NOS. 12-13-00104-CR
12-13-00105-CR
12-13-00106-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
MICHAEL LEE GUIN, § APPEAL FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Michael Lee Guin appeals his convictions for the offenses of possession of marijuana (trial
court cause number 114-1293-10, appellate cause number 12-13-00104-CR) and two instances of
possession of a controlled substance with intent to deliver (trial court cause number 114-1294-10,
appellate cause number 12-13-00105-CR) and (trial court cause number 114-1295-10, appellate
cause number 12-13-00106-CR). Appellant raises one issue on appeal relating to the imposition
of court costs. We modify and affirm as modified.
BACKGROUND
Appellant was charged by indictment for the felony offenses of possession of marijuana
and two instances of possession of controlled substance with intent to deliver.1 Appellant pleaded
guilty to all three cases. The trial court deferred its finding of guilt and placed Appellant on
1
See TEX. HEALTH & SAFETY CODE ANN. §§ 481.102(2), 481.112(c), 481.121(b)(3) (West 2010),
§§ 481.103(a)(1), 481.113(d) (West Supp. 2012).
deferred adjudication community supervision for a period of five years in Appellant’s possession
of marijuana case. The trial court also deferred a finding of guilt and placed Appellant on
deferred adjudication community supervision for a period of ten years in each of his possession
with intent to deliver cases.
The State filed an application to proceed to final adjudication in all three cases, and the
applications were amended before a hearing was held. Appellant pleaded “true” to all allegations
contained in each of the State’s applications. The trial court found the allegations in each
application for all three cases “true,” revoked Appellant’s community supervision, and found
Appellant “guilty” of possession of marijuana and two charges of possession of a controlled
substance with intent to deliver. In the possession of marijuana case, the trial court assessed
punishment at two years of confinement without a fine. In one of the possession with intent to
deliver cases, the trial court assessed punishment at thirty years of imprisonment without a fine.
In the other, the trial court assessed punishment at twenty years of imprisonment without a fine.
In all three cases, the trial court ordered court costs to be paid.
The judgment adjudicating Appellant’s guilt for possession of marijuana assessed $270.00
in court costs. The judgments adjudicating guilt for both of Appellant’s possession of controlled
substance with intent to deliver each assessed $370.00 in court costs. At the time the judgments
were signed, a bill of costs was not included in the record in any of the cases.
SUFFICIENCY OF THE EVIDENCE SUPPORTING COURT COSTS
Appellant argues that the trial court erred by imposing court costs that were not supported
by the bill of costs and by ordering the court costs to be withdrawn from his inmate trust account.
We construe Appellant’s issue as a challenge to the sufficiency of the evidence supporting court
costs. After Appellant filed his brief, the record in each case was supplemented with a bill of
costs. See Johnson v. State, No. 12-12-00289-CR, 2013 WL 3054994, at *2 (Tex. App.—Tyler
June 19, 2013, no pet.) (permitting supplementation of record with bill of costs and conducting
sufficiency analysis).2
2
In his brief, Appellant argues that his due process rights were violated because the imposition of court costs
contained in the withdrawal order attached to the judgment was issued without informing him of the statutory basis of
the withdrawal. He contends that, because the bill of costs was not included in the record, he has no way to
determine, or challenge, whether the costs were correctly assessed. The bill of costs is now included in the record.
2
Applicable Law
A challenge to the sufficiency of the evidence supporting court costs is reviewable on
direct appeal in a criminal case. See Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App.
2011).3 We measure sufficiency by reviewing the record in the light most favorable to the award.
Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Cardenas v. State, No.
01-11-01123-CR, 2013 WL 1164365, at *6 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013, pet.
granted) (not yet released for publication). Requiring a convicted defendant to pay court costs
does not alter the range of punishment, is authorized by statute, and is generally not conditioned on
a defendant’s ability to pay. See TEX. CODE CRIM. PROC. ANN. art. 42.16 (West 2006);
Armstrong, 340 S.W.3d at 767; see also Johnson, 2013 WL 3054994, at *3.
Discussion
The judgment adjudicating guilt for possession of marijuana reflects that the trial court
assessed $270.00 in court costs. The judgment includes a document identified as “Attachment A
Order to Withdraw Funds,” which states that Appellant has incurred “[c]ourt costs, fees and/or
fines and/or restitution” in the amount of $270.00. The bill of costs assesses $284.00 in court
costs, and shows that the remaining balance is $284.00. Accordingly, the evidence is sufficient to
support the trial court’s assessment of $270.00 in court costs. We overrule Appellant’s issue as it
pertains to cause number 12-13-00104-CR.
The judgments adjudicating guilt in both of Appellant’s possession with intent to deliver
cases reflect that the trial court assessed $370.00 in court costs. Each judgment also includes a
document identified as “Attachment A Order to Withdraw Funds,” which states that Appellant has
incurred “[c]ourt costs, fees and/or fines and/or restitution” in the amount of $370.00. The bill of
Appellant has not been deprived of the opportunity to file a supplemental or reply brief to challenge whether any of the
costs imposed were properly assessed.
3
In its brief, the State argues that Appellant was required to preserve error in order to challenge the
assessment of costs and that Appellant is required to request that the bill of costs be included in the record. We
disagree with both of these contentions. A challenge to the sufficiency of the evidence need not be preserved at the
trial level and is not waived by the failure to do so. Mayer v. State, 309 S.W.3d 552, 555 (Tex. Crim. App. 2010);
Cardenas v. State, No. 01-11-01123-CR, 2013 WL 1164365, at *5 (Tex. App.—Houston [14th Dist.] Mar. 21, 2013,
pet. granted) (not yet released for publication). Furthermore, Article 103.006 of the code of criminal procedure does
not condition the inclusion of a bill of costs in the record upon a party’s request. The language of Article 103.006
makes the dissemination of a bill of costs mandatory upon a criminal action’s transfer or appeal. See TEX. CODE
CRIM. PROC. ANN. art. 103.006 (West 2006).
3
costs in both cases assess $274.00 in court costs, and show that the remaining balance is $274.00.
The State concedes, and we agree, that the evidence is insufficient to support the imposition of
$370.00 in court costs because this is more than the amount imposed by the bill of costs. The
evidence is, however, sufficient to support the imposition of $274.00 in court costs in both
possession with intent to deliver cases. Accordingly, we sustain Appellant’s sole issue in part.
DISPOSITION
Having overruled Appellant’s sole issue as it relates to cause number 12-13-00104-CR, we
affirm the judgment of the trial court. See TEX. R. APP. P. 43.2(a).
Having sustained Appellant’s sole issue in part as it relates to cause numbers
12-13-00105-CR and 12-13-00106-CR, we modify both judgments to reflect that the amount of
court costs assessed is $274.00. See TEX. R. APP. P. 43.2(b). We also modify Attachment A in
both cause numbers to delete the assessment of $370.00 and to state that the total amount of “court
costs, fees and/or fines and/or restitution” is $274.00. See Ballinger v. State, No.
12-12-00280-CR, 2013 WL 3054935, at *3 (Tex. App.—Tyler June 19, 2013, no pet.) (not yet
released for publication). We affirm the judgments of the trial court as modified in cause
numbers 12-13-00105-CR and 12-13-00106-CR. See TEX. R. APP. P. 43.2(b).
JAMES T. WORTHEN
Chief Justice
Opinion delivered August 29, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
4
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
AUGUST 29, 2013
NO. 12-13-00104-CR
MICHAEL LEE GUIN,
Appellant
V.
THE STATE OF TEXAS,
Appellee
_____________________________________________________________________________
Appeals from the 114th Judicial District Court
of Smith County, Texas. (Tr.Ct.No. 114-1293-10)
_____________________________________________________________________________
THIS CAUSE came to be heard on the appellate record and briefs filed herein,
and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below for
observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
AUGUST 29, 2013
NO. 12-13-00105-CR
MICHAEL LEE GUIN,
Appellant
V.
THE STATE OF TEXAS,
Appellee
_____________________________________________________________________________
Appeal from the 114th Judicial District Court
of Smith County, Texas. (Tr.Ct.No. 114-1294-10)
_____________________________________________________________________________
THIS CAUSE came on to be heard on the appellate record and the briefs filed
herein; and the same being inspected, it is the opinion of the Court that the trial court’s judgment
below should be modified and, as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the trial court’s
judgment in this cause be modified to reflect that the court costs assessed is $274.00. We also
modify Attachment A to delete the assessment of $370.00 and to state that the total amount of “court
costs, fees and/or fines and/or restitution” is $274.00; and as modified, the trial court’s judgment is
affirmed; and that this decision be certified to the trial court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
6
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
AUGUST 29, 2013
NO. 12-13-00106-CR
MICHAEL LEE GUIN,
Appellant
V.
THE STATE OF TEXAS,
Appellee
_____________________________________________________________________________
Appeal from the 114th Judicial District Court
of Smith County, Texas. (Tr.Ct.No. 114-1295-10)
_____________________________________________________________________________
THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below should be modified and, as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment in this cause number be modified to reflect that the court costs assessed is
$274.00. We also modify Attachment A to delete the assessment of $370.00 and to state that the
total amount of “court costs, fees and/or fines and/or restitution” is $274.00; and as modified, the
trial court’s judgment is affirmed; and that this decision be certified to the trial court below for
observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
7