ACCEPTED
13-15-00220-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
8/11/2015 8:41:55 AM
CECILE FOY GSANGER
CLERK
No. 13-15-00220-CR FILED IN
13th COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
IN THE COURT OF APPEALS 8/11/2015 8:41:55 AM
FOR THE THIRTEENTH DISTRICT OF TEXAS
CECILE FOY GSANGER
AT CORPUS CHRISTI - EDINBURG, TEXAS Clerk
JORGE RAMIREZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
On appeal from the 156th Judicial District Court
of Live Oak County, Texas
In Cause No. L-04-0062-3-CR-B
APPELLANT’S BRIEF
Julie Balovich
Texas Bar No. 24036182
TEXAS RIOGRANDE LEGAL AID, INC.
BEE COUNTY REGIONAL PUBLIC
DEFENDER
331A North Washington
Beeville, Texas 78102
(361) 358-1925 (phone)
(361) 358-5158 (fax)
jbalovich@trla.org
Attorneys for Appellant
IDENTITY OF PARTIES AND COUNSEL
APPELLANT
Jorge Ramirez
APPELLEE
The State of Texas
DEFENSE COUNSEL AT TRIAL
Jessica Canter
Michelle Ochoa
TEXAS RIOGRANDE LEGAL AID, INC.
BEE COUNTY REGIONAL PUBLIC DEFENDER
331A North Washington
Beeville, Texas 78102
STATE’S ATTORNEY AT TRIAL
Jon W. West, Assistant District Attorney
111 S. St. Mary’s St., Suite 203
Beeville TX 78102
APPELLANT’S ATTORNEY ON APPEAL
Julie Balovich
TEXAS RIOGRANDE LEGAL AID, INC.
BEE COUNTY REGIONAL PUBLIC DEFENDER
331A North Washington
Beeville, Texas 78102
STATE’S ATTORNEY ON APPEAL
Jose Aliseda (or his designated representative)
Live Oak County District Attorney’s Office
111 St. Mary’s St., Suite 203
Beeville, TX 78102
TABLE OF CONTENTS
Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Contents. . . . . . .. . . . . . . . . . . . . . . . .. . . . . . . . .. . . . . .. . . . . . . . ii
Table of Authorities…….…………………………………………………..iii
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Issues Presented . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . 1
Statement regarding Oral Argument…………………………………….… 2
Statement of Facts……………………………………………………….. 2
Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . .…. 4
Argument and Authority . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...4
Prayer ……………………………………………………………………….8
Certificate of Service………………………………………………………..8
Certificate of Compliance ……………………………………………….. 9
ii
INDEX OF AUTHORITIES
Cases
Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014)………………4, 7
Camacho v. Samaniego, 831 S.W.2d 804 (Tex. 1992)………………….…..4
Price v. State, No. 10-13-00403-CR, 2014 WL 4749075
(Tex. App.—Waco, Sept. 18, 2014, no pet.) (mem. op.)..…………...6
Habib v. State, 431 S.W.3d 737 (Tex. App.—Amarillo 2014, pet. ref’d.)….7
Constitution and Statutes
TEX. CODE CRIM. P,. art. 42.037…………………………………………6
TEX. CODE CRIM. P. art. 102.011……………………………………5, 6, 7
TEX. CODE CRIM. P. art. 103.002…………………………………….…...4
TEX. CODE CRIM. P. art. 102.011(b)……………………………………..7
iii
TO THE HONORABLE COURT:
Appellant Jorge Ramirez submits this brief in support of his appeal.
STATEMENT OF THE CASE
Appellant pled guilty to burglary of a building and was convicted and
sentenced to two years confinement and a $1,000 fine; his sentence was
suspended for four years and he was placed on community supervision. CR
51. The State moved to revoke his community supervision. CR 63. At his
revocation hearing, Appellant pled true. 1 RR 7. The trial court revoked his
community supervision and sentenced him to 180 days in state jail with
credit for time served, the original $1,000 fine and $2,392.25 in court costs –
specifically including the costs of a private transportation services to
extradite him from out of state. 1 RR 22, CR 101. Appellant moved for a
new trial on court costs only. CR 107. After a hearing, the trial court denied
the motion. 2 RR 7; CR 112. This appeal followed.
ISSUES PRESENTED
1. In the absence of a statute that authorizes the court to assess as
court costs reimbursement for the cost of a private transport
service, did the trial court erroneously assess those costs against
the defendant?
2. Is there a basis to support the assessment of court costs?
1
STATEMENT REGARDING ORAL ARGUMENT
Appellant does not request oral argument.
STATEMENT OF FACTS
On December 1, 2004, Appellant Jorge Ramirez entered a plea
agreement on the charge of burglary of a building. CR 14. He pled guilty
based upon the State’s recommendation of a sentence of two years
confinement in TDCJ State Jail Division suspended for four years while he
was placed on community supervision. CR 41. Appellant’s bond was
forfeited on January 12, 2005 and an alias capias issued. CR 128. On May
2, 2007, judgment was entered on the plea bargain agreement. CR 51. On
March 13, 2008, the State moved to revoke based upon a report from his
supervision officer that Appellant had withdrawn himself from treatment on
a weekend pass and did not return. CR 59-65.
On January 11, 2015, Appellant was arrested in Baldwin County,
Alabama. CR 72. Live Oak County Sheriff’s Department hired the United
States Prisoner Transport Service, a private company, to convey Appellant
from the Baldwin County Jail in Bayminette, Alabama to the Live Oak
County Jail. 1 RR 19. At Appellant’s revocation hearing, a sheriff’s deputy
testified that the Sheriff’s Office contracts with this service “when we have
2
someone that’s over normally 12, 15 hour drive for the deputies. Rather
than us having two deputies out of county for that period of time we have
this service pick the subjects up and bring them to us.” 1 RR 19. The court
admitted as evidence the invoice for the transport reflecting a cost of $1,630.
1 RR 21; State’s Exh. 3. The State requested that amount be assessed as
“restitution” to the Sheriff’s Department. 1 RR 22. Based upon Appellant’s
plea of true, the trial court revoked his probation, sentenced him to State Jail
for a period of 180 days with credit served including credit for his successful
completion of SAF-P, and ordered that the original $1,000 fine be paid as
well as court costs, including $1,630 for the transport service. 1 RR 22.
Appellant moved for a new trial to correct court costs, asserting that
there was no statutory basis for the assessment of the private transport
service and that the only applicable statute authorized an assessment based
upon mileage. CR 107. A hearing took place on May 6, 2015. 2 RR 1. At
the hearing, defense counsel introduced an internet-generated driving map
showing that the distance Appellant was transported was 707 miles. 2 RR 3-
4. CR 115. The trial judge denied the motion for new trial. 2 RR 6; CR 112.
3
SUMMARY OF ARGUMENT
Only statutorily authorized court costs may be assessed against a
criminal defendant. Article 102.011 requires a defendant convicted of a
felony to pay a $50 service fee for the cost of execution of an arrest warrant
and to pay the cost of an officer to travel to execute criminal process based
upon a mileage calculation. In this case, the Live Oak County Jail used a
private transport service and the trial court imposed the total out of pocket
cost of that service as a court cost rather than use the mileage formula
mandated by statute. Because the statute only authorizes travel expenses
based upon mileage, the imposition of these court costs was in error and
must be deleted and reformed.
ARGUMENT AND AUTHORITY
I. The Legislature has not authorized the actual expense of
extradition to be assessed as court costs.
The Court of Criminal Appeals has affirmed that “[o]nly statutorily
authorized court costs may be assessed against a criminal defendant.”
Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014); TEX. CODE
CRIM. P. art. 103.002. Certain court costs are mandatory. Johnson, 423
S.W.3d at 389. The Legislature requires that these costs be imposed upon
4
conviction. Id. Because the costs are fixed by statutes that are published
publicly in the laws of the State of Texas, the criminal defendant has
constructive notice of them. Id.
“The only fees that the sheriff may collect in criminal matters are
enumerated in Code of Criminal Procedure sections 102.001 and 102.011.”
Camacho v. Samaniego, 831 S.W.2d 804, 812 (Tex. 1992). Article 102.001
has been repealed. Id. Under article 102.011, a defendant convicted of a
felony must pay certain fees for the services provided by peace officers in
his case. TEX. CODE CRIM. P. art. 102.011. A defendant must pay $50 as a
fee for the execution or processing of an issued warrant or capias. Id. art.
102.011(a)(2). In addition to these fees, the defendant must pay the cost of
travel for an officer to execute or process an issued warrant and to return
from performing that service based upon a calculation of 29 cents per mile.
Id. art. 102.011(b). The Legislature prescribed specific rules for calculating
mileage: “the officer must use the railroad or the most practical route by
private conveyance.” Id. The statute expressly applies to “conveying a
prisoner arrested on a warrant or capias issued in another county to the court
or jail of the county.” Id. art. 102.011(b)(2).
Article 102.011 is the only statutory authorization for compensating
peace officers for the cost of extradition and it simply does not authorize the
5
actual expense of using a private transport service. Had the Legislature
intended to allow a law enforcement agency to recoup their actual cost of
extradition by whatever means that agency chose to use, it would have stated
so as it has done in other cases. C.f. TEX. CODE CRIM. P. art. 102.011(c)
(requiring the defendant to pay “actual necessary expenses for travel by the
most practical public conveyance” if an officer attaches a witness outside the
county). Instead, the Legislature expressly chose to limit the costs that could
be assessed against a defendant by imposing a fee per mile and requiring
officers to calculate mileage by using the railroad or most practical route by
private conveyance. Id. art. 102.011(b).
In sum, whether the Sheriff’s Department had a rational reason for
using the private transport service is immaterial. The agency is simply not
permitted to recoup that expense from the defendant as court costs. See Price
v. State, No. 10-13-00403-CR, 2014 WL 4749075, at *1 (Tex. App.—Waco,
Sept. 18, 2014, no pet.) (memo. op.) (not designated for publication)
(holding that a trial court erred in assessing transport fees for a bench
warrant because the fee was not statutorily authorized).
Nor may the Sheriff’s Department seek this cost as restitution.
Reimbursement to the county is by definition not restitution. Restitution is
defined as an amount paid to a victim to compensate him or her for injuries
6
or loss caused by the crime, or to a person or agency that compensated the
victim. TEX. CODE CRIM. PROC. art. 42.037. Neither definition applies.
Further, the amount was not attributed as restitution by the trial court in the
judgment or the district clerk in the bill of costs. CR 99, 101.
.
II. The court costs should be reformed to reflect the actual amount of
permissible transport costs as permitted by statute.
In reviewing an assessment of court costs, this Court determines if
there is a basis for the cost in the record and in the statute; traditional
Jackson legal sufficiency principles do not apply. Johnson, 423 S.W.3d at
390; Habib v. State, 431 S.W.3d 737, 743 (Tex. App.—Amarillo 2014, pet.
ref’d.)
The record reflects that the defendant was conveyed 707 miles to the
county from which his capias had issued. CR 115. Thus, a Live Oak County
officer would have been required to traverse 1,414 miles to convey him to
the Live Oak County Jail. At 29 cents per mile, Appellant should have been
assessed a total of $410.06 for his mileage. TEX. CODE CRIM. P. art.
102.011(b); see Habib, 431 S.W.3d at 743-44 (using mileage calculations to
determine basis of transport services imposed as court costs). The $50 fee
for processing the warrant or capias was already assessed in the court costs
under “motion to revoke.” CR 99.
7
Appellant asks this Court to reform the judgment by reducing the
court costs to $1,172.85.1
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this
Court reform the judgment for court costs and order the reformation of the
judgment as requested above. Appellant prays for such other and further
relief to which he may be entitled.
/s/ Julie Balovich
Julie Balovich
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing brief was served on
Jose Aliseda, Live Oak County District Attorney, 111 St. Mary’s St., Suite
203, Beeville, TX 78102 by electronic file manager on this 11th day of
August, 2015 with a courtesy copy served on Edward Shaughnessy by same
means.
/s/ Julie Balovich
Julie Balovich
1 The trial court assessed $2,392.25 in court costs. CR 101. The difference between the
charged transport fee of $1,630 and the amount Appellant contends could have been
permissibly charged -- $410.60 – is $1,219.40. Subtracting $1,219.40 from $2,392.25
brings the court costs down to $1,172.85.
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CERTIFICATE OF COMPLIANCE
I hereby certify that this brief complies with Texas Rule of Appellate
Procedure 9.4. The computer-generated word count for this document is
fewer than 2,500 words, including headers and footnotes.
/s/ Julie Balovich
Julie Balovich
9