Opinion issued July 25, 2013




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-12-01096-CR
                            ———————————
                   EDUARDO CRUZ RAMIREZ, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


             On Appeal from County Criminal Court at Law No. 1
                            Harris County, Texas
                        Trial Court Case No. 1793517


                                   OPINION

      Appellant, Eduardo Cruz Ramirez, was charged by information with

violation of a protective order. Appellant pleaded not guilty. A jury found him

guilty, and the trial court assessed a punishment of 300 days in jail. The trial court

also assessed court costs at $402. In two issues, appellant argues the evidence is
insufficient (1) to support his conviction and (2) to support the assessment of court

costs.

         We affirm.

                                     Background

         Appellant and Miriam Liquez were married, but divorced in 2005. In June

2011, Liquez sought and obtained a protective order against appellant. Among

other things, the protective order prohibited appellant from “[c]ommunicating

directly with . . . LIQUEZ in a threatening or harassing manner.” The protective

order was in effect for two years.

         In the early morning of November 6, 2011, while Liquez was asleep,

appellant called her cell phone. When she awoke that morning, she called the

Harris County Sherriff’s Office, stating that appellant had left threatening

messages on her phone. Appellant ultimately took her phone to the Harris County

District Attorney’s Office. Someone at the district attorney’s office made

recordings of voicemail messages on Liquez’s phone. Those records were put on a

CD and introduced into evidence at the trial.

         There were five recordings on the CD. Four of those were from appellant.

None of them contained information about the time the message was created.

Three of the four messages included references to Liquez’s boyfriend. Those same

three included vows to kill both Liquez and her boyfriend.


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        At trial, there was some confusion in Liquez’s testimony about whether all

of the messages from appellant on the CD were created before or after the

protective order was entered. Liquez did consistently assert, however, that at least

two of the four messages were left after the protective order was entered. She also

testified that she did not begin dating her boyfriend until August or September

2011.

        Also admitted at trial were exhibits showing phone calls from appellant to

Liquez, as well as a legend of some of the codes on the records. The records

establish that appellant made at least one call to Liquez around 1:20 in the morning

of November 6. The item for that record states that the “Seizure Time” was zero

minutes, the “Elapsed Time” was zero minutes, and the “Description” was

“M2M_DIR.” The legend explains that “M2M” signifies that the telephone call

was from one AT&T mobile phone to another AT&T mobile phone. The meaning

of “DIR” depends on other factors. “Outbound calls will display DIR except for

voicemail checks directly from the handset (VMC). Inbound calls will display

DIR if no forwarding took place. Either the phone was answered or rang and was

not answered.” Other possible codes include “VMC,” signifying, “Call was from

handset to check Voicemail box,” as well as “VMB,” signifying, “Call was routed

to VoiceMail number.”




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                           Sufficiency of the Evidence

      In two issues, appellant argues the evidence is insufficient (1) to support his

conviction and (2) to support the assessment of court costs.

A.    Standard of Review

      This Court reviews sufficiency-of-the-evidence challenges applying the

same standard of review, regardless of whether an appellant presents the challenge

as a legal or a factual sufficiency challenge. See Ervin v. State, 331 S.W.3d 49,

53–54 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing majority

holding of Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)).             This

standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789 (1979). See Ervin, 331 S.W.3d at 54. Pursuant to this

standard, evidence is insufficient to support a conviction if, considering all the

record evidence in the light most favorable to the verdict, no rational fact finder

could have found that each essential element of the charged offense was proven

beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; In re

Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275

S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750

(Tex. Crim. App. 2007).      We can hold evidence to be insufficient under the

Jackson standard in two circumstances: (1) the record contains no evidence, or

merely a “modicum” of evidence, probative of an element of the offense, or (2) the


                                         4
evidence conclusively establishes a reasonable doubt. See Jackson, 443 U.S. at

314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see also Laster, 275 S.W.3d

at 518; Williams, 235 S.W.3d at 750.

      The    sufficiency-of-the-evidence       standard   “gives   full   play   to   the

responsibility of the trier of fact to fairly resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts.” Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; accord Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007). An appellate court presumes that the

fact finder resolved any conflicts in the evidence in favor of the verdict and defers

to that resolution, provided that the resolution is rational. See Jackson, 443 U.S. at

326, 99 S. Ct. at 2793. In viewing the record, “[d]irect and circumstantial evidence

are treated equally: ‘Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be

sufficient to establish guilt.’” Clayton, 235 S.W.3d at 778 (quoting Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). Additionally, the “cumulative

force” of all the circumstantial evidence can be sufficient for a jury to find the

accused guilty beyond a reasonable doubt. See Powell v. State, 194 S.W.3d 503,

507 (Tex. Crim. App. 2006).

      Sufficient evidence must support an assessment of costs in a bill of costs or

in a judgment. See Mayer v. State, 309 S.W.3d 552, 554–56 (Tex. Crim. App.


                                           5
2010) (holding that factual predicate for the assessment of court costs included in a

bill of costs must be supported by sufficient evidence in the record); Owen v. State,

352 S.W.3d 542, 547–48 (Tex. App.—Amarillo 2011, pet. ref’d) (holding

assessment of costs authorized by statute and supported by record constitutes

sufficient evidence). 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.

Mayer, 309 S.W.3d at 557.

B.    Violation of the Protective Order

      As he states in his brief, appellant’s “defense at trial was that any threatening

calls made were made prior to the protective order being granted.” Appellant

argues on appeal that the evidence is insufficient to establish that the messages in

question were made after the protective order became effective. To establish his

argument, appellant relies on a hypothetical presented by the Court of Criminal

Appeals in Brooks.

      The Court of Criminal Appeals held in Brooks that the standard of review

announced in the Supreme Court of the United States’s opinion in Jackson v.

Virginia applied to all sufficiency of the evidence challenges for the elements of

the charged offense. Brooks, 323 S.W.3d at 912–13,917–18, 922–24, 926–28.

The court held that the Jackson standard is an exacting standard and provided an

example to illustrate its effect:


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        The store clerk at trial identifies A as the robber. A properly
        authenticated surveillance videotape of the event clearly shows that B
        committed the robbery. But, the jury convicts A. It was within the
        jury's prerogative to believe the convenience store clerk and disregard
        the video. But based on all the evidence the jury’s finding of guilt is
        not a rational finding.

Id. at 907. Appellant argues he fits within this scenario because the phone records

establish that he did not leave any messages on Liquez’s phone on November 6,

2011.

        As an initial matter, it is worth pointing out that proof that appellant did not

leave a message on Liquez’s phone on November 6 is not proof that the messages

were left before June 2011, when the protective order became effective.

Nevertheless, as the State argues, the phone records do not establish as a matter of

law that no messages were left on November 6.

        Exhibits showing phone calls from appellant to Liquez as well as a legend of

some of the codes on the records were admitted into evidence at trial. The records

establish that appellant made at least one call to Liquez around 1:20 in the morning

of November 6. The item for that record states that the “Seizure Time” was zero

minutes, the “Elapsed Time” was zero minutes, and the “Description” was

“M2M_DIR.” The legend explains that “M2M” signifies that the telephone call

was from one AT&T mobile phone to another AT&T mobile phone. The meaning of

“DIR” depends on other factors. “Outbound calls will display DIR except for

voicemail checks directly from the handset (YMC). Inbound calls will display DIR if

                                            7
no forwarding took place. Either the phone was answered or rang and was not

answered.” Other possible codes include “VMC,” signifying, “Call was from handset

to check Voicemail box,” as well as “VMB,” signifying, “Call was routed to

VoiceMail number.”

      Appellant highlights the portion of the legend that explains “DIR” for

inbound calls signifies that “no forwarding took place” as well as the definition of

“VMB” as a call routed to the voicemail number. Appellant argues that this

establishes no voicemail messages were left. We disagree that this is the only

conclusion.

      The legend explains that “DIR” means, “Either the phone was answered or

rang and was not answered.” This suggests no activity by the phone’s owner.

Other codes, in contrast, suggest activity by the phone’s owner. “VMC” indicates

the owner checked voicemail. “FWD” suggests the owner forwarded the call to

another number. “VMB” could just as easily suggest that this code is used when

the owner actively sends the call to voicemail. Under this interpretation, “DIR”

does not exclude the possibility that the call was sent to the owner’s voicemail

when the owner did not answer the phone or refused to accept the call, only that

the owner did not actively direct it to voicemail.




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      This construction of the legend is not compelled, but it is not excluded

either. Accordingly, the record does not disprove that appellant left the threatening

messages after the protective order became effective.

      In addition to this evidence, Liquez testified that at least two of the four

messages were left after the protective order was entered. She also testified that

she did not begin dating her boyfriend until August or September 2011, several

months after the protective order was entered in June 2011. Three of the messages

left by appellant referenced her boyfriend. We hold that this is sufficient evidence

to support the jury’s determination that appellant’s threatening messages were left

after the protective order became effective.

      We overrule appellant’s first issue.

C.    Court Costs

      Appellant presents a number of grounds for his argument that the costs

assessed are not supported by the record. First, appellant argues that the bill of

costs included in the record does not meet the statutory requirements for a bill of

costs under article 103.001 of the Texas Code of Criminal Procedure. See TEX.

CODE CRIM. PROC. ANN. art. 103.001 (Vernon 2006). 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.” Id. This statute concerns when costs are payable, not how they can be


                                          9
assessed in a judgment. See id. The case before us is a direct appeal from a

criminal conviction, not a proceeding to collect costs for which a bill of costs

satisfying article 103.001 is required.

      Nonetheless, we note that the record was supplemented to include a bill of

costs that fulfills the requirements of article 103.001. It contains an itemized list of

court costs imposed on Ramirez, and the last page contains a certification stamp,

signed by the clerk, followed by the initials of the trial court deputy clerk. For all

of these reasons, we reject appellant’s objections to the cost bill.

      Next, appellant argues that there is no indication that the bill of costs was

presented to the trial court at the time of the judgment or at any other time. As

appellant acknowledges, however, we have held that presentment is not required.

“[A] bill of costs is not itself factual evidence to support the assessment of costs in

a [sufficiency of the evidence] inquiry. Rather, costs assessed in a bill of costs,

like those assessed in the judgment, must be supported by the record.” Thomas v.

State, No. 01-12-00487-CR, 2013 WL 1163980, at *3 (Tex. App.—Houston [1st

Dist.] Mar. 21, 2013, no pet.).

      Appellant further argues that he was denied due process by not being given

notice of the bill of costs at the time of judgment. In making this argument,

appellant relies on Harrell v. State, 286 S.W.3d 315 (Tex. 2009). As we have

recently held, “Harrell is procedurally distinguishable because it was a civil


                                           10
proceeding filed by a prison inmate who challenged the withdrawal of funds from

his trust account to pay court costs, but did not challenge the amount of costs

assessed. [Id.] at 316–17. In contrast, [Cardenas] is a direct criminal appeal that

does purport to challenge the assessment of costs.” Cardenas v. State, No. 01-11-

01123-CR, 2013 WL 1164365, at *5 (Tex. App.—Houston [1st Dist.] Mar. 21,

2013, no pet.). The same reasoning applies in this case. This is a direct criminal

appeal that does purport to challenge the assessment of costs.

      Finally, appellant argues that the evidence is insufficient to support the

portion of the bill of costs concerning summoning witnesses.          A defendant

convicted of a felony or misdemeanor must pay “$5 for summoning a witness”

when those services are performed by a peace officer. TEX. CODE CRIM. PROC.

ANN. art. 102.011(a)(1) (Vernon Supp. 2012). The bill of costs assesses $100 for

summoning 20 witnesses.

      The record establishes that a peace officer summoned over 10 witnesses on

September 13, 2012, over 10 witnesses on September 25, and 8 witnesses on

November 14. This is sufficient to support the assessment of costs for summoning

20 witnesses.

      Appellant argues that the sheriff’s return does not match the number of

summonses requested for the specified dates. We disagree. The Sheriff’s return




                                         11
explicitly states that all of the witnesses in the subpoena were summoned. The

return lists the witnesses by category, but indicates that all were summoned.

      Appellant also argues that there is an ambiguity in how the calculation is

performed. He argues that, under one reading of the statute, the charge applies

each time a person is summoned. Alternatively, under another reading, the charge

applies once to each individual regardless of the number of times the person is

served a summons.

      Matters of statutory construction are questions of law, which this Court

reviews de novo. Williams v. State, 253 S.W.3d 673, 677 (Tex. Crim. App. 2008).

When construing a statute, our primary objective is to ascertain and give effect to

the Legislature’s intent. TEX. GOV’T CODE ANN. § 312.005 (Vernon 2013); see

also Bryant v. State, 391 S.W.3d 86, 92 (Tex. Crim. App. 2012). To discern that

intent, we must consider the plain language of the statute and may consider the

legislative history and the consequences from alternative construction. See TEX.

GOV’T CODE ANN. § 311.023 (Vernon 2013); see also Bryant, 391 S.W.3d at 92.

We further consider statutes as a whole rather than their isolated provisions. See

Nguyen v. State, 1 S.W.3d 694, 696 (Tex. Crim. App. 1999).

      As the State points out, the statute requires a defendant to “pay 29 cents per

mile for mileage required of an officer to perform a service listed in this subsection

and to return from performing that service.” CODE CRIM. PROC. art. 102.011(b).


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This indicates that the intent of the statute is to reimburse the costs borne by the

peace officer. This goal would not be achieved by allowing only one payment for

summoning a witness regardless of the number of times that witness would have to

be summoned. Accordingly, we construe the statute to require a $5 fee for each

witness summoned each time the witness is summoned.

      We overrule appellant’s second issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Laura Carter Higley
                                              Justice

Panel consists of Justices Keyes, Higley, and Bland.

Publish. TEX. R. APP. P. 47.2(b).




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