ACCEPTED
12-15-00049-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
6/8/2015 5:17:19 PM
CATHY LUSK
CLERK
NUMBER 12-15-00049-CR
FILED IN
12th COURT OF APPEALS
IN THE TWELFTH DISTRICT COURT OF APPEALS TYLER, TEXAS
TYLER, TEXAS 6/8/2015 5:17:19 PM
CATHY S. LUSK
Clerk
VALERIE SALYARDS GILMORE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 7th District Court of Smith County, Texas
Trial Cause Number 007-1439-14
STATE’S BRIEF
ORAL ARGUMENT NOT REQUESTED
D. MATT BINGHAM
Criminal District Attorney
Smith County, Texas
AARON REDIKER
Assistant District Attorney
State Bar of Texas Number 24046692
Smith County Courthouse, 4th Floor
Tyler, Texas 75702
Phone: (903) 590-1720
Fax: (903) 590-1719
Email: arediker@smith-county.com
T ABLE OF C ONTENTS
Index of Authorities.............................................................................................. 2
Statement of Facts ................................................................................................ 4
Summary of Argument ......................................................................................... 4
I.ISSUE: The trial court did not err in assessing a specific amount of court costs
against appellant in the judgment and withdrawal order because a bill of costs
was properly added to the record through a supplemental clerk’s record. ....... 4
Standard of Review .............................................................................................. 4
Argument ...............................................................................................................5
Certificate of Compliance .................................................................................... 10
Certificate of Service ........................................................................................... 10
1
I NDEX OF A UTHORITIES
Texas Cases
Allen v. State, 426 S.W.3d 253 (Tex. App.—Texarkana 2013, no pet.) ...................... 8
Armstrong v. State, 340 S.W.3d 759 (Tex. Crim. App. 2011) ..................................... 5, 6
Ballinger v. State, 405 S.W.3d 346 (Tex. App.—Tyler 2013, no pet.) ........................ 6
Brewer v. State, 572 S.W.2d 719 (Tex. Crim. App. 1978) ............................................... 9
Johnson v. State, 405 S.W.3d 350 (Tex. App.–Tyler 2013, no pet.) ............................. 7
Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014) ........................................... 5, 8
Owen v. State, 352 S.W.3d 542 (Tex. App.–Amarillo 2011, pet. ref’d) ...................... 8
Texas Statutes
Tex. Code Crim. Proc. Ann. art. 102.0045............................................................................. 7
Tex. Code Crim. Proc. Ann. art. 102.005 ............................................................................... 7
Tex. Code Crim. Proc. Ann. art. 102.011 ............................................................................... 7
Tex. Code Crim. Proc. Ann. art. 102.0169............................................................................. 7
Tex. Code Crim. Proc. Ann. art. 102.017 ............................................................................... 7
Tex. Code Crim. Proc. Ann. art. 102.0178............................................................................. 7
Tex. Code Crim. Proc. Ann. art. 103.001 ............................................................................... 5
Tex. Code Crim. Proc. Ann. art. 103.006 ............................................................................... 6
Tex. Code Crim. Proc. Ann. art. 103.009 ............................................................................... 8
Tex. Gov’t Code Ann. § 51.851 .................................................................................................. 7
Tex. Loc. Gov’t Code Ann. § 133.102 ...................................................................................... 7
Tex. Loc. Gov’t Code Ann. § 133.103 ...................................................................................... 7
Tex. Loc. Gov’t Code Ann. § 133.105 ...................................................................................... 7
Tex. Loc. Gov’t Code Ann. § 133.107 ...................................................................................... 7
Texas Rules
Tex. R. App. P. 34.5 ......................................................................................................................... 6
Tex. R. App. P. 43.2 ......................................................................................................................... 8
Other Authorities
TEX. OFFICE OF COURT ADMIN., DISTRICT CLERK'S FELONY COURT COST CHART (2013).... 7
2
NUMBER 12-15-00049-CR
IN THE TWELFTH DISTRICT COURT OF APPEALS
TYLER, TEXAS
VALERIE SALYARDS GILMORE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 7th District Court of Smith County, Texas
Trial Cause Number 007-1439-14
STATE’S B RIEF
TO THE HONORABLE COURT OF APPEALS:
Comes now the State of Texas, by and through the undersigned Assistant
Criminal District Attorney, respectfully requesting that this Court overrule
appellant’s sole alleged issue, modify the judgment and withdrawal order to
reflect the court costs assessed in the bill of costs, and affirm the judgment of
the trial court in the above-captioned cause as modified.
3
S TATEMENT OF F ACTS
Appellant has stated the essential nature of the proceedings and the
evidence presented at trial (Appellant's Br. 2). In the interest of judicial
economy, any other facts not mentioned therein that may be relevant to
disposition of appellant's alleged issue will be discussed in the State's
arguments in response.
Summary of Argument
As the record was properly supplemented with a bill of costs following
appellant’s notice of appeal, the trial court did not err in assessing a specific
amount of court costs in the judgment and withdrawal order. Where, as here,
the bill of costs reflects a different amount than that imposed in the judgment
and withdrawal order, the Court should modify the judgment and withdrawal
order to reflect the amount of court costs assessed in the bill.
I. I SSUE : The trial court did not err in assessing a specific amount
of court costs against appellant in the judgment and withdrawal
order because a bill of costs was properly added to the record
through a supplemental clerk’s record .
S TANDARD OF R EVIEW
“[C]ourt costs are not part of the guilt or sentence of a criminal defendant,
nor must they be proven at trial; rather, they are ‘a nonpunitive recoupment of
4
the costs of judicial resources expended in connection with the trial of the
case.’” Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014) (citing
Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011)). “As a result,
we 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, and traditional Jackson evidentiary-sufficiency
principles do not apply.” Johnson, 423 S.W.3d at 390.
A RGUMENT
Appellant complains that the trial court erred ordering the withdrawal of
funds from her inmate trust account without a supporting bill of costs
(Appellant’s Br. 3-5). However, “a specific amount of court costs need not be
supported by a bill of costs in the appellate record for a reviewing court to
conclude that the assessed court costs are supported by facts in the record.”
Johnson, 423 S.W.3d at 395. Article 103.001 of the Code of Criminal Procedure
provides that, “[a] cost is not payable by the person charged with the cost
until a written bill is produced or is ready to be produced, containing the
items of cost, signed by the officer who charged the cost or the officer who is
entitled to receive payment for the cost.” Tex. Code Crim. Proc. Ann. art.
103.001 (West 2014). “If a criminal action or proceeding is transferred from
5
one court to another or 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 Crim. Proc. Ann. art. 103.006 (West 2014). Moreover, “[c]ourt costs,
as reflected in a certified bill of costs, need neither be orally pronounced nor
incorporated by reference in the judgment to be effective.” Armstrong, 340
S.W.3d at 766. “If a relevant item has been omitted from the clerk's record,
the trial court, the appellate court, or any party may by letter direct the trial
court clerk to prepare, certify, and file in the appellate court a supplement
containing the omitted item.” Tex. R. App. P. 34.5(c)(1). “[A] bill of costs is a
relevant item that if omitted from the record, can be prepared and added to
the record via a supplemental clerk's record.” Johnson, 423 S.W.3d at 392.
Following her negotiated plea of guilty to the offense of possession of
methamphetamine, the trial court entered a judgment and withdrawal order
imposing court costs of $344.00 on 20 February 2015 (Clerk’s R. at 54-56).
However, the bill of costs filed by the Smith County District Clerk on 18 May
2015 shows the assessment of $369.00 in court costs and fees (Clerk’s R. Supp.
at 4). See, e.g., Ballinger v. State, 405 S.W.3d 346, 349 (Tex. App.—Tyler 2013,
no pet.) (“[S]upplementing the record to include the bill of costs is
6
appropriate and does not violate due process.”); Johnson v. State, 405 S.W.3d
350, 353 (Tex. App.–Tyler 2013, no pet.) (same). The charges listed in the bill
of costs and authority for each are as follows:
Authority Fee Description Amount
Tex. Code Crim. Proc. art. 102.005(a) Clerk’s Fee $40.00
Tex. Loc. Gov’t Code § 133.102 Consolidated Court Fees $133.00
Tex. Code Crim. Proc. art. 102.005(f) Records Management $22.50
Tex. Code Crim. Proc. art. 102.017(a) Courthouse Security $5.00
Tex. Code Crim. Proc. art. Warrant Fee $50.00
102.011(a)(2)
Tex. Code Crim. Proc. art. Bond Fee $10.00
102.011(a)(5)
Tex. Code Crim. Proc. art. 102.005(f) Records Management & $2.50
Preservation Fee – DC
Tex. Code Crim. Proc. art. 102.0045 Jury Service Fee $4.00
Tex. Loc. Gov’t Code § 133.105(a) Judiciary Fund State $5.40
Tex. Loc. Gov’t Code § 133.105(a) Judiciary Fund County $0.60
Tex. Loc. Gov’t Code § 133.107 Indigent Defense Court $2.00
Cost
Tex. Code Crim. Proc. art. 102.0169 Technology Fee $4.00
Tex. Code Crim. Proc. art. 102.0178 Drug Court Program $60.00
Tex. Gov’t Code § 51.851(d) E-Filing Fees Criminal $5.00
Tex. Loc. Gov’t Code § 133.103 Time Payment $25.00
Total $369.00
(Clerk's R. Supp. at 4). See TEX. OFFICE OF COURT ADMIN., DISTRICT CLERK'S
FELONY COURT COST CHART (2013), available at
http://www.txcourts.gov/media/681164/dc-felctcst090113.pdf. The total
amount of court costs listed in the bill of costs exceeds the amount listed in
the judgment and withdrawal order by $25.00 due to the assessment of a time
7
payment fee after appellant failed to pay all of her court costs and fees within
thirty days of the date judgment was entered (Clerk’s R. at 54-56; Clerk’s R.
Supp. at 4). Tex. Loc. Gov’t Code Ann. § 133.103(a) (West 2014). See Allen v.
State, 426 S.W.3d 253, 259 (Tex. App.—Texarkana 2013, no pet.) (bill of costs
controls when amount listed differs from amount reflected in judgment);
Owen v. State, 352 S.W.3d 542, 547 (Tex. App.–Amarillo 2011, pet. ref’d) (citing
Tex. Code Crim. Proc. Ann. art. 103.009(a) and (c) (West 2006)) (“A clerk of a
court is required to keep a fee record, and a statement of an item therein is
prima facie evidence of the correctness of the statement.”). As the record was
properly supplemented with a bill of costs, the costs and fees imposed by the
trial court and ordered withdrawn from her inmate trust account are
supported by the record. See Johnson, 423 S.W.3d at 392, 395-96 (“[A]lthough
a bill of costs is not required to sustain statutorily authorized and assessed
court costs, it is the most expedient, and therefore, preferable method.”).
Therefore, appellant’s sole alleged issue is without merit and should be
overruled. Since the necessary data for reformation is apparent from the
record, the Court should modify the judgment and order to withdraw funds to
reflect the assessment of $369.00 in court costs and affirm the judgment as
modified. See Tex. R. App. P. 43.2(b); Brewer v. State, 572 S.W.2d 719, 723 (Tex.
8
Crim. App. 1978) (“Where the Court has the necessary data and evidence
before it for reformation, the judgment may be reformed on appeal.”).
PRAYER
WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that the
Court overrule appellant’s sole alleged issue, modify the judgment and
withdrawal order to reflect the assessment of $369.00 in court costs, and
affirm the judgment of the 7th District Court of Smith County, Texas, in the
above-captioned cause as modified.
Respectfully submitted,
D. MATT BINGHAM
Criminal District Attorney
Smith County, Texas
/s/ Aaron Rediker
Aaron Rediker
Assistant District Attorney
SBOT #: 24046692
100 North Broadway, 4th Floor
Tyler, Texas 75702
Office: (903) 590-1720
Fax: (903) 590-1719 (fax)
arediker@smith-county.com
9
C ERTIFICATE OF C OMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned
attorney certifies that the word count for this document is 1,318 words as
calculated by Microsoft Word 2010.
/s/ Aaron Rediker
Aaron Rediker
C ERTIFICATE OF S ERVICE
On 8 June 2015, a legible copy of the State’s Brief was sent by email to A.
Reeve Jackson, attorney for appellant, at JLawAppeals@gmail.com.
/s/ Aaron Rediker
Aaron Rediker
10