                                     NO. 12-16-00308-CR

                             IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                        TYLER, TEXAS

SHATANEE HOWARD,                                     §       APPEAL FROM THE
APPELLANT

V.                                                   §       COUNTY COURT AT LAW NO. 2

THE STATE OF TEXAS,
APPELLEE                                             §       SMITH COUNTY, TEXAS

                                     MEMORANDUM OPINION
       Shatanee Howard appeals from her conviction for possession of marijuana. After the trial
court denied her motion to suppress, Appellant pleaded guilty to the possession of less than two
ounces of marijuana.1 Appellant was placed on two years deferred adjudication. As a condition
of her plea, Appellant retained the right to appeal the trial court’s denial of her motion to
suppress. In three issues, Appellant contends the trial court erred in (1) not suppressing certain
evidence, (2) imposing court costs not supported by a bill of costs, and (3) imposing court costs
unsupported by legally sufficient evidence. We affirm.


                                             BACKGROUND
       On October 13, 2015, Tyler Police Officer Luis Aparicio initiated a traffic stop after
narrowly avoiding a head on collision with a vehicle whose driver, Frederick Gholston, failed to
yield the right-of-way. Appellant and another individual were Gholston’s passengers. Gholston
admitted drinking one twenty four ounce can of beer. Officer Aparicio suspected that Gholston
was intoxicated and that there could be an open container of alcohol in the vehicle. He asked
Gholston to exit the vehicle so that he could administer a field sobriety test. When Gholston
exited the vehicle, Officer Aparicio saw a black plastic bag on the floorboard of the driver’s side.

       1
           TEX. HEALTH & SAFETY CODE ANN. § 481.121(a)(b)(1) (West 2017).
Officer Aparicio thought the black bag was like those used by convenience stores to package
alcohol.
       A driver’s license check revealed that Gholston’s license had been suspended. However,
Gholston passed his field sobriety test, and Officer Aparicio concluded that he was not
intoxicated. The officer issued Gholston a warning ticket for driving with license suspended.
When Officer Aparicio handed Gholston the warning ticket, he asked Gholston if he could
search the vehicle. Gholston replied, “go ahead.” Shortly thereafter, he told the officer that there
was an open container in the back of the vehicle.
       While Gholston, Appellant, and another passenger stood by the patrol car, Officer
Aparicio searched the passenger compartment for open alcoholic beverage containers. He found
Gholston’s beer can behind the driver’s seat. He also found another open alcoholic beverage
container and an orange crush can. A striped bag large enough to hold a beer can was on the
back seat. When the officer unzipped the bag to look for containers, a strong odor of marijuana
came from the bag. Inside the bag, he found two cigar packs, one of which contained a
marijuana cigar.     Officer Aparicio returned to his patrol car and asked to whom the bag
belonged. Appellant said it was her bag. Officer Aparicio arrested her for possession of
marijuana. No one was cited for the open containers.
       The trial judge made the following findings relevant to this issue:


       5. When the driver exited the vehicle, Officer Aparicio observed a small black bag on the driver-
       side floorboard that he identified in his experience as a type commonly used by convenience stores
       to package alcoholic beverages.

       6. The driver of the vehicle, Frederick Gholston, admitted to Officer Aparicio that he had
       consumed one 24-ounce beer can the might of October 13th, 2015, before being stopped.

       8. Based on the time of night, the driver’s statement that he recently consumed a can of beer, and
       the black bag observed on the driver-side floorboard of the vehicle, Officer Aparicio suspected
       that there may be an open container of beer inside the suspect vehicle.

       12. Frederick Gholston consented to Officer Aparicio searching the black bag located in his
       vehicle.

       14. Before conducting a search of the suspect vehicle, Officer Aparicio asked the driver where the
       beer cans were located. The driver, Frederick Gholston, responded that the beer cans were located
       in the back of the vehicle.


This appeal followed.




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                       TRIAL COURT’S FAILURE TO SUPPRESS EVIDENCE
       In her first issue, Appellant contends the trial court erred in not suppressing the evidence
of marijuana that she claims was the product of an illegal search.
Standard of Review
       An appellate court affords almost total deference to a trial judge’s determination of
historical facts. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). Appellate
courts afford the same amount of deference to trial courts’ rulings on application of law to fact
questions if the resolution of those questions depends upon an evaluation of credibility and
demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). If, as in this case, the
trial judge makes express findings of fact, we view the evidence in the light most favorable to the
trial judge’s ruling to determine whether the evidence supports these factual findings. Valtierra,
310 S.W.3d at 447.
       An appellate court reviews de novo the application of the law of search and seizure to
those facts. Id. The trial court’s ruling will be sustained if supported by the record and correct
on any theory of law applicable to the case. Id. at 447-48.
Applicable Law
       The Fourth Amendment forbids unreasonable searches and seizures by government
officials. See U.S. CONST. AMEND IV. However, a warrantless search of a vehicle is reasonable
if law enforcement officials have probable cause to believe that the vehicle contains contraband.
Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). Probable cause exists when the
known facts and circumstances are sufficient to warrant a man of reasonable prudence in the
belief that either contraband or evidence of a crime will be found. Id.
       A search pursuant to and within effective consent is reasonable despite the absence of a
search warrant and evidence amounting to probable cause. Juarez v. State, 758 S.W.2d 772, 776
(Tex. Crim. App. 1988). Consent must be positive and unequivocal. Meeks v. State, 692
S.W.2d 504, 509 (Tex. Crim. App. 1985). An officer may solicit consent to search after a traffic
stop and resolution of the traffic matter if it is reasonable under the circumstances and officers
have not conveyed a message that compliance is required. Leach v. State, 35 S.W.3d 232, 235-
36 (Tex. App.—Austin 2000, no pet.). A police officer may approach a vehicle without probable
cause or reasonable suspicion to ask questions or to even request a search. See Florida v. Royer,
460 U.S. 491, 497-98, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229 (1983).



                                                 3
       A person commits an offense if the person knowingly possesses an open alcoholic
beverage container in the passenger area of a motor vehicle located on a public highway. TEX.
PENAL CODE ANN. § 49.031(b) (West 2011).
Discussion
       Appellant insists that the search was illegal because Officer Aparicio was not justified in
prolonging the stop after its purpose was completed or reasonably should have been completed.
Appellant argues that the officer’s authority to detain the driver ceased upon his giving Gholston
the warning ticket. Therefore, the subsequent search and seizure were not lawful, and the trial
court erred in not suppressing the evidence of the search.
       Appellant seeks support from the holding of the court of criminal appeals in Davis v.
State, 947 S.W.2d 240 (Tex. Crim. App. 1997). Martin Davis was stopped on suspicion of
driving while intoxicated. Davis, 947 S.W.2d at 241. He did not smell of an alcoholic beverage,
and he told the officers he was tired, not drunk. Id. The officers quickly determined that he was
not intoxicated but continued to question Davis and his passenger separately. Id. Davis had no
history of convictions and his driver’s license was valid. Id. A pat down search of Davis
discovered no weapons or drugs. Id. Twice during his prolonged questioning by the officers, he
refused their consent to search his vehicle. Id. at 241 n.1. Finally, the officers told Davis that he
was free to leave but the vehicle was being detained for investigation. Id. at 241. A canine unit
was called to the scene. Id. A narcotics dog made a positive alert on the trunk where the officers
found a suitcase of marijuana. Id. The trial court denied Davis’s motion to suppress. Id. The
court of appeals affirmed. Id. at 242. The court of criminal appeals reversed, holding that
continued detention of the vehicle was not reasonable. Id. at 246. Therefore, Davis’s detention
was unjustified, and the marijuana should have been suppressed. See id.
       As in Davis, Officer Aparicio promptly determined that Gholston was not intoxicated.
However, as the State points out, the similarities end there. In this case, Gholston admitted to
drinking a twenty four ounce can of beer. The officer had reason to suspect that Gholston had an
open container of alcohol in the passenger area of his car in violation of section 49.031 of the
penal code. TEX. PENAL CODE ANN. § 49.03. Seconds after receiving the warning, Gholston
consented to the search of the vehicle, and quickly admitted that his beer can was in the back
seat. Based on this admission, Officer Aparicio had probable cause to search the passenger
compartment for open alcoholic beverage containers.



                                                 4
        Appellant also relies on Rodriguez v. United States, 135 S. Ct. 1609, 191 L.Ed.2d 492
(2015). In Rodriguez, Officer Struble gave Rodriguez a warning ticket for driving on the
shoulder. Rodriguez, 135 S. Ct. at 1612-13. Next, Officer Struble asked permission to walk his
dog around the vehicle. Id. at 1613. When Rodriguez refused, Struble detained him until a
second officer arrived. Id. Struble then retrieved his dog who alerted to the presence of drugs in
the vehicle. Id. The ensuing search revealed over fifty grams of amphetamine. Id. Seven or
eight minutes had elapsed between Rodriguez’s receipt of the warning ticket and the drug dog’s
alert. Id.
        The trial court found that Rodriguez’s continued detention was not justified by reasonable
suspicion, but concluded that the extension of the stop by seven to eight minutes was only a de
minimus intrusion in Rodriguez’s Fourth Amendment rights and therefore permissible. Id. at
1613-14. The Circuit Court affirmed. Id. at 1614. However, the Supreme Court held that,
absent reasonable suspicion, police extension of a traffic stop in order to carry out a drug sniff
violated the Constitution’s shield against unreasonable seizures. Id. at 1615. A traffic stop
becomes unlawful when prolonged beyond the time reasonably required to complete the mission
of issuing the traffic ticket. Id. at 1614-15.
        In Rodriguez, Officer Struble had no reasonable suspicion to prolong the detention. In
the instant case, the stop’s extension was justified by Officer Aparicio’s reasonable suspicion
that there were open containers in the car. Moreover, Gholston admitted that there were beer
cans in the vehicle. Almost immediately after handing Gholston the warning ticket, Officer
Aparicio asked to search the vehicle. Gholston said, “go ahead.” Before searching the vehicle,
the officer asked if there was anything in the vehicle and Gholston replied that his can was in the
back seat. This admission gave the officer probable cause to conduct a search to locate open
containers of alcohol. Officer Aparicio found two open alcoholic beverages that were not
entirely empty. He opened the bag on the back seat and immediately smelled marijuana. This
gave him probable cause to search the interior pockets of Appellant’s bag, in which he found the
marijuana cigar.
        From our review of the record, we conclude that the evidence clearly supports the trial
judge’s findings of fact and mixed questions of law and fact. The trial court did not err in
denying Appellant’s motion to suppress. See Valtierra, 310 S.W.3d at 447-48. Appellant’s first
issue is overruled.



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                                             COURT COSTS
        In her second issue, Appellant claims that the trial court erred in imposing court costs not
supported by a statutorily required bill of costs. In this case, the record was supplemented to add
a bill of costs to the record. In her third issue, Appellant contends the evidence is legally
insufficient for the trial court to assess court costs in this case.
Applicable Law
        The Texas Code of Criminal Procedure requires that a judgment of conviction order a
defendant to pay court costs. TEX. CODE CRIM. PROC. ANN. arts. 42.15 (West Supp. 2016), 42.16
(West 2006).      Only statutorily authorized court costs may be assessed against a criminal
defendant. See id. art. 103.002 (West 2006). The clerk of the trial 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. Id. art. 103.009(a), (c) (West 2006); see Owen v. State, 352 S.W.3d 542, 548 (Tex.
App.—Amarillo 2011, no pet.). If a criminal action is transferred or 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 2015). Article 103.001(b) states that a cost is not payable
by the person charged with the cost until a written bill is produced containing the items of costs
and signed by the officer who charged the cost or who is entitled to receive payment for the
costs. Id. art. 103.001(b) (West Supp. 2016). Court costs, as reflected in a certified bill of costs,
need not be orally pronounced or incorporated by reference to be effective, because court 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. Armstrong v. State, 340 S.W.3d 759, 766-67
(Tex. Crim. App. 2011) (citing Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009)).
        A criminal defendant may challenge the bases for court costs for the first time on appeal.
Johnson v. State, 423 S.W.3d 385, 390-91 (Tex. Crim. App. 2014). In most instances, the
appellant would have no basis to object because no itemized bill is available when the sentence is
imposed in open court and the judgment generally contains only an aggregate figure. Id. An
omitted bill of costs can be prepared and added to the record by a supplemental clerk’s record.
Id. at 392. A document that contains an itemized list of court costs, the clerk’s seal, and a deputy
clerk’s signature satisfies the requirements for a bill of costs under Article 103.001. Id. at 393.
A bill of costs prepared after a criminal trial need not be presented to the trial court because it



                                                    6
has no bearing on the defendant’s guilt or sentence. Id. at 394. The fact that most court costs are
mandated by statute dispenses with the need for an ordinary sufficiency review. Id. at 388-90.
An appellate court reviews “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.” Id. at 390.
Discussion
        Appellant argues that the record on appeal did not contain a bill of costs, although one
was requested, and that the court costs in the judgment are without support in the record.
Without a timely bill of costs, she insists she had no ability to challenge the legal basis for the
court costs assessed. She also insists that supplementation of the appellate record with a certified
bill of costs should not be permitted. Appellant contends that the judgment must be modified to
delete the unsupported costs.
        Appellant relies on Johnson v. State, 389 S.W.3d 513 (Tex. App.—Houston [14th Dist.]
2012), aff’d as modified, 423 S.W.3d 385 (Tex. Crim. App. 2014). In Johnson, the record
contained no bill of costs except for a computer printout filed while the case was on appeal.
Johnson, 309 S.W.3d at 515 & n.1. The court also noted that there was no “indication that this
printout was ever brought to the attention of the trial judge.” Id. The Fourteenth Court of
Appeals found that the trial court erred in entering a specific dollar amount as to court costs since
a subsequently filed computer printout did not constitute valid support for the costs imposed. Id.
at 516-17. The court reformed the trial court’s judgment to delete the specific amount of costs.
Id. at 517.
        In this case, Appellant ignores the fact that the Court of Criminal Appeals restored the
court costs deleted by the court of appeals and clarified several questions surrounding appellate
review of court costs. Johnson, 423 S.W.3d at 388-90. The court of criminal appeals’s opinion
undermines the basis for Appellant’s argument. Contrary to Appellant’s argument, the court of
criminal appeals held that (1) an omitted bill of costs can be prepared and added to the record by
a supplemental clerk’s record; (2) a bill of costs prepared after a criminal trial does not need to
be presented to the trial judge because it has no bearing on the defendant’s guilt or sentence; and
(3) a typical evidentiary sufficiency review is unnecessary for challenges to assessed court costs
because court costs are mandated by statute. Id. at 388, 392, 394. The court of criminal appeals




                                                 7
instructed appellate courts to review court costs to determine if there is a basis for assessing
them. Id. at 390.
         In the instant case, an itemized list of court costs, bearing the clerk’s seal and the deputy
clerk’s signature, was prepared and added to the record after the appeal was filed. Article
103.001 is satisfied. See TEX. CODE CRIM. PROC. ANN. art 103.001. We have verified the
statutory basis for each of the nineteen items of court cots assessed against Appellant. See, e.g.,
Ireland v. State, No. 03–14–00616–CR, 2015 WL 4914982, at *3 n.3 (Tex. App.–Austin Aug.
12, 2015, no pet.) (mem. op., not designated for publication) (identifying statutory sources for
assessment of fees in bill of costs); see also Golden v. State, No. 12-16-00278-CR, 2017 WL
3405201 at *3 n.1 (Tex. App.—Tyler Aug. 9, 2017, no pet. h.) (mem. op., not designated for
publication). Appellant’s second and third issues are overruled.


                                                   DISPOSITION
         Having overruled Appellant’s three issues, we affirm the judgment.


                                                                                BILL BASS
                                                                                 Justice


Opinion delivered September 20, 2017.
Panel consisted of Hoyle, J., Neeley, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.




                                              (DO NOT PUBLISH)




                                                           8
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                        SEPTEMBER 20, 2017


                                          NO. 12-16-00308-CR


                                      SHATANEE HOWARD,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                            Appeal from the County Court at Law No 2
                        of Smith County, Texas (Tr.Ct.No. 002-83318-15)

                        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.
                    Bill Bass, Justice.
                    Panel consisted of Hoyle, J., Neeley, J. and Bass, Retired J., Twelfth Court of Appeals,
                    sitting by assignment.
