Joyce McMillin Sturdivant v. State

Opinion issued March 27, 2014

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-12-00089-CR
NO. 01-12-00184-CR
———————————
JOYCE MCMILLIN STURDIVANT, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 54th District Court
McLennan County, Texas
Trial Court Case No. 2011-564-C2

OPINION

A jury convicted appellant, Joyce McMillin Sturdivant, of the first-degree

felony offenses of murder and attempted capital murder and assessed punishment
at thirty years’ and fifteen years’ confinement, respectively, to run concurrently. 1

We affirmed appellant’s conviction on original submission. Appellant

subsequently filed a petition for discretionary review, challenging our

determination that she failed to preserve for appellate review her complaint that the

trial court erroneously taxed fees for the attorneys pro tem, the State’s expert

witnesses, and the State’s investigator (collectively, “attorney pro tem fees”) as

court costs. After we issued our opinion, the Court of Criminal Appeals issued an

opinion addressing this question in Landers v. State, 402 S.W.3d 252 (Tex. Crim.

App. 2013). The Court of Criminal Appeals then granted appellant’s petition for

discretionary review, vacated our May 14, 2013 judgment, and remanded the case

to this Court to determine what effect, if any, Landers has on our reasoning and

analysis. See Sturdivant v. State, 411 S.W.3d 487 (Tex. Crim. App. 2013) (per

curiam).

We modify the judgment of the trial court and affirm as modified.

1
See TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2011) (providing that person
commits offense of murder if she intentionally or knowingly causes death of
individual); id. § 19.03(a)(3) (Vernon Supp. 2013) (providing that person commits
offense of capital murder if she employs another to commit murder for
remuneration or promise of remuneration); id. § 15.01(a) (Vernon 2011)
(providing that person commits offense of criminal attempt if, with specific intent
to commit underlying offense, she “does an act amounting to more than mere
preparation that tends but fails to effect the commission of the offense intended”).
2
 Background

The State originally indicted appellant for the offenses of capital murder and

attempted capital murder of her husband, Joe Sturdivant. The elected district

attorney of McLennan County recused himself and his office because he had

previously represented an individual connected to the case. 2 The trial court

appointed an attorney pro tem to conduct appellant’s prosecution.

The jury convicted appellant of the lesser-included offense of murder and

attempted capital murder, and the trial court sentenced appellant in open court to

thirty years’ and fifteen years’ confinement, respectively, to run concurrently. At

the time the trial court orally pronounced appellant’s sentence, the court did not

mention court costs, nor did it mention that it found that appellant’s financial

resources had materially changed such that she was no longer indigent.

On December 9, 2011, four days after the trial court orally pronounced

appellant’s sentence, the trial court signed a written judgment. The judgment,

which was entirely computer-generated, included $64,538.22 in court costs. The

judgment included the following special finding:

The Court finds that the defendant has financial resources that enable
her to pay in whole the assessed costs. The Court assesses all court

2
The Texas Supreme Court transferred this appeal from the Court of Appeals for
the Tenth District of Texas to this Court pursuant to its docket equalization
powers. See TEX. GOV’T CODE ANN. § 73.001 (Vernon 2013) (“The supreme
court may order cases transferred from one court of appeals to another at any time
that, in the opinion of the supreme court, there is good cause for the transfer.”).
3
 appointed attorney’s fees, attorney pro tem fees, expert witness fees,
and investigator’s fees as costs in this cause and Orders the defendant
to pay the same.

The trial court attached, and incorporated into the judgment, an order to withdraw

funds from appellant’s inmate trust account to satisfy the court costs order. The

judgment did not include an itemization of the court costs.

Appellant signed the judgment and affixed her fingerprint on December 21,

2011, twelve days after the trial court signed the judgment. The clerk’s record

includes a “Bill of Cost,” dated December 22, 2011, that itemized the court costs

and included a total of $35,099.69 in fees for the attorneys pro tem, the State’s

expert witnesses, and the State’s investigator. 3 The record does not indicate when

this document was presented to appellant or her counsel, if at all.

Appellant did not move for a new trial or otherwise complain to the trial

court that it had improperly included the attorney pro tem fees as court costs. We

held, on original submission, that because appellant did not bring her complaint to

the attention of the trial court, she failed to preserve the complaint for appellate

review. See Sturdivant v. State, No. 01-12-00089-CR, 2013 WL 1972179, at *19

3
In addition to $27,009.69 in fees specifically labeled “special prosecutor” on the
costs bill, the bill also includes $8,090.00 for attorney E. Alan Bennett, whom the
costs bill mistakenly identifies as an attorney appointed for appellant. Bennett
served as an attorney pro tem during the trial, and we therefore include the fees for
his services with the fees assessed for the other attorney pro tem. The trial court
therefore included as court costs a total of $35,099.69 in attorney pro tem, State’s
expert witnesses, and State’s investigator fees.
4
(Tex. App.—Houston [1st Dist.] May 14, 2013), vacated, 411 S.W.3d 487 (Tex.

Crim. App. 2013). We resolved all of appellant’s six issues against her and

affirmed her conviction. See id. at *22.

Appellant subsequently filed a petition for discretionary review challenging

only our determination that she failed to preserve her complaint about the attorney

pro tem fees for appellate review. While her petition for discretionary review was

pending before the Court of Criminal Appeals, that court issued its opinion in

Landers v. State. See 402 S.W.3d 252 (Tex. Crim. App. 2013). In that case, the

Court of Criminal Appeals held that because Landers was not given the

opportunity to object in open court to the imposition of attorney pro tem fees as

court costs and was not required to file a motion for new trial to complain of that

action, she did not forfeit her complaint by raising it for the first time on appeal.

See id. at 255.

On October 9, 2013, the Court of Criminal Appeals granted appellant’s

petition for discretionary review and, in a per curiam opinion, noted that we did not

have the benefit of its Landers opinion when we issued our opinion in this case.

Sturdivant v. State, 411 S.W.3d 487, 488 (Tex. Crim. App. 2013) (per curiam).

The court therefore stated, “[W]e vacate the judgment of the Court of Appeals and

remand for that court to consider the effect of Landers, if any, on its reasoning and

analysis in this case.” Id.

5
 Taxing of Attorney Pro Tem Fees as Court Costs

In the sole issue on remand, appellant contends that the trial court erred in

taxing as court costs the attorney pro tem fees.

A. Preservation of Error

The Court of Criminal Appeals discussed preservation of a complaint that

the trial court improperly taxed attorney pro tem fees as court costs in Landers. At

the time the trial court orally pronounced Landers’ sentence, the court did not

mention the imposition of court costs. 402 S.w.3d at 253. The typed, written

judgment included a handwritten statement that Landers owed $4,562.50 in costs,

and the record did not indicate whether this notation was added before or after

Landers signed the judgment and added her fingerprint. Id. Six days after the trial

court signed the judgment, the clerk issued an itemized bill of costs which listed

$3,718.50 in attorney’s fees for the attorney pro tem. Id. at 253–54. Neither

appellant nor her counsel received a copy of the bill of costs. Id. at 254. Appellant

complained about the imposition of these fees as court costs for the first time on

appeal. Id.

In holding that Landers did not forfeit her complaint, the Court of Criminal

Appeals first noted the general rule that, to preserve error for appellate review, the

party must complain to the trial court. Id. It then noted, however, that the

operation of that rule “may depend on the party’s having an opportunity to comply

6
with the rule.” Id. The court observed that while an appellant fails to preserve

error by failing to object when he had the opportunity to do so, an appellant does

not forfeit error if he never had the opportunity to object. Id. (quoting Burt v.

State, 396 S.W.3d 574, 577–78 (Tex. Crim. App. 2013)). With regard to Landers’

case, the court noted that the judgment did not itemize the court costs, that the

itemized bill of costs created by the clerk’s office was not provided to appellant or

her attorney, and that the trial court held no further proceedings. Id. at 255.

Accordingly, the Court of Criminal Appeals held that because Landers did not

have the opportunity to object to imposition of attorney pro tem fees as court costs,

her failure to object was not fatal to her appeal. Id.

The Court of Criminal Appeals also held that, even if Landers could have

raised this issue in a motion for new trial (a question the court expressly declined

to answer), she was not required to do so. Id. The court reasoned that a party is

required to file a motion for new trial to preserve error only when it is necessary to

adduce facts not in the record, and Landers’ complaint involved a legal question,

not a factual one. Id. The court also declined to create such a requirement

because, in that case, the clerk filed the bill of costs six days after the trial court

signed the written judgment, thus leaving twenty-four days for Landers to obtain

the bill and file a motion for new trial raising her complaint. Id. The court

“decline[d] to adopt a rule that would allow a judge to de facto alter the statutory

7
time frame for motions for new trial.” Id. The court ultimately held that Landers

“may not be faulted for failing to object when she was not given the opportunity.”

Id. Because the trial court did not impose the fees in open court and Landers was

not required to file a motion for new trial, she did not forfeit her complaint about

taxing the attorney pro tem fees as court costs. Id.; see also Johnson v. State, No.

PD-0193-13, 2014 WL 714736, at *3 (Tex. Crim. App. Feb. 26, 2014) (“[A]

criminal defendant need not preserve an objection in the trial court to raise a claim

challenging the bases for the imposition of court costs for the first time on

appeal.”).

Here, the trial court made no mention of court costs when it orally

pronounced appellant’s sentence. Four days later, the trial court signed the written

judgment, which contained a special finding that appellant had the financial

resources to pay the assessed costs, and the court specifically assessed as costs “all

court appointed attorney’s fees, attorney pro tem fees, expert witness fees, and

investigator’s fees.”4 The judgment assessed $64,538.22 in court costs, but these

costs were not itemized in the judgment or in the attached order to withdraw funds

from appellant’s inmate trust account. The clerk’s record includes an itemized bill

4
Appellant complained about the taxing of the court-appointed defense attorney,
court-appointed defense expert witnesses, and court-appointed defense
investigator’s fees on original submission, and we resolved that issue against her.
She did not seek further review of that issue before the Court of Criminal Appeals
and, therefore, we do not address it now.
8
of costs dated December 22, 2011, thirteen days after the trial court signed the

written judgment and one day after appellant signed the judgment and affixed her

fingerprint, which specified that $35,099.69 of the assessed costs related to the

attorney pro tem fees. The record does not indicate when appellant or her counsel

received notice of this document, and no further proceedings were held in the trial

court.

We hold that, as in Landers, appellant was not given the opportunity to

object to the imposition as court costs of attorney pro tem fees that were not

itemized in a bill of costs until thirteen days after the trial court signed the

judgment. See 402 S.W.3d at 255. Because appellant did not have the opportunity

to object and she was not required to file a motion for new trial to raise this

complaint, we hold that she has not forfeited her complaint on appeal. See id.

In its supplemental brief on remand, the State argues that two alternate ways

exist in which appellant could have raised her complaint before the trial court, and

because she did not avail herself of either of these mechanisms she did not

preserve her complaint for appellate review.

The State first argues that appellant could have raised the issue in a formal

bill of exception pursuant to Texas Rule of Appellate Procedure 33.2. A formal

bill of exception allows the party to “complain on appeal about a matter that would

otherwise not appear in the record.” TEX. R. APP. P. 33.2. This method of error

9
preservation is primarily used when the appellant complains on appeal about the

trial court’s erroneous exclusion of evidence, evidence that, because it was not

admitted, would not otherwise be part of the appellate record. See, e.g., Zuniga v.

State, 393 S.W.3d 404, 417 (Tex. App.—San Antonio 2012, pet. ref’d); Moore v.

State, 275 S.W.3d 633, 635 (Tex. App.—Beaumont 2009, no pet.). Appellant’s

complaint, in contrast, does not involve any evidence or facts that are not otherwise

a part of the appellate record. The basis of appellant’s complaint concerning the

inclusion of attorney pro tem fees as court costs is apparent from the trial court’s

written judgment and the itemized bill of costs, two documents that are already a

part of the appellate record. Although this error may not have been discovered

until after trial, it is not the type of error that requires the complaining party to

affirmatively put additional evidence into the record for the complaint to be

cognizable on appeal. We therefore conclude that appellant was not required to

file a formal bill of exception to preserve her complaint concerning the attorney

pro tem fees. Cf. Landers, 402 S.W.3d at 254 (holding that appellant’s complaint

about assessment of attorney pro tem fees involved legal rather than factual

question).

The State also argues that appellant could have brought her complaint to the

attention of the trial court by filing a motion to correct costs pursuant to Code of

Criminal Procedure article 103.008. Article 103.008(a) provides, “On the filing of

10
a motion by a defendant not later than one year after the date of the final

disposition of a case in which costs were imposed, the court in which the case is

pending or was last pending shall correct any error in the costs.” TEX. CODE CRIM.

PROC. ANN. art. 103.008(a) (Vernon 2006). It is undisputed that appellant never

filed a motion in the trial court pursuant to article 103.008. The State contends that

because appellant had the opportunity to avail herself of this procedural

mechanism but failed to do so, she forfeited her complaint for appellate review.

We disagree.

Article 103.008 allows a defendant up to one year after the final disposition

of her case to file a motion to correct costs. See id. The Legislature provided a

statutory mechanism to seek correction, but it did not intend to foreclose a

defendant from seeking correction of costs by other means, such as a direct appeal.

See Thomas v. State, No. 01-12-00487-CR, 2013 WL 1163980, at *2 (Tex. App.—

Houston [1st Dist.] Mar. 21, 2013, no pet.) (“Despite the lack of a written bill of

costs, completely apart from the availability of direct appeal, Thomas could also

seek correction of an error in costs by moving to correct costs in the trial court.”)

(emphasis added); see also Johnson v. State, 389 S.W.3d 513, 517 (Tex. App.—

Houston [14th Dist.] 2012) (“While [article 103.008] provides a procedure for

correcting errors in costs, it does not explicitly or implicitly limit an appellant’s

ability to challenge the sufficiency of the evidence to support a part of the court’s

11
judgment.”), modified, 2014 WL 714736. Courts, including this Court, have held

that article 103.008 is an alternate means of raising errors in court costs. See also

Johnson, 2014 WL 714736, at *7 (“Article 103.008 provides another route through

which a defendant can challenge the assessment of court costs after final

disposition of his or her case.”) (emphasis added). The State has cited no

authority, and we have found none, holding that an appellant seeking to challenge

the imposition of court costs on appeal must first file an article 103.008 motion

before she may present her complaint to the appellate court. See Cates v. State,

402 S.W.3d 250, 252 (Tex. Crim. App. 2013) (holding that proper remedy when

trial court erroneously included amounts as court costs in written judgment is to

modify judgment to delete erroneously included amounts); see also TEX. R. APP. P.

43.2(b) (providing that appellate court may modify judgment of trial court and

affirm as modified); Johnson, 2014 WL 714736, at *6 (stating that “matters

pertaining to the imposition of court costs need not be brought to the attention of

the trial court”).

We therefore hold that, under the factual circumstances presented here,

appellant was not given an opportunity to object to the inclusion of attorney pro

tem fees as court costs. Because she was not given this opportunity and she was

not required to raise this complaint in either a motion for new trial or an article

103.008 motion prior to appeal, she has not forfeited this complaint on appeal. See

12
Landers, 402 S.W.3d at 255; see also Johnson, 2014 WL 714736, at *3 (holding

that defendant may challenge basis for imposition of court costs for first time on

appeal). We therefore consider the merits of appellant’s complaint.

B. Propriety of Assessing Attorney Pro Tem Fees as Court Costs

Code of Criminal Procedure article 2.07(a) provides that whenever an

attorney for the State is disqualified to act in a proceeding, the trial court may

appoint “any competent attorney to perform the duties of the office during

the . . . disqualification of the attorney for the state.” TEX. CODE CRIM. PROC. ANN.

art. 2.07(a) (Vernon 2005); see also id. art. 2.07(b-1) (“An attorney for the state

who is not disqualified to act may request the court to permit him to recuse himself

in a case for good cause and upon approval by the court is disqualified.”); Coleman

v. State, 246 S.W.3d 76, 82 (Tex. Crim. App. 2008) (“The appointed attorney is

called an attorney pro tem.”). The attorney pro tem “shall receive compensation in

the same amount and manner as an attorney appointed to represent an indigent

person.” TEX. CODE CRIM. PROC. ANN. art. 2.07(c); see also id. art. 26.05(a)–(c)

(Vernon Supp. 2013) (providing services for which court-appointed defense

counsel may be compensated and obligating county courts to adopt fee schedule

for court-appointed attorneys); id. art. 26.05(h) (“Reimbursement of expenses

incurred for purposes of investigation or expert testimony may be paid directly to a

private investigator . . . or to an expert witness in the manner designated by

13
appointed counsel and approved by the court.”). Generally, unless the court finds

that the defendant has the financial resources to pay for her court-appointed

counsel, all payments made pursuant to article 26.05 “shall be paid from the

general fund of the county in which the prosecution was instituted . . . and may be

included as costs of court.” Id. art. 26.05(f).

In Busby v. State, the Court of Criminal Appeals addressed whether the trial

court could require the defendant, as a condition of community supervision, to

reimburse the county for the attorney pro tem fees. 984 S.W.2d 627 (Tex. Crim.

App. 1998). The Court of Criminal Appeals rejected the State’s argument that

attorney pro tem fees, like fees paid to court-appointed counsel, could be included

as “costs of court.” Id. at 630. The court noted that, on its face, article 2.07(c)

“does not authorize inclusion of such payments in the costs of court.” Id. Instead,

that provision merely states that an attorney pro tem “‘shall receive compensation

in the same amount and manner’ as an appointed defense attorney.” Id. (quoting

TEX. CODE CRIM. PROC. ANN. art. 2.07(c)). The court construed article 2.07(c) as

“incorporating the provisions of article 26.05 that govern the amount and manner

of compensation,” such as the provisions referring to the kinds of expenses and

services for which an appointed attorney can receive compensation, the method of

calculating the appointed attorney’s fee, the form of schedules and reporting, the

method of approval of the fee, and the funding source. Id. (citing TEX. CODE CRIM.

14
PROC. ANN. art. 26.05(a)–(d)). The court also noted that article 26.05 “contains

provisions for a county to recover payments from a defendant,” but reasoned that

those provisions, “which govern costs of court and offset by the defendant, cannot

be called amount and manner in which the attorney receives compensation.” Id. at

630–31.

Further, the Court of Criminal Appeals observed that article 26.05

specifically allows that, in certain situations, fees for court-appointed defense

counsel may be taxed as court costs. Id. at 631; see also TEX. CODE CRIM. PROC.

ANN. 26.05(g) (providing that if court determines that defendant has financial

resources enabling him to offset, in whole or in part, costs of legal services

provided, court shall order defendant to pay for such services as court costs). The

Legislature did not, however, include in the Code of Criminal Procedure a

comparable provision allowing the county to recover from the defendant

compensation paid to an attorney pro tem. Busby, 984 S.W.2d at 631; see also

Johnson, 2014 WL 714736, at *2 (“Only statutorily authorized court costs may be

assessed against a criminal defendant . . . .”). The court finally stated:

There is another reason why we think the statutes would be more
specific if reimbursement for attorneys pro tem were authorized. The
public policy of having the defendant bear the cost of the defense
attorney is a familiar part of our legal system. A public policy of
having defendants reimburse the state for the costs of the prosecuting
attorney would be a novelty, one which we will not impute to the
legislature on such tenuous statutory language as that which the State
has presented.
15
Id. The Court of Criminal Appeals therefore held that the Legislature had not

authorized the taxing of attorney pro tem fees as court costs and thus trial courts

lacked the authority to require defendants to reimburse the county for attorney pro

tem fees. See id.

Here, the trial court made a special finding in its written judgment

“assess[ing] all . . . attorney pro tem fees, expert witness fees, and investigator’s

fees as costs in this cause and Order[ing] the defendant to pay the same.” The

judgment provided that appellant owed $64,538.22 in total court costs. The district

clerk then issued a bill of cost which listed a total of $35,099.69 in fees for the

attorneys pro tem, the State’s expert witnesses, and the State’s investigator. We

follow the reasoning of the Court of Criminal Appeals in Busby and conclude that

the Legislature has not authorized the trial court to include these enumerated fees

as court costs. See id. We hold that the trial court erroneously included

$35,099.69 relating to attorney pro tem fees as court costs. We therefore modify

the judgment of the trial court in both cause numbers to reduce the total amount of

court costs for which appellant is responsible to $29,438.53 and to delete the

special finding including attorney pro tem fees, State expert witness fees, and State

investigator fees as court costs and ordering appellant to pay these amounts. See

Cates, 402 S.W.3d at 252 (holding that proper remedy when trial court erroneously

16
included amounts as court costs is to modify judgment to delete erroneous

amounts).

Finally, we note that the Court of Criminal Appeals stated in Johnson that

“court costs are not part of the guilt or sentence of a criminal defendant . . . .”

2014 WL 714736, at *2. Thus, our decision on remand to delete the attorney pro

tem fees from appellant’s costs assessment in the trial court’s written judgment

does not affect our prior holding affirming her conviction. See id. at *4 n.4 (stating

that court costs “are a collateral matter to a defendant’s guilt or punishment”).

We sustain appellant’s sole issue on remand.

Conclusion

We modify the trial court’s judgments in both cause numbers to reduce the

total amount of court costs for which appellant is financially responsible to

$29,438.53 and to delete the special finding including attorney pro tem fees, State

expert witness fees, and State investigator fees as court costs and ordering

appellant to pay these amounts. We affirm the judgments of the trial court as

modified.

Evelyn V. Keyes
Justice

Panel consists of Justices Keyes, Sharp, and Huddle.

Publish. TEX. R. APP. P. 47.2(b).
17