Ronie Wayne Smith v. State

Opinion issued June 30, 2014

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-12-00485-CR
———————————
RONIE WAYNE SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court
Harris County, Texas
Trial Court Case No. 1276338

OPINION

A jury convicted appellant Ronie Wayne Smith of aggravated sexual assault

of a child less than 14 years old. See TEX. PENAL CODE ANN. § 22.021 (West

2011). The trial court determined punishment, sentencing Smith to 25 years in
prison. The judgment also reflects $484.00 in statutory court costs. On appeal,

Smith argues that the trial court erred by permitting the State to question him about

a misdemeanor conviction for indecent exposure that was more than 10 years old.

He also challenges the sufficiency of the evidence to support the assessment of

$484.00 in statutory court costs. We affirm, as modified to correct the spelling of

Smith’s name and the assessment of mandatory statutory costs of court supported

by the record.

Background

The indictment in this case alleged that Ronie Wayne Smith unlawfully,

intentionally, and knowingly caused the sexual organ of the 13-year-old female

complainant to contact his own sexual organ. The evidence showed that late one

night after buying a snack at a convenience store, the complainant encountered

Smith. She saw him before she climbed over a fence on her way to an apartment

complex. Smith held her bag as she climbed over the fence. Once she was on the

other side, he returned the bag and then began touching her breasts and genitals

over her clothing. The complainant cried, kicked, and screamed for him to stop, but

he grabbed her, forced her to the ground, and raped her. The complainant then

returned to the apartment where she was staying. She testified that the assault was

painful and that she bled for several days afterward.

2
 The complainant did not immediately report the assault. More than a week

later, she told her teacher about the rape, and the teacher referred her to a school

counselor. The counselor spoke with her, called her mother, and reported the

outcry to the police. Houston Police Department Officer F. Medina met with the

complainant and her family at their home. At first she was embarrassed to speak

with him in front of her family, but when he pulled her aside, she was “extremely

detailed” in describing the assault. She described the attacker’s clothing, and she

noted that “he had several marks on his face,” “very bad teeth,” and “one of his

toenails was missing.” She told Officer Medina that she would be able to recognize

him.

Officer Medina contacted the counselor, who “basically gave the same

statement but in less detail” as had the complainant. The complainant’s parents

took her to Texas Children’s Hospital where she underwent a sexual assault

examination, which revealed internal and external abrasions in her genital area that

were consistent with her outcry. However, because of the passage of time since the

assault, no DNA evidence was collected.

The day after the complainant’s outcry, her family members told her that

they thought they knew the identity of her attacker and that they had seen him near

the place where the assault occurred. They drove her to the location, where she saw

3
Smith and identified him as the man who raped her. When she left with her mother

to call the police, several of her relatives attacked Smith in retaliation for the rape.

H.P.D. Sergeant D. Schlosser was on patrol when he was dispatched to the

scene of the assault on Smith. He described the scene as “tremendously chaotic”

with people “yelling, screaming, [and] hollering” “various things,” including “he’s

a rapist.” Sgt. Schlosser testified that the complainant and her mother were present

and that he understood the crowd to consist of her friends and family. Smith was

sitting in front of a house, and he was injured and bleeding. Sgt. Schlosser accessed

a copy of the police report regarding the sexual assault, which included the

complainant’s detailed description. Sgt. Schlosser asked Smith to remove his

shoes, and he observed that Smith’s feet were “very unkempt,” had a “very putrid,

pungent smell,” and “the pinky toes almost appeared as though they didn’t have a

toenail.” Suspecting that Smith was the alleged assailant, Sgt. Schlosser contacted

the Juvenile Sex Crimes investigators while Smith was treated by a Houston Fire

Department ambulance crew. 1

1
While in the ambulance, Smith asked to speak to a police officer. When Sgt.
Schlosser approached him, Smith blurted out, “Just go ahead and give me the
case.” Sgt. Schlosser asked him what he meant, and Smith replied, “Just go ahead
and give me the case because if I stay out here they’re going to kill me.” Sgt.
Schlosser then read Smith his Miranda rights, contacted the Juvenile Sex Crimes
sergeant, and assigned an officer to accompany Smith to the hospital to ensure that
he would not escape.

4
 H.P.D. Officer E. Hanson with the Juvenile Sex Crimes Division followed

up with the complainant and her mother. She also prepared a photographic lineup

from which the complainant identified Smith. In addition, the complainant gave a

statement that was consistent with what she had previously told other officers.

Officer Hanson interviewed Smith, who waived his rights to remain silent

and to an attorney and gave a recorded statement. In the statement, he initially

denied having come into contact with the complainant, but when Officer Hanson

mentioned the possible existence of DNA evidence, Smith said he had helped her

with her bag.

Prior to trial, the State filed a notice of its intent to use evidence of Smith’s

29 prior convictions, ranging in date from January 1994 through January 2010. The

offenses included: 10 convictions for criminal trespass; three convictions for

terroristic threat; three convictions for theft crimes; three convictions for

possession of a controlled substance; two convictions for unlawfully carrying a

weapon; and one conviction each for assault, indecent exposure, evading detention,

evading arrest, resisting arrest, criminal mischief, delivery of a controlled

substance, and public intoxication.

Trial was held in May 2012. The complainant, the police officers, and the

sexual assault nurse examiner all testified. The nurse recounted what the

complainant had told the doctor when she was seen at the hospital, and this

5
recollection was consistent with the complainant’s own trial testimony. The nurse

testified that there was physical evidence of sexual trauma, but on cross-

examination she conceded that she could not determine if it was caused by

consensual or nonconsensual sexual intercourse.

Before Smith testified, the court held a hearing outside the presence of the

jury to determine which of his prior convictions would be admissible for

impeachment. The State sought to introduce for the purpose of impeachment all of

Smith’s felony offenses from the 10 years prior to trial (two felony convictions for

possession of a controlled substance, a felony conviction for theft as a third

offender, a felony conviction for theft from a person, and a felony conviction for

delivery of a controlled substance) and two convictions from more than 10 years

prior to trial (felony theft from a person in 2001 and misdemeanor indecent

exposure in 1999). Smith did not oppose the use of the 2001 conviction for theft

from a person or the felony convictions that were within the 10-year time frame.

However, he objected to the admission of the 1999 misdemeanor conviction

for indecent exposure. The State characterized that offense as a crime of moral

turpitude that was “highly relevant” to this case. Smith’s attorney argued:

I believe it’s highly prejudicial. I mean, it’s over ten years old.
Just the fact, you know, the nature of the description of the offense is
prejudicial. It—and, like I say, Judge, it’s over ten years old and my
understanding—I should have researched this and given it to the
Court, but my understanding is that the tacking laws are in doubt. I

6
 would argue that they don’t apply and it should be inadmissible under
the Rules of Evidence as improper impeachment.

....

The indecent exposure we’re talking about is 13 years ago. It’s
a misdemeanor, and I don’t know if that’s a crime of moral turpitude.

....

But even so, Judge, we’re talking about a 13-year-old
misdemeanor and just the description, considering the fact that my
client’s charged . . . with aggravated sexual assault of a child, I think
it’s going to carry a lot more—it’s going to be very prejudicial and I
don’t—I just—because of the description and what’s called . . . any
relevance is going to be outweighed by the prejudicial effect it will
have on the jury.

The State argued that the 1999 conviction was admissible despite its

remoteness because Smith had been convicted of additional crimes every year

thereafter in which he was not in custody. The court ruled that the felony theft

convictions were admissible but the felony drug convictions were not. The court

further ruled: “With regard to the 1999 indecent exposure, in weighing whether or

not the probative value of admitting the evidence outweighs its prejudicial effect,

this Court finds that the probative value does outweigh its prejudicial effect and is,

therefore, admissible.”

Smith then testified, and he repeatedly denied raping, fondling, or assaulting

the complainant in any way, saying, “She might have been raped, but I know it

wasn’t me that raped her. She might have the wrong person.” He initially denied

7
having seen the complainant prior to trial, but on cross-examination, he admitted

that he held her bag on the night of the assault.

The State also asked Smith about his prior felony convictions for theft as a

third offender, theft from a person (twice), and delivery of a controlled substance.

As to the indecent exposure conviction, the State asked only:

Q. And then you were convicted of indecent exposure in 1999, but
that one was a misdemeanor, correct?

A. Yes.

Q. That’s a crime of moral turpitude. Do you know what that
means?

A. No, ma’am.

Closing arguments centered on the credibility of the complainant and Smith.

The prosecutor repeatedly said, “the truth doesn’t change,” as she contrasted the

consistent statements made by the complainant to police officers, medical

professionals, and her school counselor, with the inconsistencies in Smith’s

testimony, for example whether he had seen the complainant on the night of the

assault. The prosecutor also urged the jurors, in assessing the complainant’s

credibility, to reflect on her demeanor while testifying, the physical evidence of

sexual trauma, and the detailed description she gave of her assailant which closely

matched Smith. The State did not mention Smith’s prior conviction for indecent

exposure in closing argument. Smith’s attorney also focused on the credibility of

8
the witnesses, arguing, “[s]ometimes complaining witnesses lie,” and suggesting

that the complainant could have had “consensual sex with another boy” and

“needed to pin it on somebody.”

The jury returned a guilty verdict, the trial court assessed punishment, and

Smith appealed.

Analysis

I. Admissibility of prior conviction for indecent exposure

In his first two issues, Smith contends that the trial court erred by admitting

evidence of his 1999 conviction for indecent exposure during the guilt-or-

innocence phase of trial, because doing so violated Rules of Evidence 403 and 609.

Smith argues on appeal that the probative value of his conviction for indecent

exposure does not outweigh its prejudicial effect, the conviction was too remote,

the impeachment value was minimal, and the nature of the prior conviction and its

similarity to the charged offense created a risk that the jury would consider it as

character conformity evidence. We review a trial court’s admission of extraneous

offense evidence under an abuse of discretion standard. De La Paz v. State, 279

S.W.3d 336, 343 (Tex. Crim. App. 2009). “As long as the trial court’s ruling is

within the ‘zone of reasonable disagreement,’ there is no abuse of discretion, and

the trial court’s ruling will be upheld.” Id. at 343–44 (quoting Montgomery v. State,

810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (on rehearing)).

9
 When a defendant testifies at trial, he is subject to cross examination in the

same manner as any other witness. Bowley v. State, 310 S.W.3d 431, 434 (Tex.

Crim. App. 2010). Rule 609 of the Texas Rules of Evidence provides that evidence

of a witness’s prior conviction of a felony or crime of moral turpitude shall be

admitted for purposes of impeachment if the court determines that the probative

value of admitting the conviction outweighs its prejudicial effect. TEX. R. EVID.

609(a); Morris v. State, 67 S.W.3d 257, 263 (Tex. App.—Houston [1st Dist.] 2001,

pet. ref’d). The court must balance probative value and prejudice by considering

(1) the prior conviction’s impeachment value; (2) its temporal proximity to the

crime on trial, and the defendant’s subsequent criminal history; (3) the similarity

between the prior offense and the present offense; (4) the importance of the

defendant’s testimony; and (5) the importance of the credibility issue. Theus v.

State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992); see Hernandez v. State, 976

S.W.2d 753, 755 (Tex. App.—Houston [1st Dist.]), pet. ref’d, 980 S.W.2d 652

(Tex. Crim. App. 1998).

However, when the conviction is more than 10 years old, Rule 609(b)

requires the court to conduct a different analysis. Hernandez, 976 S.W.2d at 755.

In such a situation, before a court may admit such evidence, it must determine that

“the probative value of the conviction supported by specific facts and

circumstances substantially outweighs its prejudicial effect.” TEX. R. EVID. 609(b).

10
This ten-year period is measured from the date of trial in which the prior

conviction is to be offered as evidence, rather than the date of the charged offense,

because the evidence is relevant under Rule 609, if at all, to show whether the

defendant is credible at trial. See Davis v. State, 545 S.W.2d 147, 150 (Tex. Crim.

App. 1976). Ordinarily, “[r]emote convictions are inadmissible because of a

presumption that one is capable of rehabilitation and that his character has

reformed over a period of law abiding conduct.” Morris, 67 S.W.3d at 263. But

subsequent convictions for felonies or misdemeanors involving moral turpitude can

“remove the taint of remoteness from the prior convictions” by showing a lack of

reformation. Id. (citing Hernandez, 976 S.W.2d at 755). In that situation, we

balance the probative value and prejudicial effect of the prior conviction under

Rule 609(a)’s “outweigh” standard—instead of Rule 609(b)’s “substantially

outweigh” standard—because “the ‘tacking’ of the intervening convictions renders

convictions more than 10 years old no longer remote.” Id.

Smith was convicted of the misdemeanor offense of indecent exposure in

1999. After that conviction, Smith was convicted of the felony offenses of theft

from a person in 2001, delivery of a controlled substance in 2003, theft from a

person in 2005, possession of a controlled substance in 2006, theft as a third

offense in 2008, and possession of a controlled substance in 2009. These repeated

felony convictions demonstrate Smith’s lack of reformation and remove the taint of

11
remoteness from his indecent exposure conviction. See Morris, 67 S.W.3d at 263.

Accordingly, we will apply the Rule 609(a) standard to determine if the trial court

erred in admitting evidence of this prior conviction. See id.

We begin by considering the first Theus factor: the impeachment value of

the prior conviction. See Theus, 845 S.W.2d at 880. Indecent exposure is a crime of

moral turpitude. See Tristan v. State, 393 S.W.3d 806, 812–13 (Tex. App.—

Houston [1st Dist.] 2012, no pet.) (citing Polk v. State, 865 S.W.2d 627, 630 (Tex.

App.—Fort Worth 1993, pet. ref’d)). Crimes of moral turpitude involve a “grave

infringement of the moral sentiment of the community,” Hardeman v. State, 868

S.W.2d 404, 405 (Tex. App.—Austin 1993, pet. dism’d) (quoting BLACK’S LAW

DICTIONARY 1008–09 (6th ed. 1990)), or show “a moral indifference to the opinion

of the good and respectable members of the community.” Escobedo v. State, 202

S.W.3d 844, 848 (Tex. App.—Waco 2006, pet. ref’d). “Offenses involving moral

turpitude carry a higher impeachment value.” Martin v. State, 265 S.W.3d 435, 444

(Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Theus, 845 S.W.2d at 881);

see also Moreno v. State, 22 S.W.3d 482, 488 (Tex. Crim. App. 1999). As Smith

has conceded, this factor weighs in favor of admissibility.

The second Theus factor is the temporal proximity of the crime to trial and

the defendant’s subsequent criminal history. Theus, 845 S.W.2d at 880. As we

have explained, although this prior conviction is outside the 10-year period

12
established by Rule 609, Smith’s many subsequent convictions show a lack of

reformation, weighing in favor of admission. See Rodriguez v. State, 129 S.W.3d

551, 560 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (holding that the second

Theus factor weighed in favor of admissibility of prior convictions that were more

than ten years old because defendant’s criminal history showed “a propensity for,

and a history of, running afoul of the law”).

The third Theus factor is the similarity between the prior offense and the

present offense. Theus, 845 S.W.2d at 880. Smith argues that indecent exposure

and aggravated sexual assault of a child are such similar offenses that the

admission of evidence of the indecent exposure conviction would cause the jury to

regard him as a “sexual deviant” who would be more likely to be guilty of

aggravated sexual assault of a child, and therefore this element weighs against

admissibility. In Theus, the Court held that this factor weighs against admission if

the prior conviction and the charged offense are similar because “admission for

impeachment purposes of a crime similar to the crime charged presents a situation

where the jury would convict on the perception of a past pattern of conduct, instead

of on the facts of the charged offense.” Id. at 881. In this case, however, we

disagree with Smith’s contention that indecent exposure is so similar to aggravated

sexual assault of a child as to create a risk that the jury would convict on an

improper basis.

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 Indecent exposure is a “sexual offense,” found in Chapter 21 of the Texas

Penal Code, which requires for its commission that a person expose “his anus or

any part of his genitals with intent to arouse or gratify the sexual desire of any

person, and he is reckless about whether another is present who will be offended or

alarmed by his act.” TEX. PENAL CODE ANN. § 21.08 (West 2011). Aggravated

sexual assault of a child is an “assaultive offense,” found in Chapter 22 of the

Texas Penal Code, which requires for its commission that the actor intentionally or

knowingly cause contact or penetration involving the sexual organ of the actor or

the child or both. Id. § 22.021(a)(1)(B). It also requires an aggravating element

such as causing serious bodily injury; placing the victim in fear of death, serious

bodily injury, or kidnapping of the victim or others; using or exhibiting a deadly

weapon; or that the victim is a child younger than 14 or an elderly or disabled

individual. See id. § 22.021(a)(2).

Intent to gratify a sexual desire is not an element of aggravated sexual

assault of a child; and neither contact nor penetration is an element of indecent

exposure. Compare id. § 21.08, with id. § 22.021. While identity of the person to

whom the indecent exposure is directed is not an element of that offense, see

Wallace v. State, 550 S.W.2d 89, 91 (Tex. Crim. App. 1977), the victim’s

characteristic of being a child is an essential element of the offense of aggravated

sexual assault of a child. See TEX. PENAL CODE ANN. § 22.021(a)(1)(B). In short,

14
indecent exposure is a crime of depravity, see Polk, 865 S.W.2d at 630, whereas

aggravated sexual assault of a child is a crime of violence. See Wisdom v. State,

708 S.W.2d 840, 842–43 (Tex. Crim. App. 1986). Although both crimes involve

sexual elements, they are not so similar as to weigh in favor of exclusion of the

indecent exposure conviction.

Finally, we consider the related fourth and fifth Theus factors: the

importance of the defendant’s testimony and the importance of the credibility

issue. These two factors are related because “both depend on the nature of a

defendant’s defense and the means available to him of proving that defense.”

Theus, 845 S.W.2d at 881. Here, Smith had no alibi witness, and his defensive

theories appeared to be mistaken identity and that the complainant was lying. For

example, Smith testified, “She might have been raped, but I know it wasn’t me that

raped her. She might have the wrong person.” In closing, Smith’s attorney argued,

“Sometimes complaining witnesses lie.” There were no eyewitnesses, no

surveillance videos, and no DNA test results in this case. At trial the only other

defense witness was a nephew, who testified that he did not know anything about

Smith’s whereabouts at the time the complainant was assaulted. Aside from the

nephew’s testimony, the evidence in this case consisted of Smith’s testimony and

the testimony of the State’s witnesses. Thus the importance of his testimony and

credibility were heightened. See id. “As the importance of the defendant’s

15
credibility escalates, so will the need to allow the State an opportunity to impeach

the defendant’s credibility.” Id. These elements weigh in favor of admission of the

prior conviction for indecent exposure.

Having found that the Theus factors weigh in favor of admissibility, we

conclude that the trial court reasonably could have concluded that the probabtive

value of admitting evidence that Smith was previously convicted of indecent

exposure outweighs its prejudicial effect. See TEX. R. EVID. 609(a). We therefore

hold that the trial court did not err by admitting the evidence, and we overrule

Smith’s first issue.

Smith’s second issue argues that the court abused its discretion by admitting

the very same evidence of his prior conviction for indecent exposure because doing

so violated Rule of Evidence 403, which provides that relevant evidence may be

excluded “if its probative value is substantially outweighed by the danger of unfair

prejudice . . . .” TEX. R. EVID. 403. We have already explained the probative value

of the evidence in regard to impeachment in this case, in which the evidence

consisted of only Smith’s testimony and that of the State’s witnesses. However,

under our Rule 609 analysis, we concluded that the probative value of the evidence

was greater than its prejudicial effect. Having so concluded, we cannot find that the

risk of unfair prejudice was substantially greater than the probative value. It is not.

As we have said, the probative value of the evidence is greater than the prejudicial

16
effect. We therefore overrule Smith’s second issue. Compare TEX. R. EVID. 403,

with TEX. R. EVID. 609.

II. Court costs

In his third issue, Smith argues that the evidence is insufficient to support

the assessment of court costs. The trial judge signed a judgment that assessed

$484.00 in court costs. A supplemental clerk’s record was filed in this case. It

indicated that the court held a hearing sua sponte and ordered that a judgment nunc

pro tunc be entered to increase the amount of court costs assessed. The spelling of

Smith’s first name was also changed from the incorrect spelling of “Ronnie” to the

correct spelling, “Ronie.”

Smith filed several objections to the supplemental clerk’s record. However,

having reviewed the record on appeal, we have identified an independent reason

why we must disregard the judgment nunc pro tunc entered in this case: the trial

court lacked jurisdiction to enter it at the time it purported to do so. In criminal

cases, “Once the record has been filed in the appellate court, all further

proceedings in the trial court—except as provided otherwise by law or by these

rules—will be suspended until the trial court receives the appellate-court mandate.”

TEX. R. APP. P. 25.2(g). Nunc pro tunc proceedings in criminal cases are governed

by Rule 23 of the Texas Rules of Appellate Procedure. “Unless . . . the defendant

17
has appealed, a failure to render judgment and pronounce sentence may be

corrected at any time by the court’s doing so.” TEX. R. APP. P. 23.1.

In this case, the judgment was originally rendered in open court on May 10,

2012, and a written judgment was entered on the same date. Smith also filed a

notice of appeal on May 10, 2012. The clerk’s record was filed in this court on July

9, 2012, and the reporter’s record was filed on September 8 and September 10,

2012. The purported nunc pro tunc judgment was entered in February 2013. This

was after Smith had appealed, see id., and after the record had been filed in the

appellate court. See TEX. R. APP. P. 25.2(g). Accordingly, we hold that the trial

court had no jurisdiction to enter a nunc pro tunc judgment in February 2013. See

TEX. R. APP. P. 23.1, 25.2(g); see Green v. State, 906 S.W.2d 937, 939 (Tex. Crim.

App. 1995) (“[O]nce the trial record has been filed with the Court of Appeals or

this Court, the trial court no longer has jurisdiction to adjudicate the case.”); State

v. Gutierrez, 143 S.W.3d 829, 831 (Tex. App.—Corpus Christi 2004, no pet.)

(“The filing of the appellate record . . . severs the trial court’s jurisdiction to

adjudicate the case.”); cf. Meineke v. State, 171 S.W.3d 551, 558 (Tex. App.—

Houston [14th Dist.] 2005, pet. ref’d) (holding that filing of notice of appeal did

not deprive trial court of jurisdiction when appellate record had not yet been filed);

Ware v. State, 62 S.W.3d 344, 353–54 (Tex. App.—Fort Worth 2001, pet. ref’d)

18
(holding that entry of nunc pro tunc judgment was not untimely when entered after

filing of notice of appeal and before filing of appellate record in court of appeals).

Having determined that the purported nunc pro tunc judgment was entered

without jurisdiction to do so, we will not rely upon that document or any other part

of the supplemental record to decide this appeal. Moreover, we note that Smith

appealed only from the May 2012 judgment, which we now consider.

Smith argues that the evidence is insufficient to support the judgment against

him assessing court costs in the amount of $484.00. He first argues that the record

is silent as to the amount of costs owed because there is no certified bill of costs in

the record and that assessment of court costs in the absence of a bill of costs

violates his right to due process. The Court of Criminal Appeals has rejected these

arguments. See Johnson v. State, 423 S.W.3d 385, 392–96 (Tex. Crim. App. 2014).

In addition, he argues that there is no way to determine whether any attorney fees

were included in the assessment of costs. We disagree with this proposition

because the amount of costs is governed by statute, as to which the defendant is

charged with constructive notice. See id. at 389.

The State, for its part, argues that the assessment of $484.00 is supported by

the record and by law and, indeed, under mandatory court-cost statutes and the

facts of this case, the trial court should have assessed costs in the amount of

$574.00. The State also argues that the court costs are not ripe for review before an

19
attempt is made to collect them; that argument has also been rejected by the Court

of Criminal Appeals. See id. at 391.

“[W]e review the assessment of court costs on appeal to determine if there is

a basis for the cost, not to determine if there was sufficient evidence offered at trial

to prove each cost.” Id. at 390. A defendant convicted of a felony offense must pay

certain statutorily mandated costs and fees. See id. at 394. These fees vary

depending on the type of offense and procedural history of the case. See Owen v.

State, 352 S.W.3d 542, 546 n.5 (Tex. App.—Amarillo 2011, no pet.) (providing an

extensive list of Texas statutes requiring convicted persons to pay costs and fees).

The record demonstrates that Smith was convicted of a felony in district court,

supporting each of the following costs:

(1) $250 DNA record fee that is mandated for someone convicted
of aggravated sexual assault; 2

(2) $133 consolidated court cost for conviction of a felony; 3

(3) $5.00 for summoning a witness, incurred 11 times for a cost of
$55.00; 4

2
TEX. CODE CRIM. PROC. ANN. art. 102.020(a)(1) (West Supp. 2013) (“$250
on conviction of an offense listed in Section 411.1471(a)(1), Government
Code,” including aggravated sexual assault).
3
TEX. LOC. GOV’T CODE ANN. § 133.102(a)(1) (West Supp. 2013) (“A person
convicted of an offense shall pay as a court cost, in addition to all other
costs . . . $133 on conviction of a felony.”).

20
 (4) $40.00 to the clerk’s office; 5

(5) $25.00 district court records preservation fee; 6

(6) $20.00 additional jury fee; 7

(7) $6.00 for support for the judiciary; 8

(8) $5.00 for making an arrest without a warrant;9

(9) $5.00 as a commitment fee;10

4
TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(3) (West Supp. 2013) (“A
defendant convicted of a felony or a misdemeanor shall pay the following
fees for services performed in the case by a peace officer . . . $5 for
summoning a witness.”).
5
Id. art. 102.005(a) (West 2006) (“A defendant convicted of an offense in a
county court, a county court at law, or a district court shall pay for the
services of the clerk of the court a fee of $40.”).
6
Id. art. 102.005(f) (“A defendant convicted of an offense in a . . . district
court shall pay a fee of $25 for records management and preservation
services performed by the county as required by Chapter 203, Local
Government Code.”).
7
Id. art. 102.004(a) (“A defendant convicted by a jury in a . . . district court
shall pay a jury fee of $20.”).
8
TEX. LOC. GOV’T CODE ANN. § 133.105(a) (West 2008) (“A person
convicted of any offense, other than an offense relating to a pedestrian or the
parking of a motor vehicle, shall pay as a court cost, in addition to all other
costs, a fee of $6 to be used for court-related purposes for the support of the
judiciary.”).
9
TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(1) (“$5 for . . . making an
arrest without a warrant”).

21
 (10) $5.00 as a release fee on each case including release to the
Texas Department of Criminal Justice; 11

(11) $5.00 security fee; 12

(12) $5.00 jury summons fee; 13

(13) $4.00 jury reimbursement fee; 14

(14) $4.00 for the court technology fund; 15

(15) $2.00 for support of indigent defense. 16

10
Id. art. 102.011(a)(6) (“A defendant convicted of a felony or a misdemeanor
shall pay the following fees for services performed in the case by a peace
officer . . . $5 for commitment or release”).
11
Id.
12
Id. art. 102.017(a) (West Supp. 2013) (“A defendant convicted of a felony
offense in a district court shall pay a $5 security fee as a cost of court.”).
13
Id. art. 102.011(a)(7) (“$5 for summoning a jury, if a jury is summoned”).
14
Id. art. 102.0045(a) (“A person convicted of any offense, other than an
offense relating to a pedestrian or the parking of a motor vehicle, shall pay
as a court cost, in addition to all other costs, a fee of $4 to be used to
reimburse counties for the cost of juror services as provided by Section
61.0015, Government Code.”).
15
Id. art. 102.0169(a) (“A defendant convicted of a criminal offense in a . . .
district court shall pay a $4 county and district court technology fee as a cost
of court.”).
16
TEX. LOC. GOV’T. CODE ANN. § 133.107(a) (West Supp. 2013) (“A person
convicted of any offense, other than an offense relating to a pedestrian or the
parking of a motor vehicle, shall pay as a court cost, in addition to other
costs, a fee of $2 to be used to fund indigent defense representation through

22
These fees total $564.00:

$250.00 (DNA record fee)
$133.00 (consolidated court cost for conviction of a felony)
$55.00 (summoning witnesses fee)
$40.00 (clerk’s office fee)
$25.00 (district court records preservation fee)
$20.00 (additional jury fee)
$6.00 (support for the judiciary fee)
$5.00 (commitment fee)
$5.00 (making arrest without a warrant)
$5.00 (release fee)
$5.00 (security fee)
$5.00 (jury summons fee)
$4.00 (jury reimbursement fee)
$4.00 (court technology fund)
$2.00 (support of indigent defense fee)
$ 564.00

The trial court assessed costs in the amount of $484.00. The record shows a

basis for assessing costs in at least that amount, not including any assessment for

attorney’s fees. We overrule Smith’s third issue. See Johnson, 423 S.W.3d at 389,

396.

III. Reformation of the judgment

“[A]n appellate court has authority to reform a judgment to include an

affirmative finding to make the record speak the truth when the matter has been

called to its attention by any source.” French v. State, 830 S.W.2d 607, 609 (Tex.

the fair defense account established under Section 79.031, Government
Code.”).

23
Crim. App. 1992) (citing Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.—

Dallas 1991, pet. ref’d)); accord Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—

Houston [1st Dist.] 2001, no pet.) (holding that an appellate court has the power to

correct and reform a trial judgment to make the record speak the truth when it has

the necessary data and information to do so); see also TEX. R. APP. P. 43.2(b).

We note that the trial court’s May 2012 judgment does not accurately

comport with the record in that it misspells Smith’s first name as “Ronnie” not

“Ronie.” The record on appeal demonstrates that Smith’s first name is spelled with

only one “n.” The record supports modification of the judgment with regard to the

spelling of Smith’s first name, and accordingly, the trial court’s judgment is

modified to reflect that Smith’s first name is “Ronie” not “Ronnie.”

Finally, the State in its brief has requested that we reform the judgment to

assess the full measure of mandatory costs applicable upon conviction. Just as an

appellant in a criminal case has a statutory remedy to correct erroneous or

unsupportable costs, separate and apart from directly appealing the judgment of

conviction,17 the Code of Criminal Procedure also contemplates that the State may

17
See TEX. CODE CRIM. PROC. ANN. art. 103.008; Johnson v. State, 423
S.W.3d 385, 392 (Tex. Crim. App. 2014).

24
revisit the amount of costs due by filing an appropriate motion in the trial court.18

Thus, to the extent the State seeks to collect court costs in excess of those already

assessed in the judgment, filing a motion in the trial court ordinarily would be

preferable to presenting such a request to the appellate court on direct appeal.

However, in light of the fact that we have already reviewed the record concerning

court costs in conjunction with our resolution of Smith’s challenge to those costs in

this appeal, it would not serve judicial efficiency to require the State to relitigate

that issue in a separate proceeding. As detailed above, we have determined that the

applicable mandatory statutory costs identified by the State amount to be $564.00,

and we will modify the judgment in this case to so reflect.

18
See TEX. CODE CRIM. PROC. ANN. art. 103.007 (“After a defendant has paid
costs, no more costs may be charged against the defendant unless the court
rules on a motion presented to the court that additional costs are due.”
(emphasis supplied)).

25
 Conclusion

We modify the original judgment dated May 10, 2012 to reflect the correct

spelling of Smith’s first name and mandatory statutory costs of court in the amount

of $564.00, and as modified, we affirm.

Michael Massengale
Justice

Panel consists of Chief Justice Radack and Justices Massengale and Huddle.

Publish. TEX. R. APP. P. 47.2(b).

26