Williams, Charles Edward v. State

Opinion

AFFIRM; and Opinion Filed November 12, 2013.

S In The Court of Appeals Fifth District of Texas at Dallas

No. 05-12-00987-CR

CHARLES EDWARD WILLIAMS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 4 Dallas County, Texas Trial Court Cause No. F12-54675-K

MEMORANDUM OPINION Before Justices O'Neill, Lang-Miers, and Evans Opinion by Justice Lang-Miers

Appellant Charles Edward Williams pleaded guilty, without a plea bargain, to the offense

of theft and executed a judicial confession admitting to the offense. The trial court found

appellant guilty and assessed his punishment at two years in state jail and a $750 fine. In two

issues on appeal, appellant argues that the trial court abused its discretion by sentencing

appellant to two years’ imprisonment and argues that there was not sufficient evidence in the

record to support the court’s order that appellant pay $219 in court costs. Because all dispositive

issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We

affirm the trial court’s judgment. PUNISHMENT

Appellant pleaded guilty to theft of property valued under $1,500. See TEX. PENAL CODE

ANN. § 31.03 (West Supp. 2012). The State introduced into evidence, without objection,

appellant’s judicial confession and stipulation of evidence relating to the theft in this case and of

two prior theft convictions. Appellant’s two prior theft convictions enhanced the offense to a

state jail felony. See id. § 31.03(e)(4)(D).

In his first issue, appellant argues that the trial court abused its discretion by sentencing

appellant to a term in state jail because the punishment does not meet the objectives of the penal

code. Appellant argues that the sentence is “merely punitive” and does not “meet the objective

of rehabilitation” or “address Appellant’s drug addiction.” The State argues that appellant failed

to preserve this issue for appellate review and, alternatively, that the record does not demonstrate

that the trial court abused its discretion by violating the objectives of the penal code in assessing

appellant’s prison sentence. We agree with the State.

A defendant must make a timely request or motion in the trial court to preserve alleged

error. TEX. R. APP. P. 33.1(a)(1); see Castaneda v. State, 135 S.W.3d 719, 723 (Tex. App.—

Dallas 2003, no pet.). Here, in response to the court’s question whether there was any reason

appellant should not be sentenced, his counsel answered, “No, sir.” He did not object after

sentencing.

Nevertheless, appellant argues that he preserved his complaint for appellate review.

Appellant first argues that he was not required to state a specific objection to the punishment at

the time it was pronounced because the objection or ground for appeal was apparent from the

context. See TEX. R. APP. P. 33.1(a)(1)(A) (stating that, to preserve complaint for appellate

review, record must show that complaining party stated grounds for the ruling sought from the

trial court “unless the specific grounds were apparent from the context”). Appellant contends

–2– that, because he pleaded guilty and asked the court for probation on the condition that he

complete a drug treatment program, the “only real issue” before the trial court was whether the

court should sentence appellant to imprisonment or place him on probation. Appellant argues

that, under these circumstances, an objection “to the exact terms of years assessed was

unnecessary and would have been redundant.” Appellant cites three cases to generally support

his argument that under certain circumstances an objection is not required to preserve a ground

for appellate review. Montgomery v. State, 99 S.W.3d 257, 259–60 (Tex. App.—Fort Worth

2003, pet. struck) (sua sponte withdrawal of plea where innocence raised); Edwards v. State, 21

S.W.3d 625, 626–27 (Tex. App.—Waco 2000, no pet.) (deadly weapon finding); Garza v. State,

841 S.W.2d 19, 23 (Tex. App.—Dallas 1992, no pet.) (order of restitution). But those cases do

not apply to the facts in this case.

Appellant also cites Hernandez v. State, 268 S.W.3d 176, 184 (Tex. App.—Corpus

Christi 2008, no pet.), and Jaenicke v. State, 109 S.W.3d 793, 795–96 (Tex. App.—Houston [1st

Dist.] 2003, pet. ref’d), for the contention that at least two Texas courts “have specifically held

that fundamental error in punishment, such as the failure to consider the full range of

punishment, can be raised, under certain circumstances for the first time on appeal.” But neither

Hernandez nor Jaenicke apply here. The Hernandez court concluded that a defendant could

complain for the first time on appeal “about a trial court’s refusal . . . to consider the full range of

punishment—so long as the trial judge’s conduct is so egregious as to deem the judge biased on

the matter of punishment.” 268 S.W.3d at 184. Similarly, the court in Jaenicke discussed an

accused’s due process right to a “neutral and detached judicial officer” and noted that a court’s

arbitrary refusal to consider the entire range of punishment would constitute a denial of due

process. 109 S.W.3d at 796. Here, the appellant does not allege that the trial judge was biased

against him or refused to consider the full range of punishment and those cases do not apply.

–3– Lastly, appellant argues that his motion for new trial “serves as adequate preservation”

because the motion stated that the verdict was contrary to the law and to the evidence and the

motion argued that “the sentence assessed by the trial court violates the objectives of the system

of prohibitions, penalties, and correctional measures of the Penal Code.” But appellant does not

cite legal authority to support his argument and presents nothing for our review. See TEX. R.

APP. P. 38.1(i).

In summary, appellant pleaded guilty to theft of property valued at less than $1,500.

Appellant also stipulated and judicially confessed that he was convicted of two prior theft

offenses. The statutory range of punishment for the offense as enhanced by the two prior theft

offenses is imprisonment for not more than two years or less than 180 days and an optional fine

not to exceed $10,000. See TEX. PENAL CODE ANN. §§ 12.35(a), (b), 31.03(e)(4)(D) (West Supp.

2012). His punishment falls within this statutory range and does not violate the objectives of the

penal code. See Jackson v. State, 680 S.W.2d 809, 814 (Tex. Crim. App. 1984) (stating the

“general rule that as long as a sentence is within the proper range of punishment it will not be

disturbed on appeal”); Carpenter v. State, 783 S.W.2d 232, 232–33 (Tex. App.—Dallas 1989, no

pet.).

COURT COSTS

In his second issue, appellant argues that the evidence is not sufficient to support the

specific amount of court costs—$219—that the court ordered appellant to pay. 1 Appellant cites

Johnson v. State, 389 S.W.3d 513, 515–17 (Tex. App.—Houston [14th Dist.] 2012, pet. granted),

to support his argument that, because the record does not contain a written bill of costs, the

judgment should be reformed to delete the specific amount of court costs.

1 Appellant refers at one point in his brief to the trial court’s order that he pay $244 in costs, but throughout the rest of his brief, appellant refers to the court’s order that he pay $219 in costs. The judgment reflects that the court ordered appellant to pay $219 in court costs.

–4– Although the original record filed in this Court did not contain a bill of costs, on this

Court’s own motion, we ordered the district clerk to supplement the clerk’s record with a

detailed itemization of the costs assessed in the case, including specific court costs, fees, and

court appointed attorney’s fees. See TEX. R. APP. P. 34.5(c)(1) (stating that, if a relevant item has

been omitted from the clerk’s record, supplementation of the clerk’s record allowed). The

district clerk subsequently filed a supplemental clerk’s record that contains two pages of a

computer printout itemizing the court costs in the case and showing a total of $244 in court costs.

The supplemental record also includes a bill of costs certification signed by the deputy district

clerk.

Because the clerk’s record now contains a bill of costs, appellant’s argument that the

evidence supporting costs was not sufficient because the record contained no bill of costs is now

moot. See Coronel v. State, No. 05-12-00493-CR, 2013 WL 3874446, at *4 (Tex. App.—Dallas

July 29, 2013, pet. filed); Franklin v. State, 402 S.W.3d 894, 895 (Tex. App.—Dallas 2013, no

Appellant subsequently filed objections to the supplemental clerk’s record. In his first

objection, he argues that the computer printouts and bill of costs certification in the supplemental

record do not constitute a bill of costs for purposes of code of criminal procedure article 103.001.

See TEX. CODE CRIM. PROC. ANN. art. 103.001 (West 2006). Relying on Johnson, 389 S.W.3d at

515 n.1, appellant contends that the “unsigned, unsworn computer printouts” do not satisfy the

requirement of article 103.001 that the bill of costs be “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.

As we concluded in Coronel, 2013 WL 3874446, at *4, however, the code of criminal

procedure requires that there be a record of costs but it does not specify the form of the bill of

–5– costs, except that it must be certified and signed by “the officer who charged the cost or the

officer who is entitled to receive payment for the cost” and that it state “the costs that have

accrued” if the case is appealed. See TEX. CODE CRIM. PROC. ANN. arts. 103.001, 103.006 (West

2006). In this case, the district court filed a bill of costs certification that certifies that “the

following documents constitute costs that have accrued to date” in appellant’s cause. The

certification is certified and signed by the deputy district clerk. As a result, the documents

submitted meet the requirements of the code of criminal procedure for a bill of costs and

appellant’s argument that the documents are not “a proper bill of costs” lacks merit.

In his second objection, appellant argues that there is no evidence that the trial court

considered the computer printouts or that they were brought to the court’s attention before the

court assessed costs in the judgment. Appellant similarly argues that there is no evidence that

the computer printouts existed at the time of judgment and, as a result, there is no evidence that

the printouts constituted omitted items that were permissible to supplement the clerk’s record.

See TEX. R. APP. P. 34.5(c) (allowing supplementation of the clerk’s record if “a relevant item

has been omitted from the clerk’s record”). Citing the United States and Texas Constitutions,

appellant contends that nothing in rule of appellate procedure 34.5(c) contemplates the creation

of a document after trial that would place an additional burden upon the defendant without the

defendant having notice and the opportunity to challenge that burden. See U.S. CONST. amend.

XIV; TEX. CONST. art. I, § 19. But as this Court concluded recently in Coronel, “nothing in the

code of criminal procedure or the statutes addressing the assessment of costs against defendants

requires that a bill of costs be presented to the trial court at any time before judgment.” 2013

WL 3874446, at *5. Court costs “are defined and mandated by statute” and, as a result, “are not

subject to approval or authorization by the trial court.” Id. In addition, the code does not require

that a bill of costs be filed at the time the court signs the judgment, but requires the production of

–6– a bill of costs if a criminal case is appealed or costs are collected. Id. We conclude that

appellant’s second objection to the supplemental record lacks merit.

Given our resolution of this issue, we do not address the State’s argument that, if we

conclude there was no evidence to support the assessment of costs, we should reform the

judgment to reflect the amount of statutorily-designated costs reflected in the record.

We resolve appellant’s second issue against him.

CONCLUSION

We resolve appellant’s two issues against him and affirm the trial court’s judgment.

/Elizabeth Lang-Miers/ ELIZABETH LANG-MIERS JUSTICE

Do Not Publish Tex. R. App. P. 47

120987F.U05

–7– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

CHARLES EDWARD WILLIAMS, On Appeal from the Criminal District Court Appellant No. 4, Dallas County, Texas Trial Court Cause No. F12-54675-K. No. 05-12-00987-CR V. Opinion delivered by Justice Lang-Miers; Justices O'Neill and Evans participating. THE STATE OF TEXAS, Appellee

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 12th day of November, 2013.

–8–