Kelvin Houston A/K/A Kevin Houston v. State
2013 Tex. App. LEXIS 10600
| Tex. App. | 2013Background
- Appellant Kelvin (Kevin) Houston was convicted of two counts of sexual assault and sentenced to 35 years on each count, served concurrently.
- Trial court found Houston indigent, appointed counsel, and entered a written judgment assessing $570 in court costs and ordering Houston to reimburse Denton County for compensation paid to appointed counsel.
- The original clerk’s record did not contain a bill of costs. After Houston filed his appellate brief, the State obtained and filed a supplemental clerk’s record containing a certified bill of costs dated 3/22/2013 showing total costs of $798.80 (balance $796.16).
- Houston challenged (1) the sufficiency of the evidence to support the $570 court-costs assessment and (2) the requirement that he reimburse county-paid appointed counsel.
- The State argued the supplemental certified bill of costs supports the court’s assessment and that the judgment could be modified to reflect higher costs; the State conceded Houston should not be required to repay appointed-attorney compensation.
Issues
| Issue | Houston’s Argument | State’s Argument | Held |
|---|---|---|---|
| Whether appellate court may consider a bill of costs filed in a supplemental clerk’s record after appeal to support a trial court’s prior assessment of a specific dollar amount of court costs | No bill of costs was before the trial court when it entered judgment; record silent as to correctness of $570 | The certified bill of costs in the supplemental record satisfies statutory requirements and supports the $570 assessment (and shows higher actual costs) | Court may consider the supplemental certified bill of costs; overruled Houston’s challenge to sufficiency regarding $570 |
| Whether judgment may require Houston to reimburse Denton County for compensation paid to appointed counsel | Houston argued he was indigent and should not be ordered to reimburse appointed counsel absent a later finding of ability to pay | State conceded Houston should not be ordered to reimburse appointed counsel given indigency finding and lack of subsequent ability-to-pay finding | Court sustained Houston’s challenge and modified the judgment to delete the reimbursement provision |
Key Cases Cited
- Armstrong v. State, 340 S.W.3d 759 (Tex. Crim. App. 2011) (court costs reflected in a certified bill of costs need not be orally pronounced or incorporated into the judgment to be effective)
- Weir v. State, 278 S.W.3d 364 (Tex. Crim. App. 2009) (distinguishing costs from sentence; certified bills of costs can be effective without oral pronouncement)
- Pfeiffer v. State, 363 S.W.3d 594 (Tex. Crim. App. 2012) (procedural guidance on when courts may address state’s cross-points and related cost issues)
- Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010) (if trial court finds defendant indigent and makes no later ability-to-pay finding, there is no factual basis for ordering repayment of appointed-attorney fees)