Opinion issued April 3, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00927-CR
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OSCAR MONTANO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Case No. 1330964
OPINION
Without a sentencing recommendation from the State, appellant Oscar
Montano pleaded guilty to the felony offense of burglary of a habitation with intent
to commit theft. See TEX. PENAL CODE ANN. § 30.02 (West 2011). The trial court
sentenced the appellant to 18 years in prison and imposed court costs. Presenting
one issue on appeal, Montano contends that there is insufficient evidence to
support the award of court costs ordered by the trial court. We modify the
judgment of the trial court to reflect those costs supported by the record, and as so
modified, we affirm.
Background
Montano was indicted for burglary of a habitation with the intent to commit
theft. Without a recommendation as to punishment, he pleaded guilty to the
charged offense and pleaded true to the enhancement allegation that he had
previously been convicted of the felony offense of burglary of a habitation. The
trial court sentenced him to confinement for 18 years. Furthermore, Montano was
ordered to pay $244 in court costs as part of the judgment.
Montano appealed, and he requested that the clerk’s record on appeal
include, among other things, a “bill of costs reflecting all fees and costs assigned to
[him] post-conviction.” A bill of costs was subsequently prepared by the clerk and
included in the record. The total reflected in the bill of costs was $234.
Analysis
Montano challenges the sufficiency of the evidence to support the award of
costs. In the trial court, he did not object to the amount of costs, but he did not need
to do so to preserve his right to challenge them on appeal. See Johnson v. State,
2
No. PD-0193-13, 2014 WL 714736, at *2–3 (Tex. Crim. App. Feb. 26, 2014).
Montano does argue that the postjudgment preparation of a bill of costs violated
his due process rights, and that the document therefore should not be considered.
He thus contends that he should not have to pay any court costs, because there
would be insufficient evidence to support the assessment without this bill.
However, we review the sufficiency of the evidence to support the award of costs
to determine if there was a basis for the costs, not to determine if there was
sufficient evidence offered at trial to prove each cost. See id. at *2.
I. Due process
Montano asserts the production of a bill of costs after the entry of judgment
violates his due process rights and should not be considered by this court.
Furthermore, Montano claims he received no notice and did not have an
opportunity to be heard regarding the amount of court costs, because he did not
receive a bill of costs before the judgment of the case. These arguments were
recently considered and rejected by the Court of Criminal Appeals. “Convicted
defendants have constructive notice of mandatory court costs set by statute and the
opportunity to object to the assessment of court costs against them for the first time
on appeal or in a proceeding under Article 103.008 of the Texas Code of Criminal
Procedure.” Cardenas v. State, No. PD-0733-13, 2014 WL 714734, at *2 (Tex.
Crim. App. Feb. 26, 2014); see also Johnson, 2014 WL 714736, at *7 (holding that
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a bill of costs is not required to support any particular amount of court costs).
Montano’s right to due process of law therefore has been satisfied with respect to
notice and an opportunity to be heard regarding the imposition of court costs.
Cardenas, 2014 WL 714734, at *2.
II. Constitutional objections to specific costs
Montano also argues that the postjudgment supplementation of the record
with a bill of costs wrongfully precluded him from making constitutional
objections to the “consolidated court costs” on appeal. See Karenev v. State, 281
S.W.3d 428, 434 (Tex. Crim. App. 2009) (“a defendant may not raise for the first
time on appeal a facial challenge to the constitutionality of a statute”). He claims
this was a separate violation of due process, but this argument was also rejected by
the Court of Criminal Appeals in Johnson: “an appellant is not prejudiced by the
supplementation of the record under these circumstances because he or she need
not object at trial to contest the imposition of court costs on direct appeal, and an
appellant has a separate statutory remedy to correct erroneous or unsupportable
costs.” Johnson, 2014 WL 714736, at *4 (citing TEX. CODE CRIM. PROC. ANN. art.
103.008(a)). Accordingly we overrule this issue.
III. Sufficiency of evidence to support costs
Finally we review the award of costs by reviewing the facts in the record to
determine whether they provide a basis for the assessed court costs. See id. at *2.
4
In response to Montano’s request, the district clerk filed a document that was
generated by the Harris County Clerk’s Justice Information Management System.
This document was printed out and certified by the district clerk of Harris County.
The document, entitled “Cost Bill,” itemized the various costs of Montano’s case.
The costs are listed on two pages. The first page lists costs and a subtotal of
$60 of costs, including:
$40 “clerks fee” 1
$15 “sheriffs fee” 2
+ $5 “security fee” 3
$60 “subtotal”
The first page also lists the following costs which are component parts of the $15
“sheriffs fee”:
$5 “commitment” 4
$5 “release” 5
1
See TEX. CODE CRIM. PROC. ANN. art. 102.005(a) (West 2007) (“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.”). The
record reflects that a conviction issued in the case on September 25, 2011.
2
See generally id. art. 102.011 (West Supp. 2013) (fees for services of peace
officers).
3
See id. art. 102.017(a) (“A defendant convicted of a felony offense in a
district court shall pay a $5 security fee as a cost of court.”). The record
reflects that a conviction issued in the case on September 25, 2011.
4
See id. art. 102.011(a)(6) (“A defendant convicted of a felony or a
misdemeanor shall pay the following fees for service performed in the case
by a peace officer . . . $5 for commitment or release . . . .”). The record
reflects that a felony commitment was issued on September 25, 2012.
5
+ $5 “arrest w/o
warrant/capias” 6
$15 “sheriffs fee”
The second page carries forward the $60 subtotal from the first page and
lists the following additional costs, culminating in $234 as the “total amount
owed”:
$60 “page 1 subtotal”
$4 “court technology fund” 7
$4 “jury reimbursement fee”8
$ 25 “DC record preservation” 9
5
See id. art. 102.011(a)(6) (“A defendant convicted of a felony or a
misdemeanor shall pay the following fees for service performed in the case
by a peace officer . . . $5 for commitment or release . . . .”). The record
reflects that a conviction was issued in the case on September 25, 2011.
6
See id. art. 102.011(a)(1) (“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 making an arrest without a warrant . . . .”).
The record reflects that an arrest was made on December 12, 2011, and there
is no record of a warrant being issued.
7
See 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.”). The record reflects that a conviction was issued in the case
on September 25, 2011.
8
See id. art. 102.0045(a) (“A person convicted of any offense, other than an
offense relating to a pedestrian or 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.”). The record reflects that a conviction was issued in the
case on September 25, 2011.
6
$2 “support of indg defense” 10
$ 133 “consolidated court costs” 11
+ $6 “support judiciary fees” 12
$ 234 “total amount owed”
This bill of costs demonstrates the basis for an award of fees and costs totaling
$234. An additional sum of $10 was incorporated into the judgment for a reason
unexplained in the bill of costs or the state’s appellate brief.
9
See 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.”). The record reflects that a conviction was issued in the
case on September 25, 2011.
10
See 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
the fair defense account established under Section 79.031, Government
Code.”). The record reflects that a conviction was issued in the case on
September 25, 2011.
11
See id. § 133.102(a)(1) (entitled “Consolidation Fees on Conviction,” and
providing: “A person convicted of an offense shall pay as a court cost, in
addition to all other costs . . . $133 on conviction of a felony . . .”); see also
TEX. GOV’T CODE ANN. § 102.021(1) (West Supp. 2013). The record reflects
that a conviction was issued in the case on September 25, 2011.
12
See 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.”). The record reflects that a conviction was issued in the case on
September 25, 2011.
7
Without any further guidance as to what authority may have justified the
remaining $10 in assessed costs, we conclude that the trial court’s award of court
costs does not accurately comport with the record in that it does not reflect the total
from the “cost bill.” “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.” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston
[1st Dist.] 2001, no pet.); see also TEX. R. APP. P. 43.2(b). The record supports
modification of the judgment because the record supports court fees totaling to
$234, and the State has suggested no basis upon which any greater amount would
be justified. Accordingly, the trial court’s judgment is modified to reflect that the
court fees to be awarded match the “cost bill” in the record of $234.
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Conclusion
We modify the trial court’s award of costs to $234 to reflect the
supplemented record. As so modified, the judgment of the trial court is affirmed.
See TEX. R. APP. P. 43.2(b).
Michael Massengale
Justice
Panel consists of Chief Justice Radack and Justices Sharp and Massengale.
Publish. TEX. R. APP. P. 47.2(b).
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