                                        NO. 12-13-00067-CR

                               IN THE COURT OF APPEALS

                   TWELFTH COURT OF APPEALS DISTRICT

                                           TYLER, TEXAS

KEVIN GERARD BLACK,                                   §       APPEAL FROM THE 114TH
APPELLANT

V.                                                    §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                              §       SMITH COUNTY, TEXAS

                                        MEMORANDUM OPINION
       Kevin Gerard Black appeals his conviction for felony theft. He raises one issue on appeal.
We affirm.


                                                BACKGROUND
       Appellant was charged by indictment for the felony offense of theft.1 Appellant pleaded
guilty to the offense and was placed on deferred adjudication community supervision for a period of
five years. The State filed its second application to proceed to final adjudication on January 31,
2013. Appellant pleaded “true” to the four allegations contained in the State’s application. The
trial court found all four allegations “true,” revoked Appellant’s community supervision, found
Appellant guilty of theft, assessed punishment at eighteen months of confinement without a fine,
and ordered the balance of $209.49 in restitution to be paid.
       The judgment adjudicating guilt assessed court costs in the amount of $0.00. The judgment
included a document identified as “Attachment A Order to Withdraw Funds,” which states that
Appellant has incurred “[c]ourt costs, fees and/or fines and/or restitution” in the amount of $284.00.
The trial court pronounced sentence and signed the judgment on February 13, 2013. The judgment
was filed on February 14, 2013. A bill of costs was not in the record at this time.


       1
           See TEX. PENAL CODE ANN. § 31.03(e)(4)(D) (West Supp. 2012).
                                       PRESERVATION OF ERROR
         In this appeal, Appellant challenges the withholding order attached to the trial court’s
judgment. The State contends that Appellant did not preserve error on this issue because he did not
challenge the withholding order in a postjudgment motion.
Opportunity to Object
         Generally, a party must first complain in the trial court in order to preserve a complaint for
appellate review. TEX. R. APP. P. 33.1; Landers v. State, 402 S.W.3d 252, 254 (Tex. Crim. App.
2013). If error is not preserved at the trial court level, numerous constitutional rights, including
those implicating a defendant’s due process rights, may be forfeited for purposes of appellate
review. See Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009).
         The court of criminal appeals has recently held, however, that the requirement of error
preservation “may depend on the party’s having an opportunity to comply with the rule.” Landers,
402 S.W.3d at 254. “An appellant fails to preserve error by failing to object when he had the
opportunity; conversely, if an appellant never had the opportunity to object, then he has not
forfeited error.” Burt v. State, 396 S.W.3d 574, 577-78 (Tex. Crim. App. 2013).
Costs Payable
         There is no requirement that a certified bill of costs be filed at the time the trial court signs a
judgment of conviction or before a criminal case is appealed. Johnson v. State, No. 12-12-00289-
CR, 2013 WL 3054994, at *1 (Tex. App.—Tyler June 19, 2013, no pet.) (not yet released for
publication). But 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. See TEX. CODE CRIM. PROC.
ANN. art. 103.001 (West 2006). Court costs, as reflected in a certified bill of costs, need not be
orally pronounced or incorporated by reference in the judgment to be effective. Armstrong v. State,
340 S.W.3d 759, 766 (Tex. Crim. App. 2011). But once a case 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 is . . . appealed.” See TEX. CODE CRIM. PROC. ANN. art. 103.006 (West
2006).
         The enforcement, i.e. collection, of those costs is permitted by the code of criminal
procedure and the government code. See id. arts. 103.003, 103.0033 (West Supp. 2012), arts.
103.0031, 103.0032 (West 2006); TEX. GOV’T CODE ANN. § 501.014(e) (2), (4) (West 2012); see
also Armstrong, 340 S.W.3d at 765; Harrell v. State, 286 S.W.3d 315, 316 (Tex. 2009).




                                                     2
         When an inmate is admitted to the custody of the Texas Department of Criminal Justice, any
money on the inmate’s person or received with the inmate upon his arrival and during his
confinement is credited to an account for that inmate. See TEX. GOV’T CODE ANN. § 501.014(a)
(West 2012). Once the account is created, the department may spend the money as requested by
written order of the inmate or as required by law or policy. See id. Upon notification by the trial
court that an inmate has incurred a financial obligation enumerated in Section 501.014, subsection
(e) of the government code, the department’s withdrawal of monies from the inmate’s account to
pay that obligation is mandatory. See id. § 501.014(e) (West 2012). This includes the department’s
withdrawal of monies from an inmate’s account to pay for “all orders for restitution” and “all orders
for court fees and costs.” See id. § 501.014(e)(2), (4) (West 2012).
Discussion
         Here, the trial court’s judgment assessed court costs in the amount of $0.00 and restitution in
the amount of $209.89. The attached “Order to Withdraw Funds” states that Appellant has incurred
“[c]ourt costs, fees and/or fines and/or restitution” in the amount of $284.00. The State argues that
Appellant was “made aware” that the withholding order was invalid when the trial court signed the
judgment containing the withdrawal order and should have filed a postjudgment motion.2
         We disagree with the State’s contention that error was apparent upon the trial court’s
issuance of the judgment without a certified bill of costs being in the record. The code of criminal
procedure does not require that a written bill of costs be filed prior to the entry of a judgment in
which court costs are assessed. See TEX. CODE CRIM. PROC. ANN. art. 103.001; Johnson, 2013 WL
3054994, at *1.3 The costs assessed in the order attached to the trial court’s judgment would have
nevertheless been “payable” as long as a bill of costs was “ready to be produced.” See TEX. CODE




         2
           Although the State insists that a postjudgment motion should have been filed, it fails to identify any rules of
criminal or appellate procedure that identify the proper mechanism for bringing the error to the trial court’s attention.
The State contends that Article 103.008 of the code of criminal procedure permits a defendant to complain of the
imposition of court costs prior to appeal. See TEX. CODE CRIM. PROC. ANN. art. 103.008 (West 2006). Article 103.008
requires a trial court to “correct any error in the costs” upon the filing of a motion by a defendant. See id. Because
there was no bill of costs in the record, Appellant was unable to identify any errors for the trial court to correct.
         3
          The trial court did not orally pronounce the assessment of costs when it adjudicated Appellant’s guilt and
revoked his community supervision. However, oral pronouncement was not required in order to assess costs against
Appellant. See Owen v. State, 352 S.W.3d 542, 546 (Tex. App.—Amarillo 2011, no pet.) (“Legislatively mandated fees
and costs may be withdrawn from an inmate’s account without regard to his ability to pay and do not need to be
included in the oral pronouncement of sentence or in the written judgment in order to be imposed upon a convicted
defendant.”).



                                                            3
CRIM. PROC. ANN. art. 103.001. Therefore, there was a presumption that the order attached to the
judgment was supported by a bill of costs that was “ready to be produced.” See id.
         Appellate counsel specifically requested that “Any Bill of Cost” be included in the appellate
record when he filed his designation of record. When the clerk’s record was filed with this court, it
did not include a bill of costs. This omission rebutted the presumption that the order in the trial
court’s judgment was supported by a bill of costs that was “ready to be produced.” It was not until
after the clerk’s record was filed with this court that the error became apparent.
         The clerk’s record was filed nineteen days after Appellant’s sentence was imposed in open
court. This left Appellant with eleven days to submit a motion for new trial or motion in arrest of
judgment.4 Assuming without deciding that a motion for new trial or motion in arrest of judgment
would be appropriate, we cannot conclude that Appellant had enough time to submit either motion
because he would have had to file the motions within a shorter time frame than allowed by statute.
See Landers, 402 S.W.3d at 255 (declining to adopt a rule that would allow judge to de facto alter
statutory time frame for motions for new trial even though appellant arguably had enough time to
submit such a motion).
         A formal bill of exception, however, may have been the appropriate vehicle to challenge the
trial court’s order and to preserve the error on appeal. See TEX. R. APP. P. 33.2; see also Landers,
402 S.W.3d at 256 (Keller, J., concurring) (stating that formal bill of exception may be appropriate
vehicle for bill of costs claim). A formal bill of exception may be filed no more than sixty days
after sentence is pronounced or suspended in open court if a motion for new trial is not filed. See
TEX. R. APP. P. 33.2(e)(2). The clerk’s record must be filed within the same time period when, as
here, a motion for new trial is not filed. See id. 33.2(e)(2)(A), 35.2(a). Because the clerk’s record
in this case was filed nineteen days after sentence was pronounced, Appellant had forty-one days to
file a formal bill of exception with the trial court (assuming that Appellant had the opportunity to
review and find the error on the day the clerk’s record was filed with this court).
         It is certainly arguable that forty-one days was sufficient time for Appellant to file a formal
bill of exception. But to hold that Appellant forfeited his complaint on appeal for failing to do so
would, in effect, allow the trial court clerk to modify the time frame for filing a bill of exception.
Cf. Landers, 402 S.W.3d at 255. We decline to adopt a rule that would shorten the time frame for

         4
            See TEX. R. APP. P. 21.4(a) (“The defendant may file a motion for new trial before, but no later than 30 days
after, the date when the trial court imposes . . . sentence in open court.”); see also TEX. R. APP. P. 22.3 (“A defendant
may file a motion in arrest of judgment before, but no later than 30 days after, the date when the trial court imposes . . .
sentence in open court.”).


                                                             4
filing a formal bill of exception. See id. Accordingly, we hold that Appellant did not forfeit his
complaint on appeal for failing to timely file a formal bill of exception. See id.


                          VALIDITY OF WITHHOLDING ORDER AND DUE PROCESS
         In his sole issue, Appellant argues that the order attached to the trial court’s judgment is
invalid and violates his right to due process. Because the bill of costs was not included in the
record, Appellant contends that he has no way to determine, or challenge, whether the costs were
correctly assessed.
         After Appellant filed his brief, the record was supplemented in this case to include a bill of
costs. Appellant has not been deprived of the opportunity to file a supplemental or reply brief to
challenge whether the costs in the withholding order were correctly assessed. We have received no
such brief that identifies any incorrectly assessed costs.
         Having compared the bill of costs with the trial court’s judgment and withdrawal order, we
conclude that Appellant’s argument on appeal is now 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). Accordingly, we overrule Appellant’s sole issue on appeal.


                                                     DISPOSITION
         Having overruled Appellant’s sole issue on appeal, we affirm the judgment of the trial court.


                                                                    JAMES T. WORTHEN
                                                                       Chief Justice



Opinion delivered August 30, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                (DO NOT PUBLISH)



                                                                5
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                            AUGUST 30, 2013


                                          NO. 12-13-00067-CR


                                      KEVIN GERARD BLACK,
                                             Appellant
                                                V.
                                       THE STATE OF TEXAS,
                                             Appellee


                                 Appeal from the 114th District Court
                         of Smith County, Texas (Tr.Ct.No. 114-0770-11)


                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                        James T. Worthen, Chief Justice.
                        Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
