                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-13-00465-CR

                                       Randall Dwight HURST,
                                              Appellant

                                                   v.

                                         The STATE of Texas,
                                               Appellee

                   From the 54th Judicial District Court, McLennan County, Texas
                                   Trial Court No. 2012-1949-C1
                           Honorable Ralph T. Strother, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Catherine Stone, Chief Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: May 28, 2014

AFFIRMED

           Hurst was charged by indictment with possession of cocaine with intent to deliver in a

drug-free zone. On May 21, 2013, Hurst entered a plea of guilty to the charge and elected to have

a jury assess punishment. The jury assessed punishment at seventy years confinement in the

Institutional Division of the Texas Department of Criminal Justice and a $5,000.00 fine. We affirm

the trial court’s judgment.
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                                 DIFFERENT DRUG-FREE ZONE

       In his first issue, Hurst argues he entered a plea of guilty to possession with intent to

distribute within 1,000 feet of Tennyson Middle School, but the indictment to which he pled

charged him with possession with intent to distribute within 1,000 feet of Parkdale Elementary

School. Because of the discrepancy, Hurst contends that he pled to an offense for which he was

not charged.

       The State counters that Hurst pled true to the noticed enhancement and made no objection

to the enhancement or the indictment.

A.     Proceedings before the Trial Court

       The indictment, to which Hurst entered a plea of guilty, defined the offense “in, on, or

within 1,000 feet of a school, to wit: Parkdale Elementary School.” The day before trial, the State

filed an amended “Notice of State’s Intention to Use Drug-free Zone for Punishment

Enhancement,” described the offense as “in, on, or within 1,000 feet of a school, to wit: Parkdale

Elementary and/or Tennyson Middle School.”

       During the plea, the trial court acknowledged the apparent confusion between the

allegations contained within the indictment and the charges to which Hurst was entering a plea.

       Court:   And there’s also been a change to the drug-free zone notice. The—in
                Count 1, the drug-free zone originally said . . . it is further presented in
                and to said court that the Defendant committed the above offense in, all
                or within one thousand feet of a school, to wit, Parkdale Elementary
                School. And that “notice” is now been changed. And I believe, you know,
                y’all told me off the record that the Defendant was going to stipulate that
                the school is going to be changed to Tennyson Middle School.
       Defense: Your Honor, I believe technically the way it’s going to happen is the
                State’s going to abandon the allegation that’s actually in the indictment
                and proceed on the allegation in their notice of enhancement that they
                filed yesterday.
       Court: Okay. And which is not in the Court’s file, is that correct?
       State: That’s correct, Your Honor.
       Court: That’s what y’all told me. All right.


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       Defense: Judge, I can provide a copy if the Court wants to see one since the State
                apparently doesn’t have one.

                 ....

       Court:    And to the notice—to the notice of the drug-free zone, how do you wish
                 to plead? Are you stipulating to that?
       Hurst:    Guilty, sir—True.
       Court:    The Tennyson --
       State:    The Tennyson Middle School, yes, Your Honor.
       Court:    I think everybody’s in agreement that that’s the way it happened.

       Hurst then proceeded to waive the reading of the indictment. The trial court again

confirmed the location to which Hurst was entering a plea of true was Tennyson Middle School.

       Court:    All right, Mr. Hurst, the Court having received your pleas and waivers, I
                 find you guilty as charged in the indictment. I find the enhancement
                 allegation to be true. And you’ve stipulated to the drug-zone at the
                 Tennyson Middle School. Is that correct?
       Hurst:    Yes, Your Honor.
       Court:    All right. I find that to be True also.

We note, that although the reporter’s record indicates the State’s notice of enhancement was not

contained within the court’s file, the notification was properly filed on May 20, 2013, and

contained within the clerk’s record in this cause.

       The record clearly shows Hurst entered a guilty plea to the charged offense of possession

with intent to deliver and entered a plea of true with regard to Tennyson Middle School as the

identified drug-free zone. No objection was lodged regarding any error within the indictment. The

trial court painstakingly ensured all parties understood the charges to which Hurst was pleading,

including the location of the drug-free zone. See Williams v. State, 309 S.W.3d 124, 129 (Tex.

App.—Texarkana 2010, pet. ref’d) (holding defendant’s plea of true to enhancement precluded

insufficiency of evidence to support enhancement).




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       Hurst avers the identification of the drug-free zone is an element of the charged offense

and cannot be waived. We must therefore determine whether Hurst could properly waive any

alleged error in the indictment.

B.     Sufficiency of the Indictment

       The general rule is that an indictment must provide the accused with adequate notice of the

charges such that the accused may properly plead acquittal or conviction in order to bar future

prosecution for the same offense. TEX. CODE CRIM. PROC. ANN. art. 21.11 (West 2009); Sanchez

v. State, 928 S.W.2d 255, 259 (Tex. App.—Houston [14th Dist.] 1996, no pet.); see also

Kirkpatrick v. State, 279 S.W.3d 324, 328 (Tex. Crim. App. 2009) (stating test for constitutional

sufficiency of an indictment is, “Can the district court and the defendant determine, from the face

of the indictment, that the indictment intends to charge a felony or other offense for which a district

court has jurisdiction?”) (quoting Teal v. State, 230 S.W.3d 172, 180 (Tex. Crim. App. 2007)).

       In this case, the indictment properly charged Hurst with “did . . . knowingly possess, with

intent to deliver, a controlled substance, namely, cocaine, in an amount of four grams or more but

less than 200 grams . . . .” See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (West 2010).

The indictment tracts the language of the statute and sets forth each of the essential elements of

the offense. Id.; see also State v. Mays, 967 S.W.2d 404, 409 (Tex. Crim. App. 1998) (holding

indictment tracking the language of a statute will generally satisfy constitutional notice

requirements); accord Smith v. State, 309 S.W.3d 10, 14 (Tex. Crim. App. 2010).

       For many of the drug offenses charged in the Texas Health and Safety Code, the

punishment is enhanced if “the offense was committed in, on, or within 1,000 feet of the premises

of a school.” TEX. HEALTH & SAFETY CODE ANN. § 481.134(c)(1) (West Supp. 2014). Here,

Hurst’s charges were enhanced under section 481.134(c). Id.



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       The allegation the offense occurred in a drug-free zone is not part of the substance of the

indictment, but simply provides the accused with notice that the State will attempt to use a specific

conviction for enhancement of punishment. See Young v. State, 14 S.W.3d 748, 750 (Tex. Crim.

App. 2000); see also Brooks v. State, 957 S.W.2d 30, 33–34 (Tex. Crim. App. 1997); Hudson v.

State, 145 S.W.3d 323, 326 (Tex. App.—Fort Worth 2004, pet. ref’d). Because a drug-free zone

finding is necessary to enhance punishment, but is not an element of the offense or a separate

offense, it need not be pled in the indictment. Young, 14 S.W.3d at 750; see Williams v. State, 127

S.W.3d 442, 445 (Tex. App.—Dallas 2004, pet. ref’d).

       We, therefore, conclude the indictment properly charged Hurst with the offense of

possession with intent to deliver a controlled substance. We further conclude the State’s allegation

that the offense occurred within a drug-free zone is an enhancement issue for punishment purposes

and need not be included within the indictment.

       C.      Waiver of Defect in the Indictment

       Hurst contends that because the State failed to put on evidence that the charged drug

possession took place within 1,000 feet of Parkdale Elementary School, the drug-free zone finding

should be stricken from the judgment.

       Article 28.10 of the Texas Code of Criminal Procedure outlines timely amendments to the

State’s charging instruments. TEX. CODE. CRIM. PROC. ANN. art. 28.10 (West 2006). Specifically,

the statute provides:

       (a) After notice to the defendant, a matter of form or substance in an indictment or
           information may be amended at any time before the date the trial on the merits
           commences. On the request of the defendant, the court shall allow the defendant
           not less than 10 days, or a shorter period if requested by the defendant, to
           respond to the amended indictment or information.

       (b) A matter of form or substance in an indictment or information may also be
           amended after the trial on the merits commences if the defendant does not
           object.
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       (c) An indictment or information may not be amended over the defendant’s
           objection as to form or substance if the amended indictment or information
           charges the defendant with an additional or different offense or if the substantial
           rights of the defendant are prejudiced.

Id. Thus, absent an objection from the defendant, the State may amend an indictment either before

or after the trial on the merits commences. Id.; Teal, 230 S.W.3d at 177.

       The drug-free zone enhancement allegation need not be included in the indictment, and the

record establishes the State provided written notice of their intent to proceed with a drug-free zone

enhancement, namely “Tennyson Middle School.” The record also substantiates that Hurst did

not object to the enhancement with the drug-free zone identified as “Tennyson Middle School.”

Accordingly, because Hurst did not raise any alleged defects to the trial court, he has not preserved

error for review. See TEX. CODE CRIM. PROC. ANN. art 28.10; TEX. R. APP. P. 33.1; Teal, 230

S.W.3d at 177. We overrule Hurst’s first issue.

                                          COURT COSTS

       Hurst next argues the trial court erred in assessing court costs in the amount of $394.00.

Hurst contends these costs are penalties and required to be pronounced at sentencing. Further,

Hurst argues because there is conflict between the oral pronouncement and the written judgment,

the oral pronouncement controls. See Johnson v. State, 370 S.W.3d 100, 105 (Tex. App.—Fort

Worth 2012, no pet.) (explaining that trial court’s written document generally controls over oral

pronouncement except for the oral pronouncement of a defendant’s sentence). Accordingly, Hurst

avers the trial court erred in including the costs not pronounced at sentencing in the judgment.

A.     Costs versus Fines

       Court costs are “recoupment of costs of judicial resources expended in connection with the

trial of the case.” Weir v. State, 278 S.W.3d 364, 366 (Tex. Crim. App. 2009). In Weir, the Court

of Criminal Appeals relied on People v. Jones, 861 N.E.2d 967, 975 (2006), for the basic concept


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that a fine is punitive and is imposed as part of a convicted defendant’s sentence. Weir, 278 S.W.3d

at 366 (citing Jones, 861 N.E.2d at 975). To the contrary, a court “cost” is a “collateral

consequence of the defendant’s conviction that is compensatory in nature.” Id. (citing Jones, 861

N.E.2d at 975).

         “Court costs, as reflected in a certified bill of costs, need neither be orally pronounced nor

incorporated by reference in the judgment to be effective.” Armstrong v. State, 340 S.W.3d 759,

766 (Tex. Crim. App. 2011) (citing Weir, 278 S.W.3d at 367). Because “court costs are not

punitive” they need not “be included in the oral pronouncement of sentence.” Weir, 278 S.W.3d

at 367. On the other hand, because fines are considered punitive in nature, they must be orally

pronounced by the trial court during the sentencing phase. Armstrong, 340 S.W.3d at 766.

B.       Analysis

         Both the State and Hurst provided bills of cost explaining the costs included within Hurst’s

judgment. 1 Specifically, the $394.00 is broken down as follows:

         Costs attendant to drug convictions fee               $60.00
         Criminal filing fee                                   $219.00
         Sheriff’s release/commitment fee                      $5.00
         Sheriff’s writ service fee                            $35.00
         Time payment fee                                      $25.00
         Warrant fee                                           $50.00

Hurst contends three of the assessments were non-compensatory, i.e. punitive, and must be

pronounced at sentencing: the costs attendant to drug convictions fee, the criminal filing fee, and

the time payment fee. The State counters the court costs are compensatory and need not be

delineated by the trial court during sentencing. See Weir, 278 S.W.3d at 366–67 (holding costs set

out in the Texas Government Code are compensatory, not punitive).


1
  An appellate court can consider a supplemented bill of cost because the Code of Criminal Procedure does not
contemplate bill of costs being prepared and filed before a criminal conviction is appealed. See Houston v. State, 410
S.W.3d 475, 479 (Tex. App.—Fort Worth 2013, no pet.).

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       The “costs attendant to drug convictions” fee is assessed to any individual conviction under

chapter 481 of the Health and Safety Code. TEX. CODE CRIM. PROC. ANN. art. 102.0178(a)(2)

(West Supp. 2014). The fee is assessed for the maintenance and development of drug court

programs operated within the county. Id. art. 102.0178(e). Because this is a statutory assessment

of costs against the defendant, it is not an additional penalty or punitive. Weir, 278 S.W.3d at 366.

Therefore, we overrule this contention.

       Hurst next argues the “criminal filing fee” was assessed in the amount of $219.00, but

article 102.005(a) and (c) set the fee at $40.00, not $219.00. He similarly argues the “time payment

fee” is a penalty imposed on a person who has not paid off his fine, court costs, and restitution and

is, therefore, a penalty. Hurst, however, fails to recognize these fees and assessments are statutorily

provided for as allowable court costs. See TEX. CODE CRIM. PROC. ANN. art. 102.005(a), (c) (West

2006); TEX. GOV’T. CODE ANN. §§ 102.021 (West Supp. 2014) (court costs under Code of

Criminal Procedure), 102.0212 (court costs under Local Government Code), 102.041 (court costs

for district court). Because these fees are statutory assessments of costs, we overrule this

contention. See Weir, 278 S.W.3d at 366.

       Because we conclude the charges contained within the court costs are compensatory

charges, allowed under the Texas Code of Criminal Procedure and the Texas Government Code,

the trial court properly assessed court costs in the amount of $394.00. We, therefore, overrule this

issue on appeal.

                                            CONCLUSION

       Hurst did not raise any complaints as to Tennyson Middle School as the drug-free zone to

which he was pleading; he, therefore, failed to preserve error for review. Additionally, because

all of the costs assessed against Hurst were costs provided for by statute, we conclude the costs are

compensatory and not punitive in nature.
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      Having overruled each of Hurst’s complaints on appeal, we affirm the trial court’s

judgment.

                                           Patricia O. Alvarez, Justice

DO NOT PUBLISH




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