Affirmed as Modified and Memorandum Opinion filed July 30, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00775-CR
JOHN WOODS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause No. 1331540
MEMORANDUM OPINION
Appellant, John Woods, appeals his conviction for aggravated assault with a
deadly weapon. In two issues, appellant contends (1) the trial court erred by
admitting certain evidence, and (2) the evidence is insufficient to support the
specific amount of court costs assessed in the judgment. We modify the judgment
to delete the specific amount of court costs and affirm as modified.
I. BACKGROUND
According to the State’s evidence, appellant purchased a truck from
complainant. They agreed appellant would not drive the truck until he had paid all
monthly installments. On December 27, 2011, complainant encountered appellant
in a lot where he had moved the truck and confronted him about not driving it.
During the confrontation, appellant stabbed complainant three times with a knife.
The trial testimony was conflicting regarding which party instigated the
incident. Complainant testified he sat in the truck and started the ignition because
appellant wanted to demonstrate some mechanical work he had performed; while
complainant was seated in the truck, appellant stabbed him. In contrast, appellant
testified he reached inside to prevent complainant from driving away in the truck;
complainant struck appellant, and complainant’s friends attacked appellant with a
cane, so appellant stabbed complainant.
After the incident, complainant drove home alone in his own vehicle and lost
consciousness while still in the vehicle in front of his home. Complainant’s
relatives found him and called 9-1-1. Complainant eventually regained
consciousness in the hospital, where he was treated for a collapsed lung from a stab
wound. Appellant surrendered to the police later that evening.
A jury convicted appellant of aggravated assault with a deadly weapon,
thereby rejecting his self-defense claim. The trial court sentenced appellant to ten
years’ confinement and assessed $279 as court costs in the judgment.
II. ADMISSION OF EVIDENCE
In his first issue, appellant contends the trial court erred by admitting the
recording of a 9-1-1 call. At trial, the State offered recordings of three 9-1-1 calls.
Appellant objected to all of the recordings on the ground their probative value was
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substantially outweighed by the danger of unfair prejudice. The trial court
sustained the objection to two of the recordings but admitted one recording.
Although relevant, evidence “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice . . . .” Tex. R. Evid.
403. “Unfair prejudice,” as used in Rule 403, refers to a tendency to suggest
decision on an improper basis, commonly, though not necessarily, an emotional
one. Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006).
Evidence might be unfairly prejudicial if, for example, it arouses the jury’s
hostility or sympathy for one side without regard to the logical probative force of
the evidence. Id.
When conducting a Rule 403 analysis, a trial court must balance (1) the
inherent probative force of the proffered evidence, along with (2) the proponent’s
need for the evidence, against (3) any tendency of the evidence to suggest decision
on an improper basis, (4) any tendency of the evidence to confuse or distract the
jury from the main issues, (5) any tendency of the evidence to be given undue
weight by a jury that has not been equipped to evaluate probative force of the
evidence, and (6) the likelihood that presentation of the evidence will consume an
inordinate amount of time or merely repeat evidence already admitted. Id. at 641–
42. “Of course, these factors may well blend together in practice.” Id. at 642.
The trial court is not required to announce its conclusions relative to the
balancing test on the record; when, as in the present case, the record is silent, we
presume the trial court conducted the balancing test once Rule 403 was invoked.
Williams v. State, 958 S.W.2d 186, 195–96 (Tex. Crim. App. 1997). We review
the trial court’s ruling on a Rule 403 objection for abuse of discretion. State v.
Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). The trial court abuses its
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discretion only when its decision lies outside the zone of reasonable disagreement.
See id. at 440.
Appellant argues the only purpose for presenting the “emotionally charged”
9-1-1 recording was to impress the jury in an irrational way by allowing it to
consider the emotional effect of complainant’s injuries on his family rather than
the evidence. Appellant emphasizes it was undisputed he stabbed complainant and
the call did not establish any material fact.
However, the call is not “emotionally charged” to the extent suggested by
appellant or otherwise inflammatory. The call, made by complainant’s cousin
named “Kim,” is approximately four minutes long. Kim does sound excited, but
her state seems consistent with any reasonable person who has found, and is
tending to, a severely injured person. The recording primarily consists of (1) Kim
reporting complainant had been shot, then realizing he had been stabbed, and
stating he was “bleeding everywhere”; (2) followed by a discussion of
complainant’s injuries and Kim relaying the dispatcher’s medical advice to others
at the scene and also asking “who stabbed him?” Background voices on the
recording are mostly muffled. We conclude the trial court acted within its
discretion by determining the recording would not cause the jury to improperly
decide the case on an emotional, instead of evidentiary, basis. See Sierra v. State,
157 S.W.3d 52, 63 (Tex. App.—Fort Worth 2004), aff’d, 218 S.W.3d 85 (Tex.
Crim. App. 2007) (holding recording of 9-1-1 call was admissible over Rule 403
objection where callers, who had recently fled murder scene, were “excited and
distraught” but did not display such emotion as to inflame jurors to act on emotion
rather than evidence).
Moreover, the trial court acted within its discretion by determining the
recording was admissible to provide a framework for the State to develop its case.
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Because complainant lost consciousness after arriving at his home, he could not
provide full information regarding events after the incident. The recording assisted
in completing a timeline of the entire incident by providing information regarding
events between the stabbing and complainant’s hospitalization. See Estrada v.
State, 313 S.W.3d 274, 300 (Tex. Crim. App. 2010) (upholding admissibility of 9-
1-1 recording which featured murder victim’s relatives crying and screaming in
background and attempting to administer first aid because it “provide[d] a
framework within which the particulars of the State’s evidence could be
developed” even if recording “did not of itself establish any material fact not
otherwise proven in the balance of the State’s case”).
In summary, the trial court did not abuse its discretion by determining the
probative value of the recording was not substantially outweighed by the danger of
unfair prejudice. Accordingly, we overrule appellant’s first issue.
III. COURT COSTS
In his second issue, appellant contends the evidence is insufficient to support
the amount of court costs he was ordered to pay.
The Texas Code of Criminal Procedure requires the trial court to “adjudge
the costs against the defendant . . . .” Tex. Code Crim. Proc. Ann. art. 42.16 (West
2006). However, our court has held a trial court errs by entering a specific amount
of costs in the judgment without support in the record for that amount. Johnson v.
State, 389 S.W.3d 513, 516 (Tex. App.—Houston [14th Dist.] 2012, pet. granted);
see Rogers v. State, --- S.W.3d ----, No. 14-12-00182-CR, 2013 WL 2442194, at
*8 (Tex. App.—Houston [14th Dist.] June 6, 2013, pet. filed); Jelks v. State, 397
S.W.3d 759, 759–60 (Tex. App.—Houston [14th Dist.] 2013, pet. filed).
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Article 103.001 of the Texas Code of Criminal Procedure provides:
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 2006). The record in the present
case does not contain a bill of costs complying with article 103.001. Although
appellant requested that any bill of costs be included in the clerk’s record, there is
no such document in the original clerk’s record. The supplemental record contains
a document which the clerk listed, on the index of the record, as “Bill of Cost.”
However, the document is a “Justice Information Management System [“JIMS”]
Cost Bill Assessment,” reflecting the costs amount to $279. Our court has held
that a JIMS screen printout does not constitute an appropriate bill of costs under
article 103.001, without the signature of an officer specified in article 103.001; and
regardless, the printout will not support a specific amount of costs in the judgment
absent proof the printout was presented to the trial court before it entered the
amount. See Jelks, 397 S.W.3d at 759–60; Johnson, 389 S.W.3d at 515 n.1. The
JIMS printout in the present case is not signed. There is no indication the printout
was presented to the trial court before it entered $279 as the amount of costs on the
judgment.
The State responds by citing two provisions in the Code of Criminal
Procedure. Article 103.009 provides the clerk of the court, as well as other
entities, shall maintain a fee record, containing a statement of each fee or cost
charged for services in a criminal action, which can be inspected by any person.
See Tex. Code Crim. Proc. Ann. art. 103.009(a)–(b) (West 2006). Article
103.008(a) provides, “On the filing of a motion by a defendant not later than one
year after the date of the final disposition of a case in which costs were imposed,
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the court in which the case is pending or was last pending shall correct any error in
the costs.” Id. art. 103.008(a) (West 2006). The State contends the procedure
prescribed in article 103.008(a) is the proper method to challenge costs and
appellant may not raise this unpreserved error via a sufficiency challenge. A
defendant may challenge the amount of costs via a sufficiency point on direct
appeal. See Johnson, 389 S.W.3d at 515–17; see also Rogers, --- S.W.3d ----,
2013 WL 2442194, at *8; Jelks, 397 S.W.3d at 759–60.
Alternatively, the State cites ten provisions of the Code of Criminal
Procedure and three sections of the Local Government Code, outlining various
court costs to be paid by a defendant when convicted of a felony offense. The
State suggests these costs, if assessed against appellant, would support the $279
reflected in the judgment. We disagree, and our court has previously rejected this
argument:
To affirm the judgment for costs merely because a number of statutes
authorize certain costs or fees that could have been assessed against
the defendant—without regard to whether they were actually
assessed—would be speculative. Moreover, without any indication in
the record which specific fees or costs were actually assessed, a
defendant has no way to challenge their correctness on appeal or as
provided under article 103.008 of the Code of Criminal Procedure.
See Tex. Code Crim. Proc. art. 103.008 . . . . We therefore reject the
State’s argument that the record supports the [specific amount
entered] in costs assessed in [the appellant’s] judgment merely
because the trial court is authorized to impose applicable costs which,
in some hypothetical combination, would equal or exceed the total
amount of costs actually assessed in the judgment.
Rogers, --- S.W.3d ----, 2013 WL 2442194, at *8.
In summary, the trial court did not err by ordering appellant to pay court
costs but erred by entering $279 as the costs absent support for that amount in the
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record. See id.; Jelks, 397 S.W.3d at 759–60; Johnson, 389 S.W.3d at 516–17.
We sustain appellant’s second issue.
We modify the trial court’s judgment to delete the specific amount of costs
assessed and affirm the judgment as modified.
/s/ John Donovan
Justice
Panel consists of Justices Frost, Boyce, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).
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