Perez, Eduardo
424 S.W.3d 81
Tex. Crim. App.
2014
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Eduardo PEREZ, Appellant v. The STATE of Texas

No. PD-0498-13

Court of Criminal Appeals of Texas

March 12, 2014

81

matter of state habeas practice,18 and this case does not present a reason for us to deviate from that practice.

I would deny the application for the writ of habeas corpus.

Franklin Gordon Bynum, Harris County Public Defender‘s Office, Houston, TX, for Appellant.

Jessica A. Caird, Assistant District Attorney, Houston, Lisa C. McMinn, State‘s Attorney, Austin, TX, for the State of Texas.

OPINION

JOHNSON, J., delivered the opinion of the Court in which KELLER, P.J., and MEYERS, WOMACK, KEASLER, HERVEY, COCHRAN, and ALCALÁ, JJ., joined.

As stated by the court of appeals, “This is an appeal about court costs.” (not designated for publication). The state points out that the facts regarding the underlying offense are not relevant to this appeal about court costs, but notes that the clerk‘s record contains information relevant to the assessment of court costs.

I. BACKGROUND

In June of 2008, appellant plead guilty to burglary of a habitation and, pursuant to a plea agreement, was placed on three years’ deferred-adjudication community supervision and fined $300. The Order of Deferred Adjudication included a designation of court costs of $203. Appellant did not appeal. In October of 2008, the state filed a motion to adjudicate appellant‘s guilt.

In 2012, the trial court adjudicated appellant‘s guilt and assessed punishment at two years’ incarceration and a $300 fine. The judgment adjudicating guilt also specifically included a designation of court costs of $240. Accompanying that judgment in the clerk‘s record on appeal are three pages that purport to be a “cost bill assessment” and contain specific amounts for several kinds of costs. Those pages also contain a stamp and the signature of a deputy district clerk and are dated “11/7/12,” which is several weeks after the September 20, 2012 date on which the trial judge signed and entered the judgment adjudicating guilt.

II. COURT OF APPEALS

On direct appeal, appellant complained that the judgment reflected court costs that were not substantiated by the record and asserted that the list of court costs was not a proper “cost bill” because it was generated well after the judgment and afforded him no opportunity to object. Appellant argued that this listing of court costs was made up of “screen shots” from the county‘s proprietary information-management system and contained no details regarding when it was created or that the trial court saw the list before signing the judgment. He contended that this newly created document was not a bill of costs as contemplated, and required, by law and failed to fulfill due-process requirements. He also pointed out that he was never given the opportunity to challenge the actual costs or their constitutionality because no bill of costs was produced at the time of sentencing. Appellant asserted that due process is thwarted if the clerk can simply create a list of court costs after the conviction.

Because there was no evidence in that record that the computer screen printout was presented to the trial judge before the specific dollar amount was included in the judgment, the court of appeals concluded that there was no evidence in the record to support the specific dollar amount in court costs. (not designated for publication). It also held that, while the trial court did not err in ordering appellant to pay costs, the trial court erred in entering a specific dollar amount of costs in the judgment without any record support. Accordingly, the court of appeals reformed the trial court‘s judgment, deleted the specific amount of costs assessed, and affirmed the judgment as modified.

III. GROUNDS FOR REVIEW

We granted the state‘s petition for discretionary review on four grounds: the court of appeals erred in deleting 1) the specific amount of court costs on the judgment of conviction based upon the lack of a certified bill of costs in the record; 2) court costs on the written judgment when appellant failed to preserve his claim for appellate review, the issue is not ripe for review, and by implicitly overruling this Court[‘s] opinion in which held that he must raise issues about the sufficiency of the evidence in an appeal from the order deferring guilt; 3) the court costs on the written judgment when the district clerk‘s office included an itemized list of costs in the appellate record; 4) the court costs on the written judgment based upon the lack of a certified bill of costs in the record when the evidence was otherwise sufficient to sustain the assessed court costs.

IV. ARGUMENT

The state argues that nothing in Texas statutes or the opinions of the Court of Criminal Appeals required the district clerk to attach a certified bill of costs to the judgment in order to support the amount or to show that the trial judge had access to his own court records when determining and assessing the amount on a judgment. It adds that, “even were this Court to hold that the mandatory assessment of court costs requires separate evidentiary support in the form of available documentation, this record contained sufficient documentary evidence to support the costs assessed.” The state also contends that appellant waived his sufficiency claim to at least $203 in court costs when he did not raise it in an appeal from the order deferring guilt. It also maintains that appellant‘s claims regarding the mandatorily assessed costs were not preserved in the trial court and were not ripe for review on appeal because no attempt to collect them had yet been made.

Appellant asserts that “[w]ithout a cost bill, there is insufficient evidence to support court costs” and that “[t]he court costs should be struck because there is no evidence in the record to support them.” He maintains that “[t]here is no evidence the trial court had the cost bill before the costs were assessed on the judgment[,]” and notes that “the transcript from the hearing shows that the trial court never even mentioned owing court costs.” He argues that “[t]he rules of appellate procedure do not allow any objections to a particular cost to be made in the appellate court” and suggests that “with no cost bill in the trial court, the only proper challenge is through the sufficiency of the evidence.”

The state argues the first, third, and fourth grounds together. It asks this Court to sustain those grounds and reverse the judgment of the court of appeals and reinstate the trial court‘s judgment in its entirety “because the record supports the costs assessed, and the trial court did not err by failing to attach a bill of costs to the judgment.” It specifically contends that “the documentary evidence in the clerk‘s record supported each mandatory fee and costs assessed because: (1) the itemized cost bill provided sufficient evidence to support all the costs and fees; and (2) even had it been insufficient the additional documents in the Court‘s file supported them.” (State‘s Brief on Discretionary Review at 11.)

The state points to the laws regarding court costs, which state that a convicted person has a statutory obligation to pay court costs. See TEX.CODE CRIM. PROC. art. 42.15 (when a fine is assessed the judgment shall be that the defendant pay the amount of the fine and all costs to the state) and art. 42.16 (judgments imposing punishments other than fines shall specify the costs against the defendant and order the collection of those costs).1 The state also notes that Articles 103.001 through 103.012 govern the collection and disposition of costs. It also asserts that a defendant must pay the statutorily assessed costs regardless of indigence. TEX. GOV‘T CODE § 102.021 (a convicted defendant “shall pay” the specified associated court costs).

Appellant argues that a bill of costs is a prerequisite to a trial court‘s authority to order that court costs be paid and that those court costs were not memorialized at the sentencing hearing. He also asserts, “Not only is this information necessary-it is constitutionally required.” (Appellant‘s Brief on Petition for Discretionary Review at 13.) He maintains that the due-course-of-law provision of the Texas Constitution and the due-process clause of the Federal Constitution preclude the imposition of court costs without providing advance notice of those costs and that due process was not afforded to him because he was not notified of the court costs and thus was never given the opportunity to contest those costs.

The state‘s second ground for review asserts that the court of appeals erred by considering an unpreserved claim that challenged the accuracy of the amount of assessed costs. The state also asserts that the issue of the amount of court costs assessed was not ripe for review on appeal from the judgment without appellant making some attempt in the trial court to correct them. It insists that the judgment‘s assessment does not make the costs payable, and therefore, appeal from that judgment would not make the issue of the amount viable. It suggests that, to protest the amount assessed, appellant must therefore pursue some other vehicle that would provide the trial court with an opportunity to correct any inaccuracy. The state also asserts that appellant was required to make any evidentiary challenges to the order deferring guilt with a timely appeal from that order, and since he did not do so, he cannot tardily raise them for the first time in an appeal from the judgment adjudicating him. It argues that directs that Article 44.01(j) reflects a legislative intent that “was not to permit two reviews to the legality of a deferred adjudication order, namely when first imposed and again upon adjudication.” (State‘s Brief on Discretionary Review at 45.).

Appellant asserts that does not apply and that the court of appeals correctly reasoned that he did have the right to appeal the sufficiency of the court costs under Article 42.12 § 5(b). He also suggests that this is especially true in light of the fact that he was not granted the right to appeal from the order granting deferred adjudication.

V. ANALYSIS

In , we held that “a claim with respect to the basis of court costs need not be preserved at trial to be raised for the first time on appeal,” that “a record on appeal can be supplemented with a bill of costs,” and the fact that most court costs are mandated by statute dispenses with the need for an ordinary sufficiency review. Nevertheless, we address the state‘s preservation claims and consider, in the cir-cumstances before us, whether appellant needed to preserve error.

The record here reflects that the Order of Deferred Adjudication was signed and entered on June 20, 2008, and included the assessment of $203 for court costs. The state‘s Motion to Adjudicate Guilt included an allegation that appellant violated the terms and conditions of community supervision by failing to pay court costs. Appellant signed a Stipulation of Evidence that included a paragraph in which he judicially confessed that he had violated the terms and conditions and that the allegations in the state‘s motion were true. Before the court, appellant answered “Yes” when asked if it was true that he had violated the terms and conditions. The judgment adjudicating guilt reflects that appellant was sentenced to two years’ incarceration, a $300 fine, and court costs of $240.

“A timely notice of appeal is necessary to invoke a court of appeals’ jurisdiction.” . Appellant failed to file notice of appeal within thirty days of being placed on deferred-adjudication community supervision, thus this appeal raising court-cost complaints is not timely with respect to the court costs that were assessed in the Order of Deferred Adjudication.

In , we held that a defendant, whose community supervision had been revoked, forfeited his challenge to the court-appointed attorney fees as court costs by failing to bring such a claim in a direct appeal from the order originally imposing community supervision. . We pointed out that Wiley “could readily have raised this sufficiency claim in a direct appeal from the initial judgment imposing community supervision” and failing to do so “constituted a procedural default under Manuel.” We noted that had recognized that “a defendant placed on deferred adjudication community supervision may raise issues relating to the original plea proceeding, such as evidentiary sufficiency, only in appeals taken when deferred adjudication community supervision is first imposed.” at 319, n. 33.

We also observe that appellant specifically waived his right to appeal at that time. The record reflects that, when appellant plead guilty and was placed on deferred-adjudication community supervision, he waived his right to appeal. Specifically, appellant signed a Waiver of Constitutional Rights, Agreement to Stipulate, and Judicial Confession, which included a paragraph in which he “waive[d] any right of appeal which [he] may have [had],” and the trial court accepted the foregoing plea agreement between him and the prosecutor. Appellant also signed an acknowledgment of receipt of a copy of the Trial Court‘s Certification of Defendant‘s Right of Appeal, which denoted that this “is a plea-bargain case, and the defendant has NO right of appeal.” These were all signed on June 20, 2008, the same date that the Order of Deferred Adjudication was signed and entered. That Order included the challenged assessment of court costs of $203. Thus appellant, at that time of the original order, specifically waived his right to appeal the imposition of those court costs. As we held in , the time to raise such a complaint via appeal is when deferred-adjudication community supervision was first imposed. “[A]n appellant will not be permitted to raise on appeal from the revocation of his community supervision any claim that he could have brought on an appeal from the original imposition of that community supervision.” , citing . Appellant‘s waiver of his right to appeal does not excuse his failure to appeal the assessment of court costs at the time of the original imposition of community supervision.

The court of appeals acknowledged holding, but noted that, after we decided , an amendment to Article 42.12 § 5(b) permitted appellate review of the trial court‘s determination to proceed with an adjudication of guilt. It determined that appellant was “appealing the judgment adjudicating his guilt” rather than “challenging the assessment of costs in the original deferred adjudication order[,]” and was “challenging the evidence to support the specific dollar amount listed in the judgment adjudicating his guilt.” . The record does not support this conclusion.2

Court costs of $203 were included in the Order of Deferred Adjudication. Thus appellant could have appealed the imposition of such costs or the specific amount of those costs. Any and all complaints about the imposition of the court costs could and should have been made in a timely appeal of the deferred-adjudication order. “Failing to do so, we hold, constituted a procedural default under Manuel.” . Appellant did timely appeal the $240 court costs, which were noted in the judgment adjudicating guilt and included the $203 that had been initially assessed in the deferred-adjudication order. Since appellant failed to challenge the $203 assessment of costs in a timely appeal of that deferred adjudication order and thus forfeited any appellate complaint as to that sum, the instant, timely, appeal properly challenges only the $37 of court costs that were added to the initial $203. Thus the court of appeals had jurisdiction to address only $37 of appellant‘s challenge to the assessment of $240 in court costs.

VI. CONCLUSION

A defendant must raise issues relating to the original plea proceeding, including evidentiary sufficiency, only in a timely appeal taken when deferred-adjudication community supervision is first imposed. . Court costs of $203 were included in appellant‘s deferred-adjudication order, and appellant failed to appeal those costs at that time. Accordingly, we sustain the state‘s ground 2, in part; we reverse the judgment of the court of appeals and dismiss appellant‘s appeal with respect to $203 of the $240 of court costs.

The court of appeals does have jurisdiction to consider the appeal of the remaining $37 of the assessed court costs. In , we held that “a record on appeal can be supplemented with a bill of costs,” and the fact that most court costs are mandated by statute dispenses with the need for an ordinary sufficiency review. Because the court of appeals did not have the benefit of when it addressed appellant‘s claims challenging the court-costs assessment, we dismiss the state‘s grounds one, three, and four and remand to the court of appeals to reconsider appellant‘s claims regarding the assessment of court costs in light of .

ALCALÁ, J., filed a concurring opinion in which KELLER, P.J., and HERVEY, and COCHRAN, JJ., joined.

PRICE, J., concurred.

ALCALÁ, J., filed a concurring opinion in which KELLER, P.J., and HERVEY and COCHRAN, JJ., joined.

I join the majority opinion. I write separately to highlight the general concept that is applicable here that sitting on your rights or waiving them may cause you to lose them. I agree with the majority opinion that, by sitting on his rights in failing to appeal or otherwise challenge the imposition of court costs in the amount of $203 at or near the time that he was placed on deferred adjudication, Eduardo Perez, appellant, is not permitted to now assert that challenge through the criminal courts after the revocation of his deferred adjudication. Although appellant will likely be unable to challenge the $203 in court costs because of his legal slumber, there are at least five avenues for an alert defendant who believes that the court costs imposed against him are erroneous or should not be collected.

First, this Court recently held that an appellant may challenge the imposition of court costs on direct appeal. . This challenge may be made even when an appellant has failed to preserve his complaint at trial. See Appellant, however, slept on this right by not appealing from the judgment imposing the $203 in court costs.

Second, even if he fails to challenge the assessment of costs on direct appeal, a defendant has one year after the final disposition of the case in which court costs were imposed to seek to correct any error in the costs. See TEX.CODE CRIM. PROC. art. 103.008. Article 103.008 states,

On the filing of a motion by a defendant not later than one year after the date of the final disposition of a case in which costs were imposed, the court in which the case is pending or was last pending shall correct any error in the costs.

Id. A defendant who did not appeal a sentence, therefore, could still challenge any error in the costs by filing a motion in the trial court within a year of the date of final disposition of the case in which costs were assessed against him. See id.; . Alternatively, if his case is on appeal or was appealed, then he could file a motion in the court of appeals or this Court within a year of the final disposition of the case in which those costs were assessed. See TEX.CODE CRIM. PROC. art. 103.008. Appellant, however, is now complaining of court costs that were imposed against him almost six years ago, well past the one-year period when he could have challenged them under article 103.008. See id. Because appellant did not challenge the imposition of the costs on direct appeal or within a year of the trial court‘s judgment assessing the court costs against him, his decision to slumber on his right has forfeited that challenge.

Third, an appellant who is assessed court costs after expiration of the period of time when he could have filed a direct appeal or a challenge under article 103.008 could obtain relief through a petition for mandamus. (treating habeas writ as writ for mandamus when record showed Daniel had no adequate remedy by appeal because the bill of costs was sent to him years after the judgment was rendered and the record showed a clear entitlement to relief). Unlike in , however, appellant would not be entitled to this possible remedy because he had an adequate remedy by appeal and decided not to appeal. Compare id. & id. n. 16, with (challenge on appeal to attorney‘s fees prepared “the following day” after Armstrong‘s guilt was adjudicated and he was sentenced). This avenue, however, may be available for those defendants who do not obtain a bill of costs until after the time for filing a direct appeal or a challenge through article 103.008 has expired.1

Fourth, an appellant could lawfully decide not to pay court costs until a written bill is “produced” or “ready to be produced.” TEX.CODE CRIM. PROC. art. 103.001. Article 103.001 states,

Costs Payable

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.

Id. I note, however, that this article is silent with respect to the meaning of “ready to be produced,” and it is difficult to imagine how the amount due could have been determined without the written bill being, at a minimum, “ready to be produced.” See id. Nonetheless, the language of this section clearly does not require a person to pay a cost until, at a minimum, the written bill is ready to be produced.

In his brief in support of his petition for discretionary review, appellant suggests that the trial court could not properly revoke his community supervision for failure to pay court costs because those costs would not be payable until the written bill had been produced or was ready to be produced. See id. But appellant mispresents the record before us. The record shows that the State filed a motion to adjudicate that alleged violations of appellant‘s community supervision and to which appellant pleaded true, including (1) failure to report to his community supervision officer, (2) failure to present verification of employment, (3) failure to notify his community supervision officer of his change of address, (4) failure to pay his supervision fees, (5) failure to pay his fines and court costs, (6) failure to pay a lab processing fee, (7) failure to obtain and pay for an offender identification card, (8) failure to pay a fee to Crime Stoppers, (9) failure to submit to an alcohol and drug treatment program, (10) failure to submit to educational skill level assessments, (11) failure to participate in parenting classes, and (12) failure to participate in English-as-a-second-language courses. The trial court‘s order on the motion to adjudicate guilt notes that “[w]hile on community supervision, Defendant violated the terms and conditions of community supervision as set out in the State‘s [motion to adjudicate guilt] as follows: Failing To Report.” Appellant‘s deferred adjudication, therefore, was not revoked for his failure to pay the bill of costs. Because appellant was not revoked for failure to pay the bill of costs, his argument that his bill of costs was not payable is immaterial to his challenge to the trial court‘s revocation decision.

I note here that, in about twenty-five years of my experience in criminal law, I have yet to see a case where a defendant‘s community supervision was revoked solely for failure to pay court costs. Furthermore, the Legislature has provided stricter evidentiary requirements for the revocation of community supervision based only on the failure to pay court costs. The Texas Code of Criminal Procedure states, in a community supervision revocation hearing at which it is alleged only that the defendant violated the conditions of community supervision by failing to pay compensation paid to appointed counsel, community supervision fees, or court costs, the state must prove by a preponderance of the evidence that the defendant was able to pay and did not pay as ordered by the judge. TEX.CODE CRIM. PROC. art 42.12, § 21(c). In the unlikely scenario where the State seeks to revoke a community supervision solely for the failure to pay court costs, it would appear that it would have the evidentiary burden to show (1) that the costs were payable in that the written bill had been produced or was ready to be produced, and (2) that the defendant had the ability to pay and did not pay as ordered. See id.; TEX.CODE CRIM. PROC. art. 103.001. Because his community supervision was revoked for grounds other than his court costs, appellant has no valid complaint that his failure to pay court costs as a condition of his community supervision was because they were not payable.

Fifth, when the State seeks to collect money from an inmate trust account, a defendant may have a civil remedy. . Proceedings under Government Code section 501.014(e) to recover court fees and costs assessed against inmates are civil in nature and are not part of the underlying criminal case. Harrell did not challenge the amount of fees and costs originally assessed in his criminal cases or the authority of the trial court to assess them. at 319. Rather, Harrell claimed that his procedural due-process rights to notice and an opportunity to be heard were violated by the withdrawal of money from his inmate trust account. The Texas Supreme Court held that Harrell received all that due process requires, namely, a post-withdrawal notice and hearing. at 321 (construing TEX. GOV‘T CODE § 501.014(e)). Nonetheless, this case does show that an alert defendant may challenge the State‘s efforts to collect from an inmate trust account on the grounds that he had not received due process. A defendant could not slumber on his rights in pursuing a civil remedy, however, because that would be subject to the applicable limitations period.

All in all, it appears that there are at least five possible avenues for challenging the imposition or collection of costs for those who do not slumber on their rights. It also appears, at least to me, that a trial court can easily prevent almost all due-process litigation concerning a bill of costs by simply providing the bill to a defendant at the time he is sentenced (notice), and giving him time to review it and voice any concerns (an opportunity to be heard). With these comments, I join the majority opinion.

John Kent MATHIS, Appellant v. The STATE of Texas

No. PD-0536-13.

Court of Criminal Appeals of Texas.

March 12, 2014.

Notes

1
1. Unless otherwise noted, all references to “Article” and “Section” are to the Texas Code of Criminal Procedure. 1. This Court has held that a defendant may not challenge the imposition of costs through a post-conviction writ of habeas corpus. ; (habeas writ against bill of costs “in no way implicates the fact or duration of his confinement pursuant to his conviction“).
2
2. “In a single issue on appeal, appellant contends that there is insufficient evidence in the record to support the court costs assessed against him in the judgment.” .
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