005 ............................................................................... 7 Tex. Code Crim. Proc. Ann. art. 102.011 ............................................................................... 7 Tex. Code Crim. Proc. Ann. art. 102.0169............................................................................. 7 Tex. Code Crim. Proc. Ann. art. 102.017 ............................................................................... 7 Tex. Code Crim. Proc. Ann. art. 102.0178............................................................................. 7 Tex. Code Crim. Proc. Ann. art. 103.001 ............................................................................... 5 Tex. Code Crim. Proc. Ann. art. 103.006 ............................................................................... 6 Tex. Code Crim. Proc. Ann. art. 103.009 ............................................................................... 8 Tex. Gov’t Code Ann. § 51.851 .................................................................................................. 7 Tex. Loc. Gov’t Code Ann. § 133.102 ...................................................................................... 7 Tex. Loc. Gov’t Code Ann. § 133.103 ...................................................................................... 7 Tex. Loc. Gov’t Code Ann. § 133.105 ...................................................................................... 7 Tex. Loc. Gov’t Code Ann. § 133.107 ...................................................................................... 7

Texas Rules Tex. R. App. P. 34.5 ......................................................................................................................... 6 Tex. R. App. P. 43.2 ......................................................................................................................... 8

Other Authorities TEX. OFFICE OF COURT ADMIN., DISTRICT CLERK'S FELONY COURT COST CHART (2013).... 7

2 NUMBER 12-15-00049-CR

IN THE TWELFTH DISTRICT COURT OF APPEALS TYLER, TEXAS

VALERIE SALYARDS GILMORE, Appellant

From the 7th District Court of Smith County, Texas Trial Cause Number 007-1439-14

STATE’S B RIEF

TO THE HONORABLE COURT OF APPEALS:

Comes now the State of Texas, by and through the undersigned Assistant

Criminal District Attorney, respectfully requesting that this Court overrule

appellant’s sole alleged issue, modify the judgment and withdrawal order to

reflect the court costs assessed in the bill of costs, and affirm the judgment of

the trial court in the above-captioned cause as modified.

3 S TATEMENT OF F ACTS

Appellant has stated the essential nature of the proceedings and the

evidence presented at trial (Appellant's Br. 2). In the interest of judicial

economy, any other facts not mentioned therein that may be relevant to

disposition of appellant's alleged issue will be discussed in the State's

arguments in response.

Summary of Argument

As the record was properly supplemented with a bill of costs following

appellant’s notice of appeal, the trial court did not err in assessing a specific

amount of court costs in the judgment and withdrawal order. Where, as here,

the bill of costs reflects a different amount than that imposed in the judgment

and withdrawal order, the Court should modify the judgment and withdrawal

order to reflect the amount of court costs assessed in the bill.

I. I SSUE : The trial court did not err in assessing a specific amount of court costs against appellant in the judgment and withdrawal order because a bill of costs was properly added to the record through a supplemental clerk’s record .

S TANDARD OF R EVIEW

“[C]ourt costs are not part of the guilt or sentence of a criminal defendant,

nor must they be proven at trial; rather, they are ‘a nonpunitive recoupment of

4 the costs of judicial resources expended in connection with the trial of the

case.’” Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014) (citing

Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011)). “As a result,

we review the assessment of court costs on appeal to determine if there is a

basis for the cost, not to determine if there was sufficient evidence offered at

trial to prove each cost, and traditional Jackson evidentiary-sufficiency

principles do not apply.” Johnson, 423 S.W.3d at 390.

A RGUMENT

Appellant complains that the trial court erred ordering the withdrawal of

funds from her inmate trust account without a supporting bill of costs

(Appellant’s Br. 3-5). However, “a specific amount of court costs need not be

supported by a bill of costs in the appellate record for a reviewing court to

conclude that the assessed court costs are supported by facts in the record.”

Johnson, 423 S.W.3d at 395. Article 103.001 of the Code of Criminal Procedure

provides that, “[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 is

entitled to receive payment for the cost.” Tex. Code Crim. Proc. Ann. art.

103.001 (West 2014). “If a criminal action or proceeding is transferred from 5 one court to another or is appealed, an officer of the court shall certify and

sign a bill of costs stating the costs that have accrued and send the bill of costs

to the court to which the action or proceeding is transferred or appealed.”

Tex. Code Crim. Proc. Ann. art. 103.006 (West 2014). Moreover, “[c]ourt costs,

as reflected in a certified bill of costs, need neither be orally pronounced nor

incorporated by reference in the judgment to be effective.” Armstrong, 340

S.W.3d at 766. “If a relevant item has been omitted from the clerk's record,

the trial court, the appellate court, or any party may by letter direct the trial

court clerk to prepare, certify, and file in the appellate court a supplement

containing the omitted item.” Tex. R. App. P. 34.5(c)(1). “[A] bill of costs is a

relevant item that if omitted from the record, can be prepared and added to

the record via a supplemental clerk's record.” Johnson, 423 S.W.3d at 392.

Following her negotiated plea of guilty to the offense of possession of

methamphetamine, the trial court entered a judgment and withdrawal order

imposing court costs of $344.00 on 20 February 2015 (Clerk’s R. at 54-56).

However, the bill of costs filed by the Smith County District Clerk on 18 May

2015 shows the assessment of $369.00 in court costs and fees (Clerk’s R. Supp.

at 4). See, e.g., Ballinger v. State, 405 S.W.3d 346, 349 (Tex. App.—Tyler 2013,

no pet.) (“[S]upplementing the record to include the bill of costs is 6 appropriate and does not violate due process.”); Johnson v. State, 405 S.W.3d

350, 353 (Tex. App.–Tyler 2013, no pet.) (same). The charges listed in the bill

of costs and authority for each are as follows:

Authority Fee Description Amount Tex. Code Crim. Proc. art. 102.005(a) Clerk’s Fee $40.00 Tex. Loc. Gov’t Code § 133.102 Consolidated Court Fees $133.00 Tex. Code Crim. Proc. art. 102.005(f) Records Management $22.50 Tex. Code Crim. Proc. art. 102.017(a) Courthouse Security $5.00 Tex. Code Crim. Proc. art. Warrant Fee $50.00 102.011(a)(2) Tex. Code Crim. Proc. art. Bond Fee $10.00 102.011(a)(5) Tex. Code Crim. Proc. art. 102.005(f) Records Management & $2.50 Preservation Fee – DC Tex. Code Crim. Proc. art. 102.0045 Jury Service Fee $4.00 Tex. Loc. Gov’t Code § 133.105(a) Judiciary Fund State $5.40 Tex. Loc. Gov’t Code § 133.105(a) Judiciary Fund County $0.60 Tex. Loc. Gov’t Code § 133.107 Indigent Defense Court $2.00 Cost Tex. Code Crim. Proc. art. 102.0169 Technology Fee $4.00 Tex. Code Crim. Proc. art. 102.0178 Drug Court Program $60.00 Tex. Gov’t Code § 51.851(d) E-Filing Fees Criminal $5.00 Tex. Loc. Gov’t Code § 133.103 Time Payment $25.00 Total $369.00

(Clerk's R. Supp. at 4). See TEX. OFFICE OF COURT ADMIN., DISTRICT CLERK'S

FELONY COURT COST CHART (2013), available at

http://www.txcourts.gov/media/681164/dc-felctcst090113.pdf. The total

amount of court costs listed in the bill of costs exceeds the amount listed in

the judgment and withdrawal order by $25.00 due to the assessment of a time 7 payment fee after appellant failed to pay all of her court costs and fees within

thirty days of the date judgment was entered (Clerk’s R. at 54-56; Clerk’s R.

Supp. at 4). Tex. Loc. Gov’t Code Ann. § 133.103(a) (West 2014). See Allen v.

State, 426 S.W.3d 253, 259 (Tex. App.—Texarkana 2013, no pet.) (bill of costs

controls when amount listed differs from amount reflected in judgment);

Owen v. State, 352 S.W.3d 542, 547 (Tex. App.–Amarillo 2011, pet. ref’d) (citing

Tex. Code Crim. Proc. Ann. art. 103.009(a) and (c) (West 2006)) (“A clerk of a

court is required to keep a fee record, and a statement of an item therein is

prima facie evidence of the correctness of the statement.”). As the record was

properly supplemented with a bill of costs, the costs and fees imposed by the

trial court and ordered withdrawn from her inmate trust account are

supported by the record. See Johnson, 423 S.W.3d at 392, 395-96 (“[A]lthough

a bill of costs is not required to sustain statutorily authorized and assessed

court costs, it is the most expedient, and therefore, preferable method.”).

Therefore, appellant’s sole alleged issue is without merit and should be

overruled. Since the necessary data for reformation is apparent from the

record, the Court should modify the judgment and order to withdraw funds to

reflect the assessment of $369.00 in court costs and affirm the judgment as

modified. See Tex. R. App. P. 43.2(b); Brewer v. State, 572 S.W.2d 719, 723 (Tex. 8 Crim. App. 1978) (“Where the Court has the necessary data and evidence

before it for reformation, the judgment may be reformed on appeal.”).

PRAYER

WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that the

Court overrule appellant’s sole alleged issue, modify the judgment and

withdrawal order to reflect the assessment of $369.00 in court costs, and

affirm the judgment of the 7th District Court of Smith County, Texas, in the

above-captioned cause as modified.

Respectfully submitted,

D. MATT BINGHAM Criminal District Attorney Smith County, Texas

/s/ Aaron Rediker Aaron Rediker Assistant District Attorney SBOT #: 24046692 100 North Broadway, 4th Floor Tyler, Texas 75702 Office: (903) 590-1720 Fax: (903) 590-1719 (fax) arediker@smith-county.com

9 C ERTIFICATE OF C OMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned

attorney certifies that the word count for this document is 1,318 words as

calculated by Microsoft Word 2010.

/s/ Aaron Rediker Aaron Rediker

C ERTIFICATE OF S ERVICE

On 8 June 2015, a legible copy of the State’s Brief was sent by email to A.

Reeve Jackson, attorney for appellant, at JLawAppeals@gmail.com.