Opinion issued July 30, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00361-CR
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MANUEL SANTOS MARTINEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Case No. 1216791
MEMORANDUM OPINION ON REHEARING 1
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We originally issued our memorandum opinion in this appeal on June 11, 2013.
The State filed a motion for rehearing. We deny the motion for rehearing,
withdraw our previous memorandum opinion, vacate our judgment, and issue this
memorandum opinion and the related judgment in their stead.
Appellant, Manuel Santos Martinez, challenges the trial court’s judgment
adjudicating him guilty of the offense of possession of a controlled substance and
sentencing him to 35 years in prison. Appellant presents two issues on appeal. He
contends that the evidence was insufficient to support the trial court’s finding
underlying its decision to grant the State’s motion to adjudicate his guilt.
Appellant also asserts that the evidence was not sufficient to support the trial
court’s assessment of court costs against him.
We affirm the judgment, as modified.
Background
Appellant was placed on four years’ deferred adjudication community
supervision after pleading guilty to the offense of possession of between one and
four grams of cocaine. He also pleaded true to the allegations in two enhancement
paragraphs.
The State later filed a motion to adjudicate appellant’s guilt, asserting that
appellant had violated the conditions of his community supervision by committing
the offense of burglary of a habitation. The State also alleged that appellant had
failed to pay court costs as ordered.
At the adjudication hearing, the State presented the testimony of Ashley
Taylor. She testified that on September 6, 2011 she stayed home from work
because she was sick. At around 1:00 p.m. that day, Taylor was lying on the sofa
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when she heard a knock on her front door. Because she was sick, she did not
answer the door. Taylor thought the person would go away, but they continued to
knock. The knocking got progressively louder. Taylor thought perhaps her
husband had forgotten his key and had come home for lunch. She called her
husband and learned that it was not him at the door. Taylor went to a side window
to see who it was. She then saw a man—later identified as appellant—walking to a
car parked on the street in front of her house. The man got in the passenger side of
the car, and it drove away.
Taylor’s husband told her over the phone that the people in the car might be
“casing the house.” He also told her that he was coming home and suggested that
she call the police, which she did. After getting off the phone, Taylor retrieved a
gun for protection in case appellant returned.
Taylor was waiting for her husband and the police to arrive when she saw
the same car return and pull into her driveway. She saw appellant get out of the
passenger side of the car. Appellant walked to her front door and began to knock.
Taylor did not answer the door. She suddenly heard a loud noise and realized that
appellant had kicked in her back door, which is in the kitchen. Taylor ran to the
kitchen doorway and yelled at appellant to “get the F out of her house.” Taylor
saw that appellant was approximately three feet into her house from the back door
and was standing in her kitchen. Taylor testified that she was face-to-face with
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appellant and made eye contact with him. When he saw Taylor, appellant ran out
the backdoor without saying anything to her. Taylor chased after appellant and
saw him run back to the car in the driveway and get in the passenger side. Taylor
testified that a driver was waiting in the car. The car then sped away. Taylor’s
husband and the police arrived a short time later.
Taylor identified appellant at the adjudication hearing as the man who had
entered her home. She stated that she did not previously know him and had not
given him permission to enter her house. Taylor acknowledged that appellant had
not taken anything from her home.
After hearing Taylor’s testimony, the trial court found the State’s allegation
that appellant had violated the conditions of his community supervision by
committing the offense of burglary of a habitation to be true. The court found the
State’s allegation that appellant had not paid court-ordered court costs was not true
because the State had not offered evidence to support that allegation.
Appellant testified during the punishment phase. He stated that he was high
at the time that he entered Taylor’s house. He denied that he had entered the house
to steal, claiming that he did not know what he was doing. He stated, “I wasn’t in
my right mind.”
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The trial court sentenced appellant, as a habitual offender, to 35 years in
prison. In the judgment, the trial court ordered appellant to pay $350 in court
costs. This appeal followed. Appellant raises two issues.
Adjudication of Guilt
In his first issue, appellant contends that the trial court abused its discretion
by adjudicating him guilty because the evidence was insufficient to show that he
had violated the terms and conditions of his community supervision by committing
the offense of burglary of a habitation.
A. Standard of Review
A trial court’s determination on a motion to adjudicate is reviewable in the
same manner as a determination of a motion to revoke community supervision.
TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(b) (Vernon Supp. 2012). A
revocation proceeding is neither criminal nor civil in nature; rather, it is an
administrative proceeding. Canseco v. State, 199 S.W.3d 437, 438 (Tex. App.—
Houston [1st Dist.] 2006, pet. ref’d). At a revocation hearing, the State must prove
by a preponderance of the evidence that the defendant has violated a condition of
his community supervision. Id. at 438–39. The State satisfies its burden if the
greater weight of credible evidence creates a reasonable belief that the defendant
violated a condition of his probation as alleged by the State. Solis v. State, 589
S.W.2d 444, 447 (Tex. Crim. App. 1979); Armstrong v. State, 82 S.W.3d 444, 448
5
(Tex. App.—Austin 2002, pet. ref’d). Proof of a single violation is sufficient to
support a revocation. Canseco, 199 S.W.3d at 439.
Our review of an order adjudicating guilt and revoking community
supervision is limited to determining whether the trial court abused its discretion in
determining that the defendant violated the terms of his community supervision.
Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006); Duncan v. State,
321 S.W.3d 53, 56–57 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). We view
the evidence in the light most favorable to the trial court’s order. Canseco, 199
S.W.3d at 439; Duncan, 321 S.W.3d at 57. As the trier of fact at a revocation
proceeding, the trial court determines the credibility of the witnesses and the
weight to be given to their testimony. Armstrong, 82 S.W.3d at 448.
B. Analysis
Appellant contends that the trial court abused its discretion when it found
that he violated the terms of his community supervision by committing the offense
of burglary of a habitation. We disagree.
The trial court determined that appellant violated Penal Code section
30.02(a)(3). Under that provision, a person commits the offense of burglary if,
without the effective consent of the owner, he enters a habitation and commits or
attempts to commit a theft. TEX. PENAL CODE ANN. § 30.02(a)(3) (Vernon Supp.
2012). Appellant argues that the State failed to prove, by a preponderance of the
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evidence, that he committed the offense of burglary. Appellant points out that the
evidence showed that he was only three feet inside the kitchen when he was met by
Taylor, who was holding a gun and shouting at him to leave. Appellant further
points out that he then immediately left the house. He argues that the State offered
no evidence to show that he had the intent to commit the offense of burglary
because “his only action was to flee immediately.”
Actual commission of a theft is not a prerequisite to the commission of
burglary. Phillips v. State, 538 S.W.2d 116, 117 (Tex. Crim. App. 1976). Property
need not be taken for proof of intent to commit theft to be sufficient. See Ortega v.
State, 626 S.W.2d 746, 749 (Tex. Crim. App. 1981). In Ortega, the court held the
following evidence sufficient to show intent to commit theft: (1) the appellant had
been seen prying on the front door of a house in which no one was then home; (2)
an accomplice waited in a car parked in front of the house; (3) when he was seen
by a uniformed police officer, the appellant immediately stopped his attempt to
enter the house and fled in the waiting car; (4) the screen door latch had been
pulled off and the wooden door of the house had been damaged in an attempt to
pry it open. Id.; see Gear v. State, 340 S.W.3d 743, 747 (Tex. Crim. App. 2011)
(holding evidence sufficient to show intent to commit burglary in case in which
appellant broke window on house, but had not entered home, was confronted by
homeowner, and then fled); Stearn v. State, 571 S.W.2d 177, 177 (Tex. Crim. App.
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1978) (holding evidence of intent to commit theft sufficient when defendant was
found in residence’s kitchen and immediately fled, even though nothing in house
had been disturbed).
In a burglary prosecution, specific intent to steal or commit theft may be
inferred from the circumstances. Simmons v. State, 590 S.W.2d 137, 138 (Tex.
Crim. App. 1979); Linder v. State, 828 S.W.2d 290, 294 (Tex. App.—Houston [1st
Dist.] 1992, pet. ref’d). We note that evidence of flight is a circumstance from
which inference of guilt may be drawn. Bigby v. State, 892 S.W.2d 864, 883 (Tex.
Crim. App. 1994).
Here, in addition to appellant’s flight, the State also offered additional
evidence to show appellant’s intent to commit the offense of burglary. The
evidence showed that, after knocking on the door and determining that no one was
home, appellant left Taylor’s house in a car, but returned a short time later, pulling
into the driveway. Appellant again knocked on the front door. After no one
answered, appellant went to the back of the house and kicked in the kitchen door.
Appellant entered Taylor’s house, where he was confronted by her holding a gun
and yelling at him to leave. Appellant fled, running back to the car waiting with
his associate in the driver’s seat. The car sped off.
When viewed in the light most favorable to the trial court’s judgment,
Taylor’s testimony was evidence from which the trial court could have reasonably
8
inferred that appellant had the intent to commit theft when he entered the
residence. Courts evaluating the sufficiency of evidence in burglary cases have
held similar evidence to be sufficient to show intent to commit theft. 2 See, e.g.,
Gear, 340 S.W.3d at 747; Ortega, 626 S.W.2d at 749; Stearn, 571 S.W.2d at 177;
Cano v. State, No. 13–11–00568–CR, 2012 WL 6061788, at *6 (Tex. App.—
Corpus Christi Dec. 6, 2012, no pet.) (mem. op., not designated for publication).
We hold that the trial court did not abuse its discretion in revoking appellant’s
community supervision and adjudicating his guilt. See Rickels, 202 S.W.3d at
763–64.
We overrule appellant’s first issue.
Court Costs
In his second issue, appellant contends “there is no evidence in this case to
support the assessment of court costs.”
In its April 10, 2010 judgment, the trial court ordered appellant to pay court
costs of $350.00. Appellant filed a notice of appeal. He filed a “designation of
Clerk’s Record” in which he included a request for “[t]he bill of costs reflecting all
2
We note that appellant’s testimony denying that he entered the residence with the
intent to commit theft was given during the punishment phase, after the trial court had
found to be true the State’s allegation that appellant had violated the conditions of his
community supervision by committing a new offense. Moreover, as the trier of fact, the
trial court was the sole judge of the credibility of the witnesses and the weight to be given
to their testimony. See Canseco v. State, 199 S.W.3d 437, 439 (Tex. App.—Houston [1st
Dist.] 2006, pet. ref’d). Accordingly, the trial court was entitled to disbelieve appellant’s
testimony.
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fees and costs assigned to Defendant post-conviction.” The original clerk’s record
did not contain a bill of costs.
We ordered the district clerk’s office to supplement the record with a bill of
costs. That office filed a supplemental record containing a bill of costs. The bill
reflected costs and fees totaling $204. 3 In Cardenas v. State, we held that it is
appropriate for this Court to order the district clerk’s office to supplement the
clerk’s record to include the bill of costs. See 01–11–01123–CR, 2013 WL
1164365, at *4–5 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013, no pet. h.)
(citing TEX. CODE CRIM. PROC. ANN. art. 103.006 (Vernon 2006); TEX. R. APP. P.
34.5, 44.3).
The district clerk’s office filed a second supplemental clerk’s record. The
record contains an amended bill of costs. The amended bill provides that costs in
this case total $219, rather than $204, as reflected in the earlier filed bill of costs.
The second supplemental clerk’s record also contains a judgment nunc pro tunc
signed by the trial court on its own motion to correct the amount of costs assessed
against appellant. The judgment nunc pro tunc, signed February 8, 2013, reflects a
costs assessment of $219.
3
The document contained in the supplemental record indicates that it is from the
Harris County Clerk’s Justice Information Management Systems, commonly
referred to by its acronym “JIMS.” The document, entitled “JIMS Cost Bill
Assessment,” itemizes the various costs assessed in appellant’s case.
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A nunc pro tunc judgment allows the trial court to correct the record when
there is a discrepancy between the judgment as pronounced in court and the
judgment reflected in the record. Blanton v. State, 369 S.W.3d 894, 897–98 (Tex.
Crim. App. 2012). “Corrections to the record are limited to clerical errors and are
not appropriate for errors involving judicial reasoning.” Id. at 898.
Rule 23.1 of the Texas Rules of Appellate Procedure vests a trial court with
the authority to correct clerical mistakes or errors in a judgment or order through
entry of a nunc pro tunc judgment so long as the defendant has not appealed. See
TEX. R. APP. P. 23.1; State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994)
(interpreting former rule of appellate procedure 36, predecessor to current rule
23.1). Rule of Appellate Procedure 25.2(g) provides, “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); see also Green v.
State, 906 S.W.2d 937, 939 (Tex. Crim. App. 1995) (interpreting former appellate
rule 40(b)(2), predecessor to current rule 25.2). Thus, a trial court may not render
a judgment nunc pro tunc after the appellate record is filed in the court of appeals.
See TEX. R. APP. P. 25.2(g); see also Green, 906 S.W.2d at 939.
Here, the appellate record had already been filed in this Court when the nunc
pro tunc judgment was signed on February 8, 2013. Accordingly, the trial court no
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longer had jurisdiction to sign the nunc pro tunc judgment. See TEX. R. APP. P.
25.2(g); see also Green, 906 S.W.2d at 939 (holding findings of fact and
conclusions of law, entered after filing of appellate record, were void). Because
the trial court lacked jurisdiction to sign the judgment nunc pro tunc to correct its
judgment after the appellate record in this case was filed, we disregard the nunc
pro tunc judgment contained in the supplemental clerk’s record. We review the
original judgment signed on April 10, 2012, assessing costs of $350.
A defendant convicted of a felony offense must pay certain statutorily
mandated costs and fees, which vary depending on the type of offense, the
underlying facts, 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 appellant was convicted of the felony offense of
possession of between one and four grams of cocaine in district court, supporting
each of the following costs listed in the amended bill of costs:
• $40 “clerk’s fee” (See TEX. CODE CRIM. PROC. ANN. art.
102.005(a) (Vernon 2006) (“A defendant convicted of an
offense in . . . a district court shall pay for the services of the
clerk of the court a fee of $40.”));
• $133 “consolidated court costs” (See TEX. LOC. GOV’T CODE
ANN. § 133.102(a)(1) (Vernon Supp. 2012) (entitled
“Consolidated 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. . . .”));
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• $4 “jury reimbursement fee” (See TEX. CODE CRIM. PROC.
ANN. art. 102.0045(a) (Vernon Supp. 2012) (“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.”));
• $2 “support of [indigent] defense” (See TEX. LOC. GOV’T
CODE ANN. § 133.107(a) (Vernon Supp. 2012) (“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.”));
• $6 “support of judiciary fee” (See id. § 133.105(a) (Vernon
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.”));
• $25 “DC records preservation” (See TEX. CODE CRIM. PROC.
ANN. 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.”));
• $5 “security fee” (See id. art 102.017(a) (Vernon Supp. 2012)
(“A defendant convicted of a felony offense in a district court
shall pay a $5 security fee as a cost of court.”));
• $60 “drug court program fee” (See id. art. 102.0178(a)(2)
(Vernon Supp. 2012) (“In addition to other costs on
conviction imposed by this chapter, a person shall pay $60 as
a court cost on conviction of an offense punishable as a Class
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B misdemeanor or any higher category of offense under
Chapter 481, Health and Safety Code.”)
The amended bill of costs also lists a sheriff’s fee of $90. See generally id.
art. 102.011 (listing fees for services of peace officers). Added together, the
amended bill of costs reflects total costs of $365. However, the amended costs bill
also reflects that appellant has previously paid $146 of these costs. Thus, the
amended bill of costs supports an assessment of court costs in the amount of $219,
but does not support the $350 costs assessment ordered in the judgment.
We have the power to modify an incorrect judgment to make the record
speak the truth when we have the necessary information before us to do so. See
TEX. R. APP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App.
1992). Accordingly, we overrule appellant’s sole issue, but we modify the trial
court’s April 10, 2012 judgment to reflect an assessment of $219 in court costs.
See TEX. R. APP. P. 43.2(b); Bigley, 865 S.W.2d at 27–28 (appellate court has
authority to modify incorrect judgment when necessary information is available to
do so).
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Conclusion
We affirm the judgment, as modified.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
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