Opinion issued August 6, 2013




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                         ————————————
                            NO. 01-11-00862-CR
                         ———————————
                   RAUL AVALOS GUZMAN, Appellant
                                     V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 351st District Court
                          Harris County, Texas
                      Trial Court Cause No. 1187487


              MEMORANDUM OPINION ON REHEARING

     We withdraw our opinion and judgment of April 11, and issue the following

in their stead. Our disposition of the case remains unchanged. Appellant Raul

Avalos Guzman has moved for rehearing and en banc consideration. The panel

denies Guzman’s motion for rehearing. A majority of the court having voted to
deny en banc consideration, the court denies Guzman’s motion for en banc

consideration.

       Guzman pleaded guilty to aggravated sexual assault of a child, and the trial

court assessed punishment at forty-five years’ confinement. 1 The written judgment

ordered that Guzman pay $530 in court costs. On appeal, Guzman contends that

insufficient evidence supports the trial court’s assessment of court costs in the

judgment. Guzman requested a bill of costs in his request for the Clerk’s Record,

but none was produced. We ordered the trial court to provide or create a bill of

costs. The trial court clerk has supplemented the record with a bill of costs. We

hold that sufficient evidence supports the costs recited in the original judgment and

therefore affirm.

                                         Discussion

       Guzman contends that the $530 award of court costs recited in the judgment

is not supported by sufficient evidence. The district clerk must keep a record of

each fee or item of cost charged for a service rendered in a criminal action or

proceeding. TEX. CODE. CRIM. PROC. ANN. art. 103.009(a)(1) (West 2006). If a


1
  Guzman pleaded guilty to another count of aggravated sexual assault of a minor in the same
proceeding, for which he is serving a concurrent forty-five year sentence. Guzman perfected
appeal of that count, pro se, and on appeal, we affirmed the conviction after appointed counsel
filed an Anders brief and was allowed to withdraw. Guzman v. State, 01-09-00934-CR, 2010 WL
4910207 (Tex. App.—Houston [1st Dist.] Dec. 2, 2010, no pet.) (mem. op., not designated for
publication). Guzman failed to timely perfect appeal on this count, and the Court of Criminal
Appeals granted him this out-of-time appeal in a habeas corpus proceeding. See Ex parte
Guzman, No. AP-76613, 2011 WL 3759785, *1 (Tex. Crim. App. Aug. 24, 2011).

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criminal action is appealed, an officer of the court must certify and sign a bill of

costs and send it to the court to which the action is appealed. TEX. CODE CRIM.

PROC. ANN. art. 103.006. We may direct the trial court clerk to supplement the

record with any relevant omitted item. TEX. R. APP. P. 34.5(c); see Cardenas v.

State, 01–11–01123–CR, 2013 WL 1164365, at *4 (Tex. App.—Houston [1st

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

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

judgment. See Mayer v. State, 309 S.W.3d 552, 554–56 (Tex. Crim. App. 2010);

Owen v. State, 352 S.W.3d 542, 548 (Tex. App.—Amarillo 2011, no pet.) (holding

assessment of costs supported by sufficient evidence when authorized by statute

and supported by record). 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. See Mayer, 309 S.W.3d 557.

       We ordered the trial court clerk “to prepare, certify, and file a supplemental

record containing a bill of costs,” and if no bill of costs existed, we ordered “the

trial court clerk or an officer of the court . . . to prepare a bill of costs for inclusion

in the supplemental record.” See Cardenas, 2013 WL 1164365 at *4. In response,

the trial court provided a document entitled “Cost Bill Assessment.” This

assessment itemizes various costs incurred in Guzman’s case and calculates a total

of $530—the amount of costs listed in the judgment. Each item of cost listed in the


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assessment is authorized by statute and supported by the record.

      The assessment lists a “Sheriffs Fee” of $65, which consists of $50 for

“Serving Capias,”2 $5 for “Commitment,” 3 $5 for “Release,”4 and $5 for “Arrest

W/O Warrant/Capias.” 5 Each item of costs is supported by the record. Guzman

was convicted of a felony in district court, and therefore the record supports each

of the following costs listed in the assessment: “Clerks Fee” of 40; 6 “Security Fee”

of $5; 7 “Consolidated Court Costs” of $133; 8 “Jury Reimbursement Fee” of $4;9



2
 See TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(2) (“A defendant convicted of a
felony or a misdemeanor shall pay the following fees for services performed in the
case by a peace officer . . . $50 for executing or processing an issued arrest
warrant, capias, or capias pro fine . . . .”).
3
 See id. art. 102.011(a)(6) (“A defendant convicted of a felony or a misdemeanor
shall pay the following fees for services performed in the case by a peace
officer . . . $5 for commitment or release . . . .”).
4
  See id. (“A defendant convicted of a felony or a misdemeanor shall pay the
following fees for services performed in the case by a peace officer . . . $5 for
commitment or release . . . .”).
5
 See id. art. 102.011(a)(1) (“A defendant convicted of a felony or a misdemeanor
shall pay the following fees for services performed in the case by a peace
officer . . . $5 for . . . making an arrest without a warrant . . . .”).
6
  See TEX. CRIM. PROC. CODE ANN. art. 102.005(a) (“A defendant convicted of an
offense in . . . a district court shall pay for the services of the clerk of the court a
fee of $40.”).
7
  See TEX. CODE CRIM. PROC. ANN. art. 102.017(a) (“A defendant convicted of a
felony offense in a district court shall pay a $5 security fee as a cost of court.”).

                                           4
“DC Records Preservation” of $25; 10 “Support of Indigent Defense”: $2; 11 and

“Support of Judiciary Fee” of $6.12

      Finally, the state charged Guzman with the sexual assault of a child under

section 22.011 of the Texas Penal Code, one of the provisions for which a DNA

record is required pursuant to section 411.1471 of the Texas Government Code.




8
 See TEX. LOC. GOV’T CODE ANN. § 133.102(a)(1) (entitled “Consolidated Fees on
Conviction,” and providing: “A person convicted of an offense shall pay as a court
cost, in addition to all other costs . . . $133 on conviction of a felony . . .).
9
 See TEX. CODE CRIM. PROC. ANN. art. 102.0045(a) (“A person convicted of any
offense, other than an offense relating to a pedestrian or the parking of a motor
vehicle, shall pay as a court cost, in addition to all other costs, a fee of $4 to be
used to reimburse counties for the cost of juror services as provided by Section
61.0015, Government Code.”).
10
  See id. art. 102.005(f) (“A defendant convicted of an offense in a . . . district
court shall pay a fee of $25 for records management and preservation services
performed by the county as required by Chapter 203, Local Government Code.”).
11
   See TEX. LOC. GOV’T CODE ANN. § 133.107(a) (“A person convicted of any
offense, other than an offense relating to a pedestrian or the parking of a motor
vehicle, shall pay as a court cost, in addition to other costs, a fee of $2 to be used to
fund indigent defense representation through the fair defense account established
under Section 79.031, Government Code.”).
12
  See id. § 133.105(a) (“A person convicted of any offense, other than an offense
relating to a pedestrian or the parking of a motor vehicle, shall pay as a court cost,
in addition to all other costs, a fee of $6 to be used for court-related purposes for
the support of the judiciary.”).

                                            5
Therefore, the trial court properly assessed a “DNA Record Fee” of $250. 13 The

sum of these costs is $530, the amount the judgment ordered Guzman to pay.

Therefore, sufficient evidence supports the assessment of costs in the judgment.

See TEX. CODE CRIM. PROC. ANN. art 103.009(c); Owen, 352 S.W.3d at 548.

       Guzman contends that permitting a bill of costs to be produced after the

judgment denies him due process in that he may not object to any costs assessed in

the bill of costs. However, Guzman has not been denied an opportunity to

challenge the costs listed in the bill of costs. See Cardenas, 2013 WL 1164365 at

*4; Thomas v. State, No. 01-12-00487-CR, 2013 WL 1163980, at *2 (Tex. App.—

Houston [1st Dist.] March 21, 2013, no pet. h.). A contemporaneous objection in

the trial court is not required to contest costs on direct appeal. See Mayer, 309

S.W.3d at 555–56. Guzman therefore was not procedurally prejudiced by his

alleged inability to raise his objections in the trial court.

       Despite the lack of a written bill of costs, completely apart from the

availability of direct appeal, Guzman could also seek correction of an error in costs

by moving to correct costs in the trial court. See TEX. CODE CRIM. PROC. ANN.

art. 103.008(a) (“On the filing of a motion by a defendant not later than one year

after the date of the final disposition of a case in which costs were imposed, the


13
  See TEX. CRIM. PROC. CODE ANN. art. 102.020(a)(1) (“A person shall pay as cost
of court: (1) $250 on conviction of an offense listed in Section 411.1471(a)(1),
Government Code.”).
                                             6
court in which the case is pending or was last pending shall correct any error in the

costs.”). A civil post-judgment hearing to collect costs provides still another due

process avenue to prevent erroneous deprivation via clerical or other errors. See

Harrell v. State, 286 S.W.3d 315, 320–21 (Tex. 2009).




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                                    Conclusion

      We hold that sufficient evidence supports the assessment of costs in the

judgment. We therefore affirm the judgment of the trial court. We deny any

pending motions as moot.




                                               Jane Bland
                                               Justice

Panel consists of Justices Jennings, Bland, and Massengale.

Do not publish. TEX. R. APP. P. 47.2(b).




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