                                                                       ACCEPTED
                                                                   12-15-00049-CR
                                                      TWELFTH COURT OF APPEALS
                                                                    TYLER, TEXAS
                                                               6/8/2015 5:17:19 PM
                                                                     CATHY LUSK
                                                                            CLERK

           NUMBER 12-15-00049-CR

                                                  FILED IN
                                           12th COURT OF APPEALS
IN THE TWELFTH DISTRICT COURT OF        APPEALS TYLER, TEXAS
              TYLER, TEXAS                  6/8/2015 5:17:19 PM
                                                CATHY S. LUSK
                                                    Clerk
         VALERIE SALYARDS GILMORE,
                  Appellant

                        v.

             THE STATE OF TEXAS,
                  Appellee

From the 7th District Court of Smith County, Texas
       Trial Cause Number 007-1439-14


                STATE’S BRIEF


      ORAL ARGUMENT NOT REQUESTED

              D. MATT BINGHAM
           Criminal District Attorney
              Smith County, Texas

               AARON REDIKER
           Assistant District Attorney
      State Bar of Texas Number 24046692
      Smith County Courthouse, 4th Floor
               Tyler, Texas 75702
             Phone: (903) 590-1720
              Fax: (903) 590-1719
      Email: arediker@smith-county.com
                                            T ABLE     OF   C ONTENTS

Index of Authorities.............................................................................................. 2


Statement of Facts ................................................................................................ 4


Summary of Argument ......................................................................................... 4


I.ISSUE: The trial court did not err in assessing a specific amount of court costs
against appellant in the judgment and withdrawal order because a bill of costs
was properly added to the record through a supplemental clerk’s record. ....... 4
Standard of Review .............................................................................................. 4
Argument ...............................................................................................................5


Certificate of Compliance .................................................................................... 10


Certificate of Service ........................................................................................... 10




                                                            1
                                                 I NDEX       OF    A UTHORITIES

Texas Cases
Allen v. State, 426 S.W.3d 253 (Tex. App.—Texarkana 2013, no pet.) ...................... 8
Armstrong v. State, 340 S.W.3d 759 (Tex. Crim. App. 2011) ..................................... 5, 6
Ballinger v. State, 405 S.W.3d 346 (Tex. App.—Tyler 2013, no pet.) ........................ 6
Brewer v. State, 572 S.W.2d 719 (Tex. Crim. App. 1978) ............................................... 9
Johnson v. State, 405 S.W.3d 350 (Tex. App.–Tyler 2013, no pet.) ............................. 7
Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014) ........................................... 5, 8
Owen v. State, 352 S.W.3d 542 (Tex. App.–Amarillo 2011, pet. ref’d) ...................... 8


Texas Statutes
Tex. Code Crim. Proc. Ann. art. 102.0045............................................................................. 7
Tex. Code Crim. Proc. Ann. art. 102.005 ............................................................................... 7
Tex. Code Crim. Proc. Ann. art. 102.011 ............................................................................... 7
Tex. Code Crim. Proc. Ann. art. 102.0169............................................................................. 7
Tex. Code Crim. Proc. Ann. art. 102.017 ............................................................................... 7
Tex. Code Crim. Proc. Ann. art. 102.0178............................................................................. 7
Tex. Code Crim. Proc. Ann. art. 103.001 ............................................................................... 5
Tex. Code Crim. Proc. Ann. art. 103.006 ............................................................................... 6
Tex. Code Crim. Proc. Ann. art. 103.009 ............................................................................... 8
Tex. Gov’t Code Ann. § 51.851 .................................................................................................. 7
Tex. Loc. Gov’t Code Ann. § 133.102 ...................................................................................... 7
Tex. Loc. Gov’t Code Ann. § 133.103 ...................................................................................... 7
Tex. Loc. Gov’t Code Ann. § 133.105 ...................................................................................... 7
Tex. Loc. Gov’t Code Ann. § 133.107 ...................................................................................... 7


Texas Rules
Tex. R. App. P. 34.5 ......................................................................................................................... 6
Tex. R. App. P. 43.2 ......................................................................................................................... 8


Other Authorities
TEX. OFFICE OF COURT ADMIN., DISTRICT CLERK'S FELONY COURT COST CHART (2013).... 7




                                                                       2
                          NUMBER 12-15-00049-CR


             IN THE TWELFTH DISTRICT COURT OF APPEALS
                           TYLER, TEXAS


                        VALERIE SALYARDS GILMORE,
                                 Appellant

                                       v.

                            THE STATE OF TEXAS,
                                 Appellee

              From the 7th District Court of Smith County, Texas
                     Trial Cause Number 007-1439-14


                             STATE’S B RIEF

TO THE HONORABLE COURT OF APPEALS:

   Comes now the State of Texas, by and through the undersigned Assistant

Criminal District Attorney, respectfully requesting that this Court overrule

appellant’s sole alleged issue, modify the judgment and withdrawal order to

reflect the court costs assessed in the bill of costs, and affirm the judgment of

the trial court in the above-captioned cause as modified.




                                       3
                             S TATEMENT      OF   F ACTS

   Appellant has stated the essential nature of the proceedings and the

evidence presented at trial (Appellant's Br. 2). In the interest of judicial

economy, any other facts not mentioned therein that may be relevant to

disposition of appellant's alleged issue will be discussed in the State's

arguments in response.

                           Summary of Argument

   As the record was properly supplemented with a bill of costs following

appellant’s notice of appeal, the trial court did not err in assessing a specific

amount of court costs in the judgment and withdrawal order. Where, as here,

the bill of costs reflects a different amount than that imposed in the judgment

and withdrawal order, the Court should modify the judgment and withdrawal

order to reflect the amount of court costs assessed in the bill.

I. I SSUE : The trial court did not err in assessing a specific amount
of court costs against appellant in the judgment and withdrawal
order because a bill of costs was properly added to the record
through a supplemental clerk’s record .

                             S TANDARD   OF   R EVIEW

   “[C]ourt costs are not part of the guilt or sentence of a criminal defendant,

nor must they be proven at trial; rather, they are ‘a nonpunitive recoupment of


                                         4
the costs of judicial resources expended in connection with the trial of the

case.’” Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014) (citing

Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011)). “As a result,

we review the assessment of court costs on appeal to determine if there is a

basis for the cost, not to determine if there was sufficient evidence offered at

trial to prove each cost, and traditional Jackson evidentiary-sufficiency

principles do not apply.” Johnson, 423 S.W.3d at 390.

                                  A RGUMENT

   Appellant complains that the trial court erred ordering the withdrawal of

funds from her inmate trust account without a supporting bill of costs

(Appellant’s Br. 3-5). However, “a specific amount of court costs need not be

supported by a bill of costs in the appellate record for a reviewing court to

conclude that the assessed court costs are supported by facts in the record.”

Johnson, 423 S.W.3d at 395. Article 103.001 of the Code of Criminal Procedure

provides that, “[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. Ann. art.

103.001 (West 2014). “If a criminal action or proceeding is transferred from
                                       5
one court to another or 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.”

Tex. Code Crim. Proc. Ann. art. 103.006 (West 2014). Moreover, “[c]ourt 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, 340

S.W.3d at 766. “If a relevant item has been omitted from the clerk's record,

the trial court, the appellate court, or any party may by letter direct the trial

court clerk to prepare, certify, and file in the appellate court a supplement

containing the omitted item.” Tex. R. App. P. 34.5(c)(1). “[A] bill of costs is a

relevant item that if omitted from the record, can be prepared and added to

the record via a supplemental clerk's record.” Johnson, 423 S.W.3d at 392.

   Following her negotiated plea of guilty to the offense of possession of

methamphetamine, the trial court entered a judgment and withdrawal order

imposing court costs of $344.00 on 20 February 2015 (Clerk’s R. at 54-56).

However, the bill of costs filed by the Smith County District Clerk on 18 May

2015 shows the assessment of $369.00 in court costs and fees (Clerk’s R. Supp.

at 4). See, e.g., Ballinger v. State, 405 S.W.3d 346, 349 (Tex. App.—Tyler 2013,

no pet.) (“[S]upplementing the record to include the bill of costs is
                                        6
appropriate and does not violate due process.”); Johnson v. State, 405 S.W.3d

350, 353 (Tex. App.–Tyler 2013, no pet.) (same). The charges listed in the bill

of costs and authority for each are as follows:

Authority                                     Fee Description             Amount
Tex. Code Crim. Proc. art. 102.005(a)         Clerk’s Fee                 $40.00
Tex. Loc. Gov’t Code § 133.102                Consolidated Court Fees     $133.00
Tex. Code Crim. Proc. art. 102.005(f)         Records Management          $22.50
Tex. Code Crim. Proc. art. 102.017(a)         Courthouse Security         $5.00
Tex.    Code     Crim.     Proc.   art.       Warrant Fee                 $50.00
102.011(a)(2)
Tex.    Code     Crim.     Proc.   art.       Bond Fee                    $10.00
102.011(a)(5)
Tex. Code Crim. Proc. art. 102.005(f)         Records Management &        $2.50
                                              Preservation Fee – DC
Tex. Code Crim. Proc. art. 102.0045           Jury Service Fee            $4.00
Tex. Loc. Gov’t Code § 133.105(a)             Judiciary Fund State        $5.40
Tex. Loc. Gov’t Code § 133.105(a)             Judiciary Fund County       $0.60
Tex. Loc. Gov’t Code § 133.107                Indigent Defense Court      $2.00
                                              Cost
Tex. Code Crim. Proc. art. 102.0169           Technology Fee              $4.00
Tex. Code Crim. Proc. art. 102.0178           Drug Court Program          $60.00
Tex. Gov’t Code § 51.851(d)                   E-Filing Fees Criminal      $5.00
Tex. Loc. Gov’t Code § 133.103                Time Payment                $25.00
                                              Total                       $369.00

(Clerk's R. Supp. at 4). See TEX. OFFICE        OF   COURT ADMIN., DISTRICT CLERK'S

FELONY       COURT        COST        CHART             (2013),    available       at

http://www.txcourts.gov/media/681164/dc-felctcst090113.pdf.             The    total

amount of court costs listed in the bill of costs exceeds the amount listed in

the judgment and withdrawal order by $25.00 due to the assessment of a time
                                          7
payment fee after appellant failed to pay all of her court costs and fees within

thirty days of the date judgment was entered (Clerk’s R. at 54-56; Clerk’s R.

Supp. at 4). Tex. Loc. Gov’t Code Ann. § 133.103(a) (West 2014). See Allen v.

State, 426 S.W.3d 253, 259 (Tex. App.—Texarkana 2013, no pet.) (bill of costs

controls when amount listed differs from amount reflected in judgment);

Owen v. State, 352 S.W.3d 542, 547 (Tex. App.–Amarillo 2011, pet. ref’d) (citing

Tex. Code Crim. Proc. Ann. art. 103.009(a) and (c) (West 2006)) (“A clerk of a

court is required to keep a fee record, and a statement of an item therein is

prima facie evidence of the correctness of the statement.”). As the record was

properly supplemented with a bill of costs, the costs and fees imposed by the

trial court and ordered withdrawn from her inmate trust account are

supported by the record. See Johnson, 423 S.W.3d at 392, 395-96 (“[A]lthough

a bill of costs is not required to sustain statutorily authorized and assessed

court costs, it is the most expedient, and therefore, preferable method.”).

Therefore, appellant’s sole alleged issue is without merit and should be

overruled. Since the necessary data for reformation is apparent from the

record, the Court should modify the judgment and order to withdraw funds to

reflect the assessment of $369.00 in court costs and affirm the judgment as

modified. See Tex. R. App. P. 43.2(b); Brewer v. State, 572 S.W.2d 719, 723 (Tex.
                                       8
Crim. App. 1978) (“Where the Court has the necessary data and evidence

before it for reformation, the judgment may be reformed on appeal.”).

                                   PRAYER

  WHEREFORE, PREMISES CONSIDERED, the State of Texas prays that the

Court overrule appellant’s sole alleged issue, modify the judgment and

withdrawal order to reflect the assessment of $369.00 in court costs, and

affirm the judgment of the 7th District Court of Smith County, Texas, in the

above-captioned cause as modified.

                                          Respectfully submitted,

                                          D. MATT BINGHAM
                                          Criminal District Attorney
                                          Smith County, Texas


                                          /s/ Aaron Rediker
                                          Aaron Rediker
                                          Assistant District Attorney
                                          SBOT #: 24046692
                                          100 North Broadway, 4th Floor
                                          Tyler, Texas 75702
                                          Office: (903) 590-1720
                                          Fax: (903) 590-1719 (fax)
                                          arediker@smith-county.com




                                      9
                       C ERTIFICATE   OF   C OMPLIANCE

  Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the undersigned

attorney certifies that the word count for this document is 1,318 words as

calculated by Microsoft Word 2010.


                                           /s/ Aaron Rediker
                                           Aaron Rediker


                         C ERTIFICATE   OF   S ERVICE

  On 8 June 2015, a legible copy of the State’s Brief was sent by email to A.

Reeve Jackson, attorney for appellant, at JLawAppeals@gmail.com.


                                           /s/ Aaron Rediker
                                           Aaron Rediker




                                      10
