Manley Dewayne Johnson v. State

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Manley DeWayne JOHNSON, Appellant v. The STATE of Texas, Appellee.

No. 14-11-00693-CR

Court of Appeals of Texas, Houston (14th Dist.)

Oct. 16, 2012

Rehearing and En Banc Overruled Jan. 17, 2013

423 S.W.3d 513

him.

Saunders v. State, 913 S.W.2d 564, 571 (Tex.Crim.App.1995).

Here, appellant‘s conviction for aggravated assault carried a punishment of 15 years’ imprisonment, whereas the maximum punishment for a conviction for assault by threat would have been a $500 fine. Tex. Penal Code §§ 12.23, 22.01(a)(2), (c). Thus, appellant suffered harm. See

Benge v. State, 94 S.W.3d 31, 37 (Tex.App.-Houston [14th Dist.] 2002, pet. ref‘d) (holding appellant suffered sufficient harm for reversal when appellant was sentenced to one year‘s confinement for deadly conduct, but the maximum penalty for reckless driving would have been confinement for 30 days and a $200 fine).

Appellant was also harmed because the jury was not permitted to fulfill its role as factfinder to resolve the factual disputes regarding whether appellant used or exhibited a knife when he threatened Peggy. Rather, the jury was left with the sole option of either convicting appellant of aggravated assault or acquitting him. See, e.g.,

Beck v. Alabama, 447 U.S. 625, 634, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980) (noting that a jury, believing defendant to have committed some crime, but given only the option to convict him of a greater offense, may choose to find a defendant guilty of the greater offense, rather than to acquit him altogether, even though the jury may have a reasonable doubt defendant really committed the greater offense);

Saunders, 913 S.W.2d at 572 (noting that “[i]t is at least arguable that a jury that believed the defendant committed an uncharged lesser included offense, but unwilling to acquit him of all wrongdoing, and therefore inclined to compromise, would opt for a lesser included offense that was submitted rather than convict him of the greater offense“).

We cannot say with confidence that the error in the charge did not cause some harm to appellant. The statutory standard for reviewing error in the charge requires us to set aside the verdict and remand the case for a new trial. See

Ovalle v. State, 18 S.W.3d 774, 788 (Tex. Crim.App.2000). We sustain appellant‘s second issue and thus do not reach his first and third issues.

The judgment of guilt is reversed, and the case is remanded to the district court for a new trial.

Jani J. Maselli, Houston, for Appellant.

Bridget Holloway, Houston, for The State of Texas.

Panel consists of Justices FROST, CHRISTOPHER, and JAMISON.

OPINION

MARTHA HILL JAMISON, Justice.

This is an appeal about court costs. Appellant Manley DeWayne Johnson pleaded guilty to aggravated robbery with a deadly weapon, and the trial court sentenced him to seven years in prison. In a single issue on appeal, appellant contends that there is insufficient evidence in the record to support the court‘s ordering him to pay a particular amount in court costs. We reform the trial court‘s judgment to delete the specific amount of costs, and we affirm the judgment as so modified.

Discussion

In its judgment of conviction, the trial court ordered appellant to pay $234 in court costs. The original clerk‘s record filed with this court did not contain a bill of costs. On March 1, 2012, in response to appellant‘s motion, we ordered the district clerk to supplement the record with a bill of costs or, in the alternative, provide a certified statement that no such bill exists in the case file. The clerk‘s office filed an affidavit in which the affiant averred that the record in this case does not include a bill of costs.¹ As stated, appellant contends on appeal that there was insufficient evidence to support the court costs he was ordered to pay in the judgment.

Under article 103.001 of the Texas Code of Criminal Procedure, “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. art. 103.001. Costs so charged need not be included in the trial court‘s judgment to be effective.

Armstrong v. State, 340 S.W.3d 759, 766-67 (Tex.Crim.App.2011). Indeed, the obligation of a convicted person to pay court costs is established by statute, not by court order.

Armstrong v. State, 320 S.W.3d 479, 481 (Tex.App.-Amarillo 2010), rev‘d on other grounds, 340 S.W.3d 759. However, the Code of Criminal Procedure also mandates that judgments of conviction assess costs against the defendant. Tex.Code Crim. Proc. art. 42.16. A claim of insufficient evidence to support court costs is reviewable on direct appeal in a criminal case. See

Armstrong, 340 S.W.3d at 767.²

It is undisputed that the record in the trial court at the time this appeal was filed did not contain any evidence supporting the assessment of $234 in court costs.³ The trial court did not err in ordering appellant to pay costs, as such is mandated by the Code of Criminal Procedure. Tex.Code Crim. Proc. art. 42.16. But the court did err in entering a specific dollar amount without any support in the record for that dollar amount. See

Armstrong, 340 S.W.3d at 767 (remanding for a determination of whether the record sufficiently supported an award of attorney‘s fees as court costs);

Wolfe v. State, 377 S.W.3d 141, 145-46 (Tex.App.-Amarillo 2012, no pet. h.) (modifying judgment to delete finding on court costs for which sufficient evidence was not presented but affirming portion of court costs for which sufficient evidence was provided).

The State argues that appellant‘s complaint is not ripe because, under article 103.001, he does not have to pay the costs until a bill is ready. Tex.Code Crim. Proc. art. 103.001. The ripeness doctrine protects against 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) (quoting

Abbott Labs. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), overruled on other grounds by

Califano v. Sanders, 430 U.S. 99, 104-05, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)). In determining whether an issue is ripe for adjudication, we must “evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.”

Id. (quoting

Abbott Labs., 387 U.S. at 149). Here, the trial court ordered appellant in its judgment to pay $234 in court costs. While the judgment appears in conflict with article 103.001 (stating such fees need not be paid until a bill of costs is ready), the judgment was certainly formalized and could be acted upon in an attempt to collect the specified amount. See Tex. Gov‘t Code § 501.014(e) (requiring Texas Department of Criminal Justice to withdraw from an inmate‘s account amounts ordered by a court as payment for court costs). Accordingly, appellant‘s issue is ripe.

The State further suggests that the proper remedy for appellant under these circumstances would be to wait for the production of a bill of costs and then file a motion seeking correction of any errors in the assessment of costs pursuant to article 103.008 of the Code of Criminal Procedure. Tex.Code Crim. Proc. art. 103.008. While that article provides a procedure for correcting errors in costs, it does not explicitly or implicitly limit an appellant‘s ability to challenge the sufficiency of the evidence to support a part of the court‘s judgment. Id. Indeed, the sufficiency of the evidence to support assessments of costs contained within judgments may be directly appealed without the necessity of having preserved the issue below. See

Mayer v. State, 309 S.W.3d 552, 555 (Tex.Crim.App.2010) (holding that a claim regarding sufficiency of the evidence to support a judgment, even the assessment of attorney‘s fees as costs, need not be preserved and is not waived by the failure to do so).

Lastly, the State relies upon the general presumption of regularity in judgments. The presumption of regularity is a judicial construct that requires a reviewing court, absent evidence of impropriety, to indulge every presumption in favor of the regularity of the proceedings and documents in the lower court.

Light v. State, 15 S.W.3d 104, 107 (Tex.Crim.App.2000). The presumption of regularity created by recitals in a judgment can be overcome only when the record otherwise affirmatively reflects that error occurred. E.g.,

Breazeale v. State, 683 S.W.2d 446, 450 (Tex.Crim.App.1984). Here, appellant has challenged the sufficiency of the evidence to support the assessment of costs in the trial court‘s judgment. The clerk‘s record as originally filed did not include a bill of costs supporting the trial court‘s finding on costs. Appellant therefore filed a motion in this court seeking supplementation, and we responded by ordering the district clerk to supplement the record with a bill of costs. The clerk‘s office responded by affidavit explaining that no bill of costs exists in this case. In the face of a sufficiency challenge, an order to supplement the record, and a complete lack of evidence supporting the trial court‘s assessment of costs, we will not presume the assessment of costs was accurate. See

Armstrong, 340 S.W.3d at 767 (remanding for consideration of sufficiency of the evidence to support costs assessment); cf.

Ford v. State, 848 S.W.2d 776, 777 (Tex. App.-Houston [14th Dist.] 1993, no pet.) (holding that absent a complete record, there was nothing to rebut a presumption of regularity).

Because there is no evidence in the record to support the trial court‘s assessment of a specific dollar amount as court costs, we reform the trial court‘s judgment to delete the specific amount of costs. See

Wolfe, 377 S.W.3d at 146. As so modified, we affirm the judgment.⁴

Notes

1

After oral argument in this case, the clerk‘s office filed a supplemental record containing what appears to be, and is identified as, a computer screen printout from the Harris County Justice Information Management System (JIMS). It shows court costs in appellant‘s case amounting to $234. The original printed document is clearly not signed as required of a bill of costs by article 103.001 of the Texas Code of Criminal Procedure, although a file stamp is signed indicating it is a true copy of the original printed document. Tex.Code Crim. Proc. art. 103.001. Appellant has objected to this supplemental record as untimely and as not constituting an actual bill of costs, it being merely an unsigned computer screen printout. Appellant further points out that the clerk has not retracted the earlier representation that no actual bill of costs exists in the record. In response, the State does not argue that the supplemental record contains an actual bill of costs. Regardless, there is no indication that this printout was ever brought to the attention of the trial judge. Cf.

Chambers v. State, 149 Tex. Crim. 400, 194 S.W.2d 774, 775 (1946) (holding that appellate court would not consider ex parte documents that were not filed in the trial court);

Lamb v. State, 931 S.W.2d 611, 613 (Tex.App.-Amarillo 1996, pet. ref‘d) (holding items that had been tendered after judgment was rendered, and were neither filed nor offered as proof in court below, would not be considered on appeal).

2

In Armstrong, the Court of Criminal Appeals dealt primarily with a question regarding the sufficiency of the evidence to support the court costs attributable to attorney‘s fees for appointed counsel which were included in a bill of costs.

340 S.W.3d at 761-62, 767. The court emphasized that under the circumstances, the attorney‘s fees should be treated as court costs.

Id. at 767.

3

See supra note 1.

4

In order to dispose of the issues presented in this case, we need not, and in fact should not, attempt to predict what might happen if an actual bill of costs is subsequently produced. See, e.g.,

Pfeiffer v. State, 363 S.W.3d 594, 601 (Tex.Crim.App.2012) (pointing out that courts of appeals are without authority to issue advisory opinions);

Garrett v. State, 749 S.W.2d 784, 803-04 (Tex. Crim.App.1986) (holding court of appeals erred in deciding issue that could arise in future prosecution of appellant), overruled on other grounds by

Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997). As discussed in note 1 above, a supplemental record was filed after oral argument containing a computer screen printout, but neither side contends that this printout constitutes an actual bill of costs, and there is no indication that this printout was ever considered by the trial court.

Case Details

Case Name: Manley Dewayne Johnson v. State

Court Name: Court of Appeals of Texas

Date Published: Oct 16, 2012

Citation: 389 S.W.3d 513

Docket Number: 14-11-00693-CR

Court Abbreviation: Tex. App.