Concurring opinion issued December 15, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00592-CR
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EDUARDO MARTINEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Case No. 1031995
CONCURRING OPINION
I concur in the judgment and join the court’s opinion, which is premised
correctly on the factual basis for assessing the court costs as revealed in the appellate
record—reasoning suggested by the State only as an alternative argument relegated
to a footnote. I write separately to squarely address the State’s main argument: that
our appellate review “of court costs on appeal to determine if there is a basis for the
cost”1 can be satisfied by simply confirming that “the payment of court costs is
mandated by the legislature.”2 I disagree with this interpretation of the scope of
review required by Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014).
Johnson stands for the proposition that we don’t review an assessment of court
costs by applying the same due-process standard described in Jackson v. Virginia3
and Brooks v. State4 to evaluate whether the trial record contains sufficient
evidentiary proof of a defendant’s guilt before a criminal conviction will be
sustained.5 But that doesn’t mean the assessment of costs requires no factual basis
whatsoever in the procedural history of the case.
Nothing in Johnson suggests, as the State argues in this appeal, that the mere
statutory authorization to charge a particular type of fee is itself a sufficient “basis”
to affirm the assessment of court costs, without reference to the facts. To the
contrary, Johnson expressly held: “a specific amount of court costs need not be
1
Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014).
2
State’s Appellate Brief at 9.
3
443 U.S. 307, 99 S. Ct. 2781 (1979).
4
323 S.W.3d 893 (Tex. Crim. App. 2010).
5
See Johnson, 423 S.W.3d at 389–90.
2
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.”6 These “facts in
the record” could take many forms which might not satisfy the rules of evidence if
they were offered at trial as formal proof of the underlying facts justifying the fee.7
In sum, statutory authority to charge a fee is not a fully adequate “basis” upon
which the State can rely in response to a challenge to an assessment of court costs.
To the extent any other courts may have suggested that is the rule,8 we should not
follow them.
Michael Massengale
Justice
Panel consists of Justices Massengale, Brown, and Huddle.
Justice Massengale, concurring.
Publish. TEX. R. APP. P. 47.2(b).
6
423 S.W.3d at 395 (emphasis supplied).
7
See, e.g., Cardenas v. State, 403 S.W.3d 377, 388–89 (Tex. App.—Houston
[1st Dist.] 2013) (observing that even without the “roadmap” provided by a
bill of costs, “the clerk’s record generated in the trial court through the entry
of judgment” demonstrated “facts and circumstances sufficient to justify” the
full measure of costs assessed in the case), aff’d, 423 S.W.3d 396 (Tex. Crim.
App. 2014).
8
See, e.g., Hunter v. State, No. 14-15-00575-CR, 2016 WL 675327, at *2 (Tex.
App.—Houston [14th Dist.] Feb. 18, 2016, no pet.) (per curiam) (“Because
the sheriff’s fee has a basis in law, the fee will remain in the judgment.”).
3