Roderick D. Thomas v. StateRoderick D. Thomas v. State
“categorically removed” from the scope of the Sixth Amendment right to counsel because it involved only a “collateral consequence” of a conviction, rather than a component of the criminal sentence?
Id. By first rejecting a categorical distinction between direct and collateral consequences in relation to the right to counsel, the court “resolved the threshold question before [it] by breaching the previously chink-free wall between direct and collateral consequences” before then applying the well-settled law of Strickland v. Virginia. Id. at 1110. “If that does not count as ‘break[ing] new ground’ or ‘impos[ing] a new obligation, we are hard pressed to know what would.” Id. at 1110-1111. Because ”Padilla‘s holding that the failure to advise about a non-criminal consequence could violate the Sixth Amendment would not have been—in fact, was not—‘apparent to all reasonable jurists‘” prior to Padilla, the Court concluded that Padilla announced a “new rule.” Id. at 1111. As such, “defendants whose convictions became final prior to Padilla therefore cannot benefit from its holding.” Id. at 1113.
Here, appellant was convicted in 1998—twelve years before Padilla was decided. Because Padilla announced a “new rule,” it is not retroactive and appellant may not now avail himself of the decision on collateral review.
Eric Kugler, Assistant District Attorney of Harris County, Houston, TX, for the State.
OPINION
JANE BLAND, Justice.
A jury found Roderick D. Thomas guilty of aggravated robbery and assessed punishment at ten years’ confinement. The written judgment ordered that Thomas pay $274 in court costs. On appeal, Thomas contends that insufficient evidence supports the trial court‘s assessment of court costs in the judgment absent a bill of costs. Thomas requested a bill of costs in his request for the clerk‘s record, but none was produced. We ordered the trial court clerk to provide a bill of costs. The trial court clerk has supplemented the record with a bill of costs. We hold that sufficient evidence supports the costs recited in the original judgment and therefore affirm.
Discussion
I. Supplementation of record with costs assessment
Thomas contends that the $274 award of court costs in the written judgment is not supported by sufficient evidence. In particular, Thomas contends that he is unable to determine if attorney‘s fees were incorrectly included as part of the $274 award of costs in the trial court‘s judgment. See
Accordingly, we ordered the trial court “to prepare, certify, and file a supplemental record containing a bill of costs,” and if no bill of costs existed, we ordered “the trial court clerk or an officer of the court . . . to prepare a bill of costs for inclusion in the supplemental record.” In response, the trial court provided a supplemental record including a document entitled “Cost Bill Assessment,” itemizing costs imposed on Thomas. This assessment lists items of costs totaling $329. The supplemental record also contains a copy of the original judgment with the $274 assessment of court costs marked out and replaced with a $329 assessment. Thomas filed a written objection to the supplemental record and objected to the supplemental record in a reply brief.
First, Thomas objects that that the trial court could not modify the judgment as it purported to do in the supplemental record. The trial court may correct clerical, but not judicial, omissions or errors in a judgment after the trial court loses its plenary jurisdiction through a judgment nunc pro tunc. State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994) (en banc). But a trial court lacks jurisdiction to enter a judgment nunc pro tunc after the appellate record for the case is filed. See Meineke v. State, 171 S.W.3d 551, 558 (Tex. App.—Houston [14th Dist.] 2005, pet. ref‘d). Because the trial court lacked jurisdiction to enter judgment nunc pro tunc to correct its judgment after the appellate record in this case was filed, we disregard the modified judgment contained in the supplemental clerk‘s record.
Thomas contends that permitting a bill of costs to be produced after the judgment denies him due process in that he may not object to any costs assessed in the bill of costs. However, Thomas has not been denied an opportunity to challenge the costs listed in the bill of costs. See Cardenas, 2013 WL 460437, at *4. A contemporaneous objection in the trial court is not required to contest costs on direct appeal. See Mayer v. State, 309 S.W.3d 552, 555-56 (Tex. Crim. App. 2010). Thomas therefore was not procedurally prejudiced by his alleged inability to raise his objections in the trial court.
Despite the lack of a written bill of costs, completely apart from the availability of direct appeal, Thomas could also seek correction of an error in costs by moving to correct costs in the trial court. See
Thomas next argues that a bill of costs created after the trial court rendered judgment cannot be considered part of the record on appeal, because it was not properly before the court as evidence when the judgment was rendered, relying on a footnote in Johnson v. State, 389 S.W.3d 513, 513 n. 1 (Tex. App.—Houston [14th Dist.] 2012, no pet. h.), which in turn relies upon Chambers v. State, 149 Tex. Crim. 400, 194 S.W.2d 774, 775 (1946), and Lamb v. State, 931 S.W.2d 611, 613 (Tex. App.—Amarillo 1996, pet. ref‘d). Chambers and Lamb hold that evidence created after the judgment but included in the record may not be considered as evidence to support the judgment on appeal. See Chambers, 194 S.W.2d at 775; Lamb, 931 S.W.2d at 613. Unlike the evidence in Lamb and Chambers, a bill of costs is not itself factual evidence to support the assessment of costs in a factual sufficiency inquiry. Rather, costs assessed in a bill of costs, like those assessed in the judgment, must be supported by the record. See, e.g., Owen, 352 S.W.3d at 547-48 (holding that factual predicate for the assessment of court costs included in a bill of costs must be supported by the record).
Finally, Thomas objects that the “Cost Bill Assessment” provided by the trial court in the supplemental record is not a valid bill of costs under Texas Code of Criminal Procedure article 103.001. Article 103.001 provides that costs are not “payable” until a bill of costs containing “the items of cost, signed by the officer who charged the cost” “is produced or is ready to be produced.”
II. Sufficiency of the evidence
Sufficient evidence must support an assessment of costs in a bill of costs or in a judgment. See Mayer, 309 S.W.3d at 554-56; Owen, 352 S.W.3d at 548 (holding assessment of costs is supported by sufficient evidence when authorized by statute and supported by record). We review the record in the light most favorable to the award in measuring the sufficiency of the evidence to support an assessment of costs. See Mayer, 309 S.W.3d at 557.
The record demonstrations that a jury convicted Thomas of a felony in district court, supporting each of the following costs listed in the costs assessment: “Clerks Fee” of $40;1 “Jury Fee” of $20;2 “Security Fee” of $5;3 “Consolidated Court Costs” of $133;4 “Jury Reimburse
The costs assessment reflects that four other witnesses were summoned, but without a request for witness summons, we cannot confirm whether the fees for the other four witness summons is supported by the record. Still, the sum of the costs supported by the record before us is $309. No sum of money was included to pay for attorney‘s fees. The record generated in the trial court through the entry of judgment demonstrates facts and circumstances sufficient to justify at least $274 of costs as directed by the statutes and rules referenced above. Accordingly, sufficient evidence supports the judgment awarding costs.
We affirm the judgment of the trial court.
JANE BLAND
Justice