IN THE
TENTH COURT OF APPEALS
No. 10-12-00204-CR
BRIAN COOK,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 52nd District Court
Coryell County, Texas
Trial Court No. FISC-11-20887
ABATEMENT ORDER
On August 30, 2011, appellant was charged by indictment with aggravated
sexual assault of a child, a first-degree felony. See TEX. PENAL CODE ANN. § 22.021 (West
Supp. 2012). Prior to trial, appellant executed a financial affidavit, wherein he averred
that he is “without means to employ counsel of my own choosing[,] and I hereby
request the court to appoint counsel for me.” The trial court determined that appellant
is indigent and appointed counsel.
Appellant subsequently entered an open plea of guilty to the charged offense.
The trial court accepted appellant’s plea and sentenced him to twelve years’
incarceration in the Institutional Division of the Texas Department of Criminal Justice
with no fine. In addition, the trial court ordered that appellant pay $599.00 in court
costs. An order to withdraw funds from appellant’s inmate account was incorporated
in the judgment.1 However, the Clerk’s Record does not contain a certified bill of costs.
In his appellant’s brief, appellant argues that the evidence is insufficient to
support the amount of court costs assessed by the trial court in this case. Appellant also
contends that the trial court erred by assessing court costs when there was no bill of
costs prepared, though required by article 103.001 of the Texas Code of Criminal
Procedure. See TEX. CODE CRIM. PROC. ANN. art. 103.001 (West 2006).
A review of the record demonstrates that appellant did not object to the amount
of costs in the trial court or the procedure by which the amount of costs was
determined. However, the Texas Court of Criminal Appeals has held that no such
objection is required to raise an appellate challenge to the sufficiency of the evidence to
support the award of costs. See Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App.
2010). We review the sufficiency of the evidence to support the award of costs by
viewing all record evidence in the light most favorable to the award. Id. at 557.
Appellant’s arguments are premised entirely on the fact that when the Clerk’s
Record was prepared, no bill of costs was included. Article 103.001 of the Texas Code
The following terms are listed at the bottom of the order to withdraw funds: “NEW BILL OF
1
COSTS.” In any event, the record does not contain an itemized list of costs.
Cook v. State Page 2
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. Moreover,
article 103.009(a)(1) states that the district clerk is required to “keep a fee record,” which
must contain “a statement of each fee or item of cost charged for a service rendered in a
criminal action or proceeding. See id. art. 103.009(a)(1) (West 2006); see also Thomas v.
State, No. 01-12-00487-CR, 2013 Tex. App. LEXIS 2989, at *2 (Tex. App.—Houston [1st
Dist.] Mar. 21, 2013, no pet. h.); Cardenas v. State, No. 01-11-01123-CR, 2013 Tex. App.
LEXIS 2980, at *12 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013, no pet. h.) (op. on
reh’g). Furthermore, article 103.006 provides that “[i]f a criminal action . . . 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 2006).
No document constituting a bill of costs in this case has been created, certified,
signed, and sent to this Court by the time appellant filed his appellant’s brief, wherein
he objected to the sufficiency of the evidence supporting the assessment of court costs.2
Nevertheless, the rules of appellate procedure provide that “[a] court of appeals must
not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities
in appellate procedure without allowing a reasonable time to correct or amend the
2 Unless relevant, a bill of costs is not normally required to be part of an appellate record in a
criminal case. Cf. TEX. R. APP. P. 34.5(a)(11) (requiring that a bill of costs be included in the Clerk’s Record
in civil cases); see also Gonzales v. State, No. 07-10-00383-CR, 2012 Tex. App. LEXIS 6905, at **4-5 (Tex.
App.—Amarillo Aug. 17, 2012, pet. ref’d) (mem. op., not designated for publication).
Cook v. State Page 3
defects or irregularities.” TEX. R. APP. P. 44.3. Moreover, we are specifically authorized
to direct the trial court clerk to supplement the record with any relevant omitted item.
See id. at R. 34.5(c)(1), (3); see also Cardenas, 2013 Tex. App. LEXIS 2980, at *13.
Accordingly, based upon these authorities, and to facilitate our review of this
case, we abate and remand this proceeding for the trial court clerk “to prepare, certify,
and file a supplemental record containing a bill of costs,” and in the event no bill of
costs then existed, we order “the trial court clerk or an officer of the court . . . to prepare
a bill of costs for inclusion in the supplemental record.” See, e.g., Thomas, 2013 Tex. App.
LEXIS 2989, at **2-3; Cardenas, 2013 Tex. App. LEXIS 2980, at **13-14 (ordering the
supplementation of the Clerk’s Record with a proper bill of costs and noting that
“article 103.006 does contemplate that a bill of costs shall be certified, signed, and sent
upon the appeal of a criminal action, which necessarily occurs after the entry of a final
judgment” in rejecting appellant’s argument that a supplemented bill of costs cannot be
considered on appeal); Jones v. State, No. 06-12-00107-CR, 2013 Tex. App. LEXIS 2832, at
*16 (Tex. App.—Texarkana Mar. 19, 2013, no pet. h.) (mem. op., not designated for
publication) (“We conclude, however, that supplementation with a newly created bill of
costs is not prohibited by this general rule [i.e., supplementation rules cannot be used to
create new evidence]. Unlike actions taken by the trial court after an appellate record
has been filed, there appears to be no authority limiting the district clerk’s jurisdiction
to prepare the bill of costs after an appellate record has been filed”.). The supplemental
clerk’s record required by the above-mentioned rules, if any, is ordered to be filed
within 42 days of the date of this Order.
Cook v. State Page 4
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal abated
Order issued and filed April 18, 2013
Do not publish
[CR25]
Cook v. State Page 5