COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00254-CR
JAMES ALVIN GREENE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 97TH DISTRICT COURT OF MONTAGUE COUNTY
TRIAL COURT NO. 2013-0021M-CR
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MEMORANDUM OPINION 1
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In two points, James Alvin Greene contends that the trial court erred by
requiring him to pay $2,564 in court costs in its judgment adjudicating him guilty
of sexual assault. We modify the judgment to reduce the court costs to $564 and
affirm it as modified.
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See Tex. R. App. P. 47.4.
The State filed a petition to adjudicate appellant guilty of sexual assault, for
which he was on deferred adjudication community supervision. The trial court
found two of the allegations in the petition to adjudicate to be true. After
receiving a presentencing report, the trial court assessed appellant’s punishment
at ten years’ confinement. The trial court did not orally assess a fine. The
judgment included the imposition of “court costs” in the amount of $2,564. The
bill of costs prepared by the District Clerk’s office shows that $2,000 of the court
costs is attributable to a “fine” and that $450 is attributable to attorney’s fees.
In his first point, appellant contends that the court costs improperly
included a $2,000 fine assessed in the original order placing him on deferred
adjudication community supervision because the trial judge did not orally
pronounce the fine as part of appellant’s sentence upon adjudicating him guilty.
The State concedes that the $2,000 cannot properly be assessed as court costs.
See Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App. 2004). Therefore, we
sustain appellant’s first point.
In his second point, appellant challenges $450 of the remaining $564 in
court costs because he contends that the evidence is insufficient to show that he
has the ability to pay $450 in attorney’s fees. The original order placing appellant
on deferred adjudication, which was the result of a plea bargain, included $450 in
attorney’s fees. Because appellant did not challenge this part of the court costs
in a direct appeal from the order deferring adjudication, he has forfeited this
complaint. Wiley v. State, 410 S.W.3d 313, 320–21 (Tex. Crim. App. 2013); see
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also Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011) (explaining
that attorney’s fees may be included in court costs and, being nonpunitive, are
not required to be orally pronounced to be effective). We overrule appellant’s
second point.
Conclusion
Having sustained appellant’s first point and overruled his second point, we
modify the trial court’s judgment to reduce the court costs to $564 and affirm the
judgment as modified.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 26, 2015
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