                                  NO. 12-12-00322-CR

                        IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

PAMELA JOY DOOLEY,                               §           APPEAL FROM THE 7TH
APPELLANT

V.                                               §           JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §          SMITH COUNTY, TEXAS

                                    MEMORANDUM OPINION
       Pamela Joy Dooley appeals her felony conviction for driving while intoxicated (DWI). In
two issues, Appellant challenges the sufficiency of the evidence to support the trial court’s
assessment of court costs. We modify and affirm as modified.

                                           BACKGROUND
       Appellant was indicted for DWI, and the indictment alleged that Appellant had four prior
convictions relating to operation of a motor vehicle while intoxicated. Appellant pleaded not guilty
and the matter proceeded to a jury trial. At the trial, the State presented evidence that Appellant was
observed committing several traffic violations while driving a motor vehicle, which caused a police
officer to detain her. The officer detected the strong smell of alcohol on Appellant, and observed that
she had glassy eyes and slurred speech. Appellant performed field sobriety tests. Based on her
performance, the officer believed she was intoxicated and arrested her. The jury found Appellant
guilty, and the trial court sentenced Appellant to fifty years of imprisonment.
       In the judgment of conviction, the trial court ordered the payment of $498.00 in court costs.
At that time, the certified bill of costs was not in the record. The district clerk subsequently
supplemented the record to include a certified bill of costs.

                                             COURT COSTS
        In two issues, Appellant challenges the trial court’s order to withdraw funds from her inmate
trust account because there was no bill of costs in the record. Appellant also challenges the court
costs assessed in the judgment. Because the withholding order is contained in the judgment as an
attachment, we construe Appellant’s issues as a challenge to the sufficiency of the evidence
supporting the trial court’s assessment of costs.
Standard of Review
        A challenge to the sufficiency of the evidence supporting court costs is reviewable on direct
appeal in a criminal case. Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011). We
measure sufficiency by reviewing the record in the light most favorable to the award. Mayer v.
State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Johnson v. State, No. 12-12-00289-CR, 2013
WL 3054994, at *2 (Tex. App.—Tyler June 19, 2013, no pet.) (not yet released for publication).
Applicable Law
        A judgment shall “adjudge the costs against the defendant, and order collection thereof. . . .”
See TEX. CODE CRIM. PROC. ANN. art. 42.16 (West 2006). If a criminal action is appealed, “an
officer of the court shall certify and sign a bill of costs stating the costs that have accrued and send the
bill of costs to the court to which the action or proceeding is transferred or appealed.” Id. art.
103.006 (West 2006). Requiring a convicted defendant to pay court costs does not alter the range of
punishment and is authorized by statute. See id. art. 103.001 (West 2006); Weir v. State, 278 S.W.3d
364, 367 (Tex. Crim. App. 2009). The clerk’s record may be supplemented to add the bill of costs.
See TEX. R. APP. P. 34.5(c); TEX. CODE CRIM. PROC. ANN. art. 103.006; Johnson, 2013 WL 3054994,
at *1-2.
Discussion
        Here, the judgment of conviction reflects that the trial court assessed $498.00 as court costs.
The judgment of conviction also includes a document identified as “Attachment A Order to Withdraw
Funds.” The attachment states that Appellant has incurred “[c]ourt costs, fees and/or fines and/or
restitution” in the amount of $498.00.
        In her brief, Appellant argues that her right to due process was violated when the trial court

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ordered the withdrawal of funds from her inmate account without a bill of costs because she had no
ability to know or challenge the legal basis for the costs assessed against her. Because we conclude
that supplementation of the record with the bill of costs is appropriate, this argument is moot. See
Ballinger v. State, No. 12-12-00280-CR, 2013 WL 3054935, at *2 n.4 (Tex. App.—Tyler June 19,
2013, no. pet.) (not yet released for publication).
         Appellant next contends that portions of the costs assessed are unsupported by the evidence.
We have reviewed each of the fees listed in the bill of costs. Except for the items listed as “graffiti
eradication fund” in the amount of $5.00, and a “DNA sample cost” in the amount of $34.00, all other
costs and fees are authorized by statute and applicable to this case.1
         The “graffiti eradication fund” fee should not be imposed unless an individual is convicted of
an offense under Section 28.08 of the penal code.2 Appellant was not convicted under Section 28.08.
Accordingly, the evidence is insufficient to support the imposition of the “graffiti eradication fund”
cost. See Jackson v. State, No. 12-12-00253-CR, 2013 WL 3377400, at *4 (Tex. App.—Tyler July
3, 2013, no. pet.) (mem. op., not designated for publication).
         The item listed as “DNA sample cost” should not be imposed unless an individual is a
convicted felon placed on community supervision and is required to submit to a DNA sample under
Article 42.12, Section 11(j) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC.
ANN. art. 102.020(a)(3) (West Supp. 2012). Appellant was assessed the “DNA sample cost,” but she
was not placed on community supervision.                   See id. art. 42.12, § 11(j) (West Supp. 2012).
Accordingly, the evidence is insufficient to support the imposition of the $34.00 “DNA sample cost”
assessed in the bill of costs. The evidence is, however, sufficient to support the imposition of

         1
           The bill of costs lists attorney’s fees, jury service fee, clerk’s fee, records management, records management
and preservation fee—DC, warrant fee, bond fee, arrest fee (commit and release), courthouse security, consolidated court
fees, judiciary fund county, judiciary fund state, and indigent defense court cost. All of these fees are authorized by
statute. See TEX. CODE CRIM. PROC. ANN. arts. 26.05(g), 102.0045(a) (West Supp. 2012), 102.005(a), (f) (West 2006),
102.011(a)(2), (5), (6) (West Supp. 2012), 102.017(a) (West Supp. 2012); TEX. LOCAL GOV’T CODE ANN.
§§ 133.102(a)(1) (West Supp. 2012), 133.105(a), (b) (West 2008), 133.107(a) (West Supp. 2012). In addition to the
customary court costs, the clerk properly included three fees that are applicable in DWI cases: a “drug court program”
fee, a “video fee” as reimbursement for visual recording Appellant during the DWI investigation, and an “EMS/trauma
fund” fee. TEX. CODE CRIM. PROC. ANN. arts. 102.0178(a)(1) (West Supp. 2012), 102.018(a) (West 2006), 102.0185(a)
(West Supp. 2012).
         2
           A person commits a criminal offense under Section 28.08 if, “without the effective consent of the owner, the
person intentionally or knowingly makes markings, including inscriptions, slogans, drawings, or paintings, on the tangible
property of the owner with: (1) paint; (2) an indelible marker; or (3) an etching or engraving device.” TEX. PENAL CODE
ANN. § 28.08 (West 2011).
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$459.00 in court costs.
         We overrule Appellant’s first issue. We also sustain Appellant’s second issue in part and
overrule it in part.

                                                     DISPOSITION
         Having overruled Appellant’s first issue, and having sustained her second issue in part, we
modify the trial court’s judgment to reflect that the amount of court costs is $459.00. See TEX. R.
APP. P. 43.2(b). We also modify Attachment A to delete the assessment of $5.00 for the “graffiti
eradication fund,” to delete the assessment of $34.00 for the “DNA sample cost,” and to state that the
total amount of “court costs, fees and/or fines and/or restitution” is $459.00. See, e.g., Reyes v.
State, 324 S.W.3d 865, 868 (Tex. App.—Amarillo 2010, no pet.). We affirm the judgment of the
trial court as modified. See TEX. R APP. P. 43.2(b).


                                                                    SAM GRIFFITH
                                                                      Justice

Opinion delivered July 31, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                (DO NOT PUBLISH)



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                                COURT OF APPEALS
           TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                          JUDGMENT
                                             JULY 31, 2013


                                       NO. 12-12-00322-CR

                                     PAMELA JOY DOOLEY,
                                           Appellant
                                              V.
                                     THE STATE OF TEXAS,
                                           Appellee

_____________________________________________________________________________
                               Appeal from the 7th Judicial District Court
                           of Smith County, Texas. (Tr.Ct.No. 007-0296-12)
 _____________________________________________________________________________
                        THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below should be modified and, as modified, affirmed.
                        It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment below be modified to reflect that the amount of court costs is $459.00. We also
modify Attachment A to delete the assessment of $5.00 for the “graffiti eradication fund,” to delete
the assessment of $34.00 for the “DNA sample cost,” and to state that the total amount of “court
costs, fees and/or fines and/or restitution” is $459.00; and as modified, the trial court’s judgment
is affirmed; and that this decision be certified to the trial court below for observance.
                        Sam Griffith, Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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