            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                       NO. AP-77,007



                    EX PARTE NANCY GAIL KNIGHT, Applicant



              ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                       IN CAUSE NO. 53220-A FROM THE
                 47th DISTRICT COURT OF POTTER COUNTY


      A LCALA, J., delivered the opinion of the Court in which M EYERS, P RICE,
W OMACK, J OHNSON, H ERVEY, and C OCHRAN, JJ., joined. K EASLER, J., filed a
concurring opinion. K ELLER, P.J., concurred.

                                       OPINION

       Nancy Gail Knight, applicant, filed this application for a writ of habeas corpus under

Article 11.07 of the Texas Code of Criminal Procedure. T EX. C ODE C RIM. P ROC. art. 11.07.

In two grounds, she alleges that there is no evidence to support (1) the trial court’s entry of

a cumulation order and (2) the imposition of attorney’s fees in the bill of costs. We deny the

first ground and dismiss the second ground. As to the first ground, the cumulation order is

supported by the evidence that the jury that convicted applicant of possession of a controlled
                                                                                    Knight - 2

substance made an affirmative finding that the offense occurred in a drug-free zone, which

is a finding that was included in the trial court’s judgment. See T EX. H EALTH & S AFETY

C ODE § 481.134(h). That order is also supported by the record, which shows that the amount

of punishment actually assessed against applicant was almost twice the statutory minimum.

As to the second ground, we dismiss applicant’s complaint that there is no evidence to

support the imposition of attorney’s fees because that claim is not cognizable on a writ of

habeas corpus.

                                      I. Background

       By two indictments, applicant was charged with (1) unlawful possession of a firearm

by a felon in cause number 53,220-A and (2) possession of a controlled substance in the

amount of one gram or more but less than four grams in cause number 53,219-A. See T EX.

P ENAL C ODE § 46.04; T EX. H EALTH & S AFETY C ODE § 481.115(c). Each of these indictments

included punishment-enhancement paragraphs alleging that applicant had been twice

convicted of felony offenses, which, if proven, would make her punishable as a habitual

offender with a statutory minimum of 25 years in prison. See T EX. P ENAL C ODE § 12.42(d).

The indictment for possession of a controlled substance additionally alleged that applicant

used or exhibited a deadly weapon, which, if proven, would affect applicant’s parole

eligibility, and further alleged that she committed the offense in a drug-free zone, which, if

proven, would raise the minimum punishment to 30 years in prison for a habitual offender.

See T EX. H EALTH & S AFETY C ODE § 481.134(h).
                                                                                    Knight - 3

       Applicant pleaded not guilty to possession of controlled substance and was convicted

by a jury. The jury found true the allegations that she (1) used or exhibited a deadly weapon,

(2) committed the offense in a drug-free zone, and (3) had been previously convicted of the

offenses alleged in the two punishment-enhancement paragraphs. It assessed her punishment

at 55 years in prison. The trial court included those terms in its judgment.

       After she was sentenced for the drug-possession offense, applicant entered into a plea-

bargain agreement with the State for 15 years in prison for the charge of felon in possession

of a firearm, and that sentence was cumulated with the drug-possession conviction because

of the statutory requirement for cumulated sentences when one conviction was for an offense

in a drug-free zone. See T EX. P ENAL C ODE § 46.04. The State abandoned one of the

punishment-enhancement paragraphs that alleged a prior conviction, and applicant pleaded

guilty. The judgment states, “This sentence [for possession of a firearm] begins when the

sentence in Cause 53219-A in 47th District Court of Potter County, Texas [for possession

of a controlled substance] is completed.” The trial court determined that applicant had no

right of appeal because her conviction was pursuant to a plea-bargain agreement and she had

waived the right of appeal.

       The judgment in the firearm-possession case required applicant to pay the bill of costs

and incorporated the bill of costs by reference. The judgment ordered that the State of Texas

“have and recover of [applicant] all costs in this proceeding incurred, as set in the Bill of

Costs attached hereto and by this reference incorporated herein for all purposes.” The bill of
                                                                                    Knight - 4

costs, however, was dated a day after the judgment was entered. The bill of costs ordered

applicant to reimburse the county $1200 in fees for the attorney that had been appointed to

her. Although the record shows that the trial court found that applicant was indigent when

it appointed her an attorney, nothing in the record shows that the trial court ever determined

that applicant was no longer indigent.

       Applicant challenges the cumulation order and the order of repayment of attorney’s

fees. With respect to the cumulation order, the habeas court made findings of fact favorable

to applicant, which we discuss in detail below. With respect to the bill of costs, the habeas

court also made findings of fact favorable to applicant, concluding that she did not have an

opportunity to object to those costs and that no evidence supported the charge. The habeas

court found that no evidence supported these orders and recommended that relief be granted.

                                  II. Cumulation Order

       Applicant’s first ground alleges that no evidence shows that her punishment for the

conviction for possession of a controlled substance was increased due to a finding of the

offense’s commission in a drug-free zone. The State responds that applicant’s possession of

a controlled substance occurred in a drug-free zone and that cumulation of the sentence for

that conviction and her sentence for the firearm-possession conviction was mandatory.

       A. Applicable Law

       Section 481.134(h) of the Texas Health and Safety Code, which we refer to as the

“mandatory-cumulation provision,” states, “Punishment that is increased for a conviction for
                                                                                         Knight - 5

an offense listed under this section may not run concurrently with punishment for a

conviction under any other criminal statute.” T EX. H EALTH & S AFETY C ODE § 481.134(h).

In another case, this Court recently deleted a portion of a judgment that had ordered that a

sentence be cumulated with another sentence because the record was insufficient to support

application of the mandatory-cumulation provision. See Moore v. State, 371 S.W.3d 221,

229 (Tex. Crim. App. 2012). In Moore v. State, this Court held that, “[w]hen sentences are

mandatorily cumulated under the drug-free-zone statute, the criminal offenses reflected in

the judgment must not be listed in the drug-free-zone statute.” See id. at 226 (citing T EX.

H EALTH & S AFETY C ODE § 481.134). We sustained Moore’s challenge because both

convictions were for offenses listed in the drug-free-zone statute, making cumulation

discretionary rather than mandatory.1 See id. at 227-28. Cumulation is mandatory under the

drug-free-zone statute when one offense is listed in the drug-free-zone statute and one is not.

See id. at 226 (citing T EX. H EALTH & S AFETY C ODE § 481.134).

       This Court has not yet determined whether the language of the mandatory-cumulation

provision, which states that “[p]unishment that is increased for a conviction for an offense


1
         We note that, in the absence of the mandatory-cumulation provision, the trial court had
discretion to cumulate the sentences under the Texas Code of Criminal Procedure. See TEX . HEALTH
& SAFETY CODE § 481.134(h); TEX . CODE CRIM . PROC. art. 42.08. The record, however, does not
show that the sentences were cumulated under this discretionary provision or as part of applicant’s
plea bargain. Accordingly, the habeas judge’s findings state that he was “unable to make a finding
whether or not the [trial judge] would have cumulated applicant’s sentences but for the prosecutor’s
representation that cumulation was mandatory.” The concurring opinion disagrees with this finding
of fact by the habeas judge and determines that cumulation was imposed as part of the plea bargain.
But we must defer to the judge’s fact finding because it is supported by the record. See Ex parte
Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008).
                                                                                          Knight - 6

listed under this section,” means either (1) that the punishment range was increased due to

an affirmative finding of a drug-free zone violation or (2) that the fact finder actually

increased the amount of punishment that was assessed after it found a drug-free-zone

violation. See T EX. H EALTH & S AFETY C ODE § 481.134(h). We need not resolve that dispute

here because even if the latter, higher evidentiary burden applies, the evidence satisfies that

burden.

       We have limited review of evidence claims in habeas proceedings. See Ex parte

Perales, 215 S.W.3d 418, 419 (Tex. Crim. App. 2007). A claim of insufficient evidence is

not cognizable on a postconviction writ of habeas corpus, but a claim of no evidence is

cognizable.2 Id. Because our jurisdiction is limited to review for any evidence rather than


2
        In the concurring opinion, it is suggested that applicant’s claim is not cognizable in an
application for a writ of habeas corpus because applicant expressly waived her right to appeal by
pleading guilty and is thus prohibited from challenging the cumulation order for the first time on
habeas. In support of this proposition, the concurring opinion cites Ex parte Townsend, in which this
Court held that an applicant had forfeited his improper-stacking-order claim because that claim
should have been raised on direct appeal. 137 S.W.3d 79, 82 (Tex. Crim. App. 2004). This Court’s
holding in Townsend, however, was not specific to stacking claims, but instead was rooted in the
more general principle that habeas corpus is an extraordinary remedy available only when there is
“no other adequate remedy at law.” Id. at 81 (citing Ex parte Drake, 883 S.W.2d 213, 215 (Tex.
Crim. App. 1994)). In Townsend, we reasoned that the applicant in that case had an adequate remedy
at law because he was afforded the opportunity to raise the stacking issue on appeal following his
conviction. Id. (noting that there was “nothing to prevent the applicant from raising this claim on
direct appeal”). Unlike the applicant in Townsend, the applicant in this case could not have
challenged the cumulation order on direct appeal because she waived her appellate rights pursuant
to the plea agreement. Thus, applicant does not have another adequate remedy at law. Id. Habeas
corpus is the only vehicle for consideration of her no-evidence claim.
        Furthermore, this Court has, in other cases, permitted a no-evidence challenge even when an
applicant waived the right of appeal at trial. See, e.g., Ex parte Perales, 215 S.W.3d 418, 419 (Tex.
Crim. App. 2007) (holding that, notwithstanding applicant’s waiver of appellate rights, no-evidence
claim “cognizable” on habeas). We, therefore, conclude that applicant’s no-evidence claim is
cognizable regardless of any waiver of appellate rights through her plea agreement. See id.
                                                                                       Knight - 7

for sufficient evidence, we must deny the application if there is any evidence to support

application of the mandatory-cumulation provision. See id.; T EX. H EALTH & S AFETY C ODE

§ 481.134(h).

       B. Some Evidence Supports the Cumulation Order for Drug-Free-Zone Offense

       In its findings of fact, the trial court stated that no evidence was presented to show that

applicant’s 55-year prison sentence for possession of a controlled substance “was in fact

increased under [Texas Health and Safety Code] Sec. 481.134.” The trial court apparently

presumed that the evidence must show that the jury actually increased the punishment

assessed due to the drug-free-zone finding. We will likewise make that presumption. It is

important to note, however, that direct evidence that a jury actually increased a defendant’s

sentence due to a drug-free-zone finding will never be present because the rules of evidence

prohibit evidence from jurors about their deliberative process. See T EX. R. E VID. 606 (“[A]

juror may not testify as to any matter or statement occurring during the jury’s deliberations,

or to the effect of anything on any juror’s mind or emotions or mental processes, as

influencing any juror’s assent to or dissent from the verdict or indictment.”). For this reason,

assuming that the record must show that the fact finder actually increased a defendant’s

sentence due to the affirmative finding of the drug-free-zone violation, the habeas record will

almost always be limited to a review of the circumstantial and documentary evidence.

        The record shows that the indictment for the drug-possession offense alleged that

applicant “did commit the above alleged offense within 1,000 feet of the premises of a
                                                                                      Knight - 8

school, namely, St. Mary’s school.” The jury found applicant guilty of that offense and made

an affirmative finding that the possession occurred in a drug-free zone. As to the “special

issue drug free zone,” the judgment states, “We, the jury, find it true . . . that the defendant

. . . did commit this offense in, on or within one thousand fee[t] of a school,” and the

signature of the presiding juror follows the statement. The judgment orders, adjudges, and

decrees that applicant “is guilty of Possession of a Controlled Substance in a Drug Free Zone,

Enhanced, the Jury having found that the offense occurred in a Drug Free Zone.” In pertinent

part, the judgment states, “Offense Convicted of: Possession of a Controlled Substance in a

Drug Free Zone, Enhanced” and “Finding on Drug Free Zone: Affirmative.” Because the jury

found true the punishment-enhancement paragraphs, which alleged that applicant had two

prior felony convictions, the minimum punishment for this offense was 25 years in prison,

which was elevated to a minimum of 30 years in prison due to the drug-free-zone finding.

T EX. H EALTH & S AFETY C ODE § 481.134(c). The jury-imposed sentence of 55 years in prison

is almost twice the statutory minimum sentence of 30 years.

       Based on the entire record, some evidence shows that the jury increased applicant’s

punishment due to the drug-free-zone violation because it found the allegation true, the trial

court included that affirmative finding in its judgment, and the jury sentenced applicant at

the higher punishment range. Although applicant may have arguments as to why the evidence

does not show that the jury actually increased her sentence due to the drug-free-zone finding,

those arguments have little weight in a habeas proceeding, which is limited to a review for
                                                                                           Knight - 9

some evidence rather than for sufficient evidence. We hold that some evidence shows that

the punishment for the drug-possession offense was increased due to the jury’s drug-free-

zone affirmative finding. We, therefore, deny relief as to this claim.

                              III. Bill of Costs for Attorney’s Fees

       Applicant’s second ground argues that “no evidence was presented to support the

attorney fee charged by the bill of costs.” Applicant explains that the bill of costs assesses

$1200 for attorney’s fees, but asserts that the evidence failed to show that she was not

indigent. Applicant argues that no evidence shows that she was able to reimburse any part

of the attorney’s fees, and, therefore, the attorney’s fees should not have been included in the

bill of costs. The State responds that it could not find any authority specifically stating that

a claim that no evidence supports an order of reimbursement of attorney’s fee is cognizable

in a habeas proceeding.

       A. Applicable Law

       The then-applicable provision in the Code of Criminal Procedure required a trial court

to order a defendant to pay costs of legal services provided if it determined that she had

financial resources that would enable her to pay. See former T EX. C ODE C RIM. P ROC. art.

26.05(g) (Vernon 2002).3 “[T]he defendant’s financial resources and ability to pay are


3
       That provision read,

       If the court determines that a defendant has financial resources that enable him to
       offset in part or in whole the costs of legal services provided, including any expenses
       and costs, the court shall order the defendant to pay during the pendency of the
       charges or, if convicted, as court costs the amount that it finds the defendant is able
                                                                                   Knight - 10

explicit critical elements in the trial court’s determination of the propriety of ordering

reimbursement of costs and fees” under Article 26.05(g). Mayer v. State, 309 S.W.3d 552,

556 (Tex. Crim. App. 2010). The habeas court did not find, and the State does not contend,

that the trial court predicated its reimbursement order on any finding with respect to the

“critical elements” that a trial court must consider in determining whether to issue that type

of order. See In re Daniel, 396 S.W.3d 545, 548 (Tex. Crim. App. 2013). Rather than

claiming that the attorney’s fees were properly assessed, the State’s response focuses on this

Court’s lack of jurisdiction because this is a habeas case rather than a direct-appeal case.

       On direct appeal, a defendant may properly challenge an order requiring repayment

of attorney’s fees even though that order is not part of a defendant’s sentence. Armstrong v.

State, 340 S.W.3d 759, 765-67 (Tex. Crim. App. 2011) (“[C]ourt costs do not ‘alter the range

of punishment to which the defendant is subject, or the number of years assessed’ and, thus,

are not part of the sentence.”) (quoting Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim. App.

2009)). If this case were before us on direct appeal, we could address the propriety of the

order requiring repayment of attorney’s fees. See id.

       Applicant has raised this issue, however, in an application for a writ of habeas corpus.

We recently held, in In re Daniel, that we lacked jurisdiction to grant habeas relief under

Texas Code of Criminal Procedure Article 11.07 because a challenge to a reimbursement



       to pay.

Former TEX . CODE CRIM . PROC. art. 26.05(g).
                                                                                     Knight - 11

order “in no way implicates the fact or duration of [an applicant’s] confinement pursuant to

his conviction and, therefore, it is not the proper subject of a statutorily governed post-

conviction application for writ of habeas corpus.” See Daniel, 396 S.W.3d at 548. This

ground, therefore, must be dismissed.

        The remaining question is whether we should treat applicant’s habeas application as

a petition for mandamus as we did in Daniel. See id. at 549. We decline to do so. The

difference between the procedural posture of Daniel and this case compels us to take a

different turn at this fork in the road. In Daniel, the district clerk, sua sponte and without

judicial action or approval, executed a bill of costs nine years after the judgment convicting

Daniel. See id. at 546-47. We observed that Daniel lacked an adequate legal remedy because

the bill of costs was entered “long after the applicant could have challenged it in the course

of an ordinary appeal . . . .” Id. at 549. We also observed that Daniel had conclusively

established his right to relief. Id. This Court treated Daniel’s application for a writ of habeas

corpus as a petition for mandamus and granted the petition by ordering the district clerk to

delete the attorney’s fees from the bill of costs. Id. at 547, 549.

       Unlike the applicant in Daniel, this applicant has not shown that she lacks an adequate

legal remedy. This Court has held that, “when a court of appeals and this court have

concurrent, original jurisdiction of a petition for a writ of mandamus against the judge of a

district or county court, the petition should be presented first to the court of appeals unless

there is a compelling reason not to do so.” Padilla v. McDaniel, 122 S.W.3d 805, 808 (Tex.
                                                                                    Knight - 12

Crim. App. 2003) (per curiam). Here, because the judgment incorporated the bill of costs

by reference, a petition for a writ of mandamus would be directed against the district-court

judge, and such a petition must first be decided by the court of appeals. See id. By

comparison, in Daniel, the petition was directed against the district clerk, who independently

charged Daniel with a bill of costs without judicial authorization. Daniel, 396 S.W.3d at 547-

48. Because the action was directed against the district clerk challenging his authority to

enter an order, only this Court had the authority to grant mandamus relief, and, therefore,

Daniel could not have sought or obtained relief from the court of appeals. See id. at 548-49

(citing T EX. C ONST. art. V, § 5(c)). In light of our requirement that a defendant first file a

petition for mandamus against a district-court judge in the court of appeals, we decline to

treat this application as a petition for a writ of mandamus. See Padilla, 122 S.W.3d at 808.

                                       IV. Conclusion

       We deny applicant’s no-evidence challenge to the cumulation order because some

evidence supports it. We dismiss applicant’s challenge to the trial court’s order requiring

repayment of attorney’s fees because that order does not affect the fact or duration of

applicant’s confinement pursuant to her conviction. Finally, because the court of appeals has

concurrent jurisdiction over a petition for a writ of mandamus directed against a district-court

judge, we decline to treat this habeas application as a petition for mandamus.




Delivered: June 26, 2013

Publish
