Opinion issued April 4, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00985-CR
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ERIK DELGADO GARCIA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court
Harris County, Texas
Trial Court Case No. 1253927
MEMORANDUM OPINION
A jury found appellant Erik Delgado Garcia guilty of the offense of reckless
bodily injury to a child.1 During the punishment phase, the jury found the
allegations in one enhancement paragraph to be true and assessed appellant’s
punishment at 40 years in prison with a $4,000 fine. The trial court also imposed
court costs against appellant in the judgment. Presenting one issue on appeal,
appellant contends that there is “insufficient evidence” to support the court costs
imposed by the trial court.
We affirm.
Background
In the judgment of conviction, the trial court ordered appellant to pay court
costs of $275.00.2 On appeal, appellant filed a “designation of Clerk’s Record” in
which he included a request for “[t]he bill of costs reflecting all fees and costs
assigned to Defendant post-conviction.” The clerk’s record did not originally
contain a bill of costs. After the parties filed their original briefing, we ordered the
district clerk’s office to supplement the record with a bill of costs. The district
1
See TEX. PENAL CODE ANN. § 22.04 (Vernon Supp. 2012).
2
The trial in this case, including the punishment phase, lasted for five days.
Because appellant has limited his issue on appeal to one challenging court costs,
we do not discuss the evidence offered at trial or the facts underlying the offense.
2
clerk filed a supplemental record containing a bill of costs. The bill reflects costs
and fees totaling $275, the same amount the trial court ordered appellant to pay.
Court Costs
In his sole issue, appellant argues that the evidence is insufficient to support
the assessment of $275 in court costs.
In his original brief, appellant’s sufficiency argument was based on the
absence of a bill of costs in the clerk’s record. Appellant asserted that “because he
has been given no notice of the items of costs assessed against him, he has had no
opportunity to be heard on the correctness of those costs.” Appellant argued this
rose to a violation of his right to due process under the federal constitution and a
violation of his right to due course of law under the state constitution. See U.S.
CONST. amend. XIV; TEX. CONST. art. I, § 19. Appellant also complained that
“there is no way to determine whether the assessed costs include attorney’s fees.”
See Mayer v. State, 309 S.W.3d 552, 553 (Tex. Crim. App. 2010) (holding that, if a
defendant is found to be indigent at outset of trial, some evidence must presented
to trial court showing a change in his financial circumstances before attorney’s fees
can be assessed against him). 3
3
In its original response brief, the State asserted that appellant’s complaint is not
ripe for appellate review. The ripeness doctrine protects against judicial interference
until a decision has been formalized and its effects felt in a concrete way by the
challenging parties. State ex rel. Watkins v. Creuzot, 352 S.W.3d 493, 504 (Tex. Crim.
App. 2011). To determine whether an issue is ripe for adjudication, we evaluate both the
3
As mentioned, since appellant filed his opening brief, we ordered the record
supplemented with a bill of costs. The costs bill was generated and signed by the
district clerk’s office after the trial court rendered judgment. 4 The costs bill
itemizes the fees and costs assessed against appellant.
fitness of the issues for judicial decision and the hardship to the parties of withholding
court consideration. Id. The State asserted that the issue is not ripe because appellant has
not been asked to pay the costs. The State pointed out that appellant is not required to
pay the court costs until a bill of costs has been produced. See TEX. CODE CRIM. PROC.
ANN. art. 103.001 (Vernon 2010) (providing that a cost is not payable by person charged
until a bill of costs is produced or ready to be produced). However, since the State filed
its brief, the record has been supplemented with a bill of costs. The State also intimated
that the issue is not ripe because Government Code section 501.014(e) requires the trial
court to issue a notification of withdrawal before funds may be withdrawn from an
inmate account. See TEX. GOV’T CODE ANN. § 501.014(e) (Vernon 2012). But
Government Code section 501.014(e)(4) also indicates that a withdrawal notification can
be issued to pay “in full . . . all orders for court fees and costs.” Id. Because the amount
of costs ordered in the judgment may serve as a basis to issue a withdrawal notification,
and a bill of costs has been produced, appellant’s challenge to the portion of the judgment
ordering him to pay costs is ripe for appellate review. Additionally, the State cites Code
of Criminal Procedure 103.008, which provides that a defendant has one year after the
date of the final disposition of his case, in which costs were imposed, to file a motion
seeking to correct any error in the costs. See TEX. CODE CRIM. PROC. ANN. art.
103.008(a) (Vernon 2006). Unlike the State, we do not perceive the availability of
additional or alternative remedies as negating the ripeness of appellant’s direct appellate
challenge to costs assessed in the judgment.
4
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. The costs are listed on two pages. We
note that Code of Criminal Procedure article 103.009(a) requires the clerk of a court to
keep a fee record; however, there is no indication that the fee record cannot be kept
electronically. See TEX. CODE CRIM. PROC. ANN. art. 103.009(a) (Vernon 2006). Article
103.009(b) also provides that any person may inspect such fee record. Id. art.
103.009(b); see, e.g., Gonzales v. State, 07–10–00383–CR, 2012 WL 3553004, at *2
(Tex. App.—Amarillo Aug. 17, 2012, pet. ref’d) (mem. op., not designated for
publication) (affirming judgment assessing court costs in case in which appellant had
4
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
following are the costs and fees assessed against appellant as identified in the bill
of costs in the supplemental clerk’s record, along with the corresponding statutory
provision mandating their assessment:
• $40 “clerk’s fee” (See id. art. 102.005(a) (“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.”)).
• $5 “security fee” (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.”)).
• $4 “jury reimbursement fee” (See id. art. 102.0045(a) (“A person
convicted of any offense . . . 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.”)).
• $25 “records preservation fee” (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.”)).
• $2 “support of [indigent] defense” (See TEX. LOC. GOV’T CODE ANN.
§ 133.107(a) (Vernon Supp. 2012) (“A person convicted of any
challenged costs assessment on ground that costs were improper because the record
contained no indication how costs were determined; court relied, in part, on section
103.009 provision permitting inspection of fee record).
5
offense . . . 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 judiciary fee[]” (See id. § 133.105(a) (Vernon 2008) (“A
person convicted of any offense . . . 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.”)).
• $133 “consolidate court cost” (See id. § 133.102(a)(1) (Vernon Supp.
2012) (requiring that a person convicted of an offense shall pay as a
court cost, in addition to all other costs, “consolidated court fees” in
the amount of $133 on conviction of a felony).
The bill of costs also lists a sheriff’s fee of $60. The record supports
assessment of each of the costs constituting the sheriff’s fee, as follows:
• $5 “commitment” and $5 “release” (See 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 . . . .”)); and
• $5 “arrest without warrant or capias” (See 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 . . . .”)). 5
5
In his Second Objection to the supplemental record, appellant contends that “the
Code of Criminal Procedure mandates that there be a fee record for any Sheriff’s
costs.” See TEX. CODE CRIM. PROC. ANN. art. 103.009 (“Each clerk of a court,
county judge, justice of the peace, sheriff, constable, and marshal shall keep a fee
record.”). We addressed this argument on rehearing in Cardenas. There, as in this
case, appellant “presents no authority that an article 103.009 fee record must be
filed with a trial court to support the inclusion of a sheriff’s fees among the costs
of court chargeable to a defendant convicted of a crime.” Cardenas v. State, 01-
11-01123-CR, 2013 WL 1164365, at *6 n.10 (Tex. App.—Houston [1st Dist.]
March 21, 2013, no pet. h.). In addition, as in Cardenas, appellant “also presents
6
• 50 “serving capias” (TEX. CODE CRIM. PROC. ANN. art.
102.011(a)(2) (Vernon Supp. 2012) (“A defendant convicted of
a felony or a misdemeanor shall pay the following fees for
services performed in the case by a peace officer . . . $50 for
executing or processing an issued arrest warrant, capias, or
capias pro fine. . . .”)).
These fees and costs total $275, the amount ordered in the judgment. The
bill of costs does not list attorney’s fees as an assessed cost.
After the district clerk filed the supplemental record containing the bill of
costs, we permitted the parties to file additional briefing. In his supplemental brief,
appellant neither asserts that the costs assessed against him are not authorized by
statute nor does he dispute that Texas law requires that he pay them. He also does
not contend that the assessed costs are inapplicable to the underlying facts and
circumstances of this case. Instead, appellant indicates that it was not appropriate
for a bill of costs to be “created” after the trial court had rendered judgment.
Code of Criminal Procedure article 103.006 provides that “[i]f a criminal
action . . . is appealed, an officer of the court shall certify and sign a bill of costs
stating the costs that have accrued and send the bill of costs to the court to which
the action or proceeding is transferred or appealed.” TEX. CODE PROC. ANN. art.
103.006 (Vernon 2006). Pursuant to the language of article 103.006, a bill of costs
shall be certified, signed, and sent on the appeal of a criminal action, which
no argument that the events described in the appellate record did not actually
occur, or that the corresponding costs were not legally authorized or were
inaccurately assessed.” Id.
7
necessarily occurs after rendition of a final judgment. Thus, the statute appears to
contemplate the creation of a bill of costs after rendition of the judgment; that is, at
the time the judgment is appealed. See Cardenas v. State, 01-11-01123-CR, 2013
WL 1164365, at *4 (Tex. App.—Houston [1st Dist.] March 21, 2013, no pet. h.).
Appellant cites Johnson v. State for the proposition that a bill of costs must
be created before rendition of judgment. 389 S.W.3d 513, 515 n.1 (Tex. App.—
Houston [14th Dist.] 2012, pet. filed). In Cardenas, we distinguished Johnson,
noting that the Johnson court had not addressed article 103.006 or Rules of
Appellate Procedure 34.5 and 44.3, which permit supplementation of the record.
Cardenas, 2013 WL 1164365, at *5. 6
In addition, appellant contends that “the newly created bill of costs . . .
violates” not only the holding in Johnson but also the following unpublished
opinions: (1) Tafolla v. State, No. 06–12–00122–CR, 2012 WL 6632767 (Tex.
App.—Texarkana Dec. 20, 2012, no pet.); (2) Solomon v. State, No. 04–12–
00239–CR, 2012 WL 6604497 (Tex. App.—San Antonio Dec. 19, 2012, no. pet.);
and (3) Cuba v. State, No. 06–12–00106–CR, 2012 WL 6152965 (Tex. App.—
6
We also held in Cardenas that it is appropriate for an appellate court to order a
supplemental record containing a bill of costs. We noted that “the rules of appellate
procedure provide that ‘[a] court of appeals must not affirm or reverse a judgment or
dismiss an appeal for formal defects or irregularities in appellate procedure without
allowing a reasonable time to correct or amend the defects or irregularities.’” 2013 WL
1164365, at *4 (citing TEX. R. APP. P. 44.3.). We further explained that we are
specifically authorized to direct the trial court clerk to supplement the record with any
relevant omitted item. Id. (citing TEX. R. APP. P. 34.5(c)(1), (3)).
8
Texarkana Dec 11, 2012, no pet.). However, as we explained in Cardenas,
“[b]ecause we ordered the supplementation of the appellate record to request a bill
of costs, the courts in Johnson, Tafolla, and Solomon confronted different
procedural circumstances, and their reasoning is inapplicable to the circumstances
before us.” Cardenas, 2013 WL 1164365, at *7. The same can be said for the
court in Cuba, 2012 WL 6152965, at *1. “To the extent any party to those cases
may have requested, or those courts may have considered, the justifications for
ordering a supplemental record as explained in this opinion, none of those courts
explained why supplementation is not authorized by article 103.006 and appellate
rules 34.5 and 44.3, as we believe it is.” Cardenas, 2013 WL 1164365, at *7.
Appellant also contends that “[d]ue process is thwarted if the clerk can
create a costs bill after the conviction and supplement the record with it.”
Appellant relies on the Harrell v. State in making this argument. 286 S.W.3d 315
(Tex. 2009). In Cardenas, we explained, “Harrell is procedurally distinguishable
because it was a civil proceeding filed by a prison inmate who challenged the
withdrawal of funds from his trust account to pay court costs, but did not challenge
the amount of costs assessed.” Cardenas, 2013 WL 1164365, at *5 (citing Harrell,
286 S.W.3d at 316–17). We acknowledged that an appellant in a direct criminal
appeal, challenging the assessment of court costs, may raise the issue on appeal
even though he did not make the objection in the trial court. Id. For this reason,
9
we stated that “Cardenas was not procedurally prejudiced by his alleged inability
to raise his objections in the trial court.” Id.
We also noted that there is a separate procedural avenue to seek correction
of any error in the assessed costs. Id. (citing TEX. CODE CRIM. PROC. ANN. art.
103.008(a) (“On the filing of 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.”)). We explained that “Harrell did not address the article 103.008 procedure
for correcting court costs. And in any case, that opinion does not purport to
specify the only means by which a criminal defendant can contest an assessment of
court costs.” Id. In Cardenas, we held that an appellant’s ability to contest the
assessment of costs for the first time on appeal, and the availability of the article
103.008 review process, provide an appellant with adequate due process,
irrespective of his alleged inability to object in the trial court to the specific fees
identified in the later-generated bill of costs. See id.
Based on the reasoning in Cardenas, we hold that appellant has not been
denied due process with respect to his ability to challenge the basis of the costs
assessed in the judgment. See id. The supplemental record identifies the basis for
the court costs, totaling $275, assessed in the judgment. The fees listed in the bill
10
of costs are statutorily mandated as discussed supra. Appellant does not contend
that any of the fees are not applicable to the facts and circumstances of this case. 7
We overrule appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
Do not publish. TEX. R. APP. P. 47.2(b).
7
In his supplemental brief, appellant asserts that “one objection [appellant] could
have offered if he had been privy to the court costs bill when assessed was
constitutionality of the $133 charge for the ‘consolidate court cost.’” He asserts “such a
constitutional challenge cannot be raised on appeal.” As mentioned, the $133 fee is
mandated by Local Government Code section 133.102(a)(1). That section is entitled
“Consolidated Fees on Conviction” and provides, “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
TEX. LOC. GOV’T CODE ANN. § 133.102(a)(1) (Vernon Supp. 2012). Appellant was
convicted of a felony and is thus required by statute to pay the $133 fee. The trial court’s
authority to assess the $133 fee as part of the court costs in the judgment is section
133.102(a)(1), mandating that appellant, a convicted felon, pay the fee, irrespective of
whether the trial court had the costs bill in front of it when it rendered judgment. In any
event, appellant has not briefed his constitutionality challenge to the $133 fee with
sufficient specificity for us to evaluate either the preservation or the merits aspects of
such challenge. See TEX. R. CIV. P. 38.1(i).
11
Erik Delgado Garcia v. State
Combined Opinion