                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-12-00513-CR


                           PAUL ALLEN THIAS, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 47th District Court
                                    Potter County, Texas
                Trial Court No. 65,069-A, Honorable Dan L. Schaap, Presiding

                                   November 20, 2014

                            MEMORANDUM OPINION
                   Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


       A jury found appellant Paul Allen Thias guilty of burglary of a building, enhanced

by prior convictions, and set punishment at eighteen years’ confinement in prison. The

trial court pronounced sentence accordingly.


       On appeal, appellant does not challenge his conviction and sentence. Rather,

through four issues he complains of various court costs assessed against him through

the judgment. He specifically argues: the statutory consolidated conviction fee taxed

as a court cost resulted in a taking from him of $1.61 in violation of the takings clause of
the Texas Constitution;1 because he was at all times indigent, insufficient evidence

supported taxation of court-appointed attorney’s fees as a cost of court; insufficient

evidence supported taxation of a sheriff’s fee of $130 as a cost of court; and

assessment of a jury fee of $30 was error because the maximum amount authorized by

statute is $20. We will dismiss appellant’s challenge to the jury fee cost as moot. We

will modify the judgment and the trial court’s withholding order. As modified, we will

affirm the judgment of the trial court.


                                          Background


       Appellant’s sentence was imposed on November 15, 2012. The trial court signed

a written judgment on November 20, stating in relevant part:


       The Court ORDERS Defendant to pay all fines, court costs, and restitution
       as indicated as per attached bill of costs.
       The Court ORDERS that upon release from confinement, Defendant
       proceed immediately to the Potter County District Clerk. Once there, the
       Court ORDERS Defendant to pay, or make arrangements to pay, any
       remaining unpaid fines, court costs, and restitution as ordered by the
       Court as per attached bill of costs.
       (Bolding and capitalization in original.)


       Elsewhere the judgment recites, “Court Costs: $ as per attached bill of costs.”

Directly after the judgment in the clerk’s record appears an itemized bill of costs dated

November 21, 2012 in the total amount of $379. Charges relevant to appellant’s issues

on appeal are: “[Consolidated Fees on Conviction2] LGC 133.102 133.00”; “Jury Fee


_______________________
     1
       TEX. CONST. art. I, § 17.
       2
         Local Government Code § 133.102(a)(1) (entitled “Consolidated Fees on
Conviction”) states, “A person convicted of an offense shall pay as a court cost, in

                                              2
CCP 102.004 30.00”; and “Sheriff Fees CCP 120.011 130.00.” All categories of

attorney’s fees on the form show a zero balance. On December 3, 2012, the trial court

signed an order directing the Texas Department of Criminal Justice to withhold the sum

of $379 from appellant’s inmate trust account.


       A May 17, 2013 bill of costs appears in a first supplemental clerk’s record. It

contains the three previously noted cost balances but adds “Attorney Fee(s)-Original

Plea Agreement CCP 26.05 2,737.50.” This bill of costs states a total cost balance

due of $3,014.16.


       A July 16, 2013 bill of costs appears in a second supplemental clerk’s record. It

differs from previous versions in a couple of ways relevant to appellant’s issues. The

bill specifies a jury fee of $20 and increases the attorney’s fee category with the

following entry: “Attorney Fee(s)-Original Plea Agreement CCP 26.05 4,485.72.” The

bill states a cost balance due of $4,696.38 after credit for payment of $158.34.


                                          Analysis


       Appellant contends in his first issue that section 133.102(e)(9) of the Texas Local

Government Code requires him, as a convicted felon, to pay a conviction fee for a

public use in violation of Article I, § 17 of the Texas Constitution. Particularly, appellant

charges that under the statute 1.2090 percent (or $1.61) of the conviction fee of $133

he is obligated to pay is earmarked for a public purpose. Hence, appellant reasons,
_____________________
addition to all other costs . . . $133 on conviction of a felony . . . .”). TEX. LOC. GOV’T
CODE ANN. § 133.102(a)(1) (West Supp. 2014). Of the amount received under this
section, 1.2090 percent is allocated to “an account in the state treasury to be used only
for the establishment and operation of the Center for the Study and Prevention of
Juvenile Crime and Delinquency at Prairie View A&M University.” TEX. LOC. GOV’T
CODE ANN. § 133.102(e)(9) (West Supp. 2014).

                                             3
“$1.61 has been or is ordered to be intentionally taken without compensation” for a

public use.


       The constitutionality of a statute may be challenged in two ways: on its face or as

it is applied to the particular defendant.3 Appellant does not indicate which type of

constitutional challenge he brings. And it matters not, for the record does not indicate

appellant presented his contention to the trial court. His constitutional complaint thus

presents nothing for our review. See Karenev v. State, 281 S.W.3d 428, 434 (Tex.

Crim. App. 2009) (“We conclude that a defendant may not raise for the first time on

appeal a facial challenge to the constitutionality of a statute”); Curry v. State, 910

S.W.2d 490, 496 (Tex. Crim. App. 1995) (as-applied challenges); Penn v. State, No. 14-

13-00263-CR, 2014 Tex. App. LEXIS 10308, at *10-11 (Tex. App.—Houston [14th Dist.]

Sept. 16, 2014, n.p.h.) (mem. op., not designated for publication) (citation omitted) (“A

challenge to the constitutionality of a statute may not be raised for the first time on

appeal”); TEX. R. APP. P. 33.1(a)(1),(2). Accordingly his first issue is overruled.


       Through his second issue, appellant argues insufficient evidence supports the

inclusion of court-appointed attorney’s fees as a court cost taxed against him by the

judgment.4 Appellant received court-appointed counsel for representation in the trial

court and on appeal because of indigence. The record contains no evidence of a

_______________________
       3
         See, e.g., Karenev v. State, 281 S.W.3d 428, 435 (Tex. Crim. App. 2009)
(Cochran, J., concurring) (“A facial challenge is based solely upon the face of the penal
statute and the charging instrument, while an applied challenge depends upon the
evidence adduced at a trial or hearing”).
       4
        In his brief, appellant challenges the propriety of imposing $2,737.50 for court-
appointed attorney’s fees as a cost of court. After appellant filed his brief, the previously
noted July 16, 2013 bill of costs listing attorney’s fees of $4,485.72 was filed.

                                              4
change of financial circumstances. The State concedes error on this point and we

agree the trial court erred by imposing in its judgment an obligation on appellant to

reimburse the county for fees paid his court-appointed counsel. See TEX. CODE CRIM.

PROC. ANN. art. 26.05(g) (West Supp. 2014) (providing for repayment of court-appointed

attorney’s fees that trial court finds defendant is able to pay); TEX. CODE CRIM. PROC.

ANN. art. 26.04(p) (West 2014) (providing that defendant who is determined by court to

be indigent is presumed to remain indigent for remainder of proceedings unless material

change in his financial circumstances occurs); Cates v. State, 402 S.W.3d 250, 251-52

(Tex. Crim. App. 2013) (citing Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010),

and deleting court-appointed attorney’s fees as record showed trial court found

defendant indigent and never found him able to repay court-appointed attorney’s fees).

We sustain appellant’s second issue and will modify the judgment to delete any order

that he repay court-appointed attorney’s fees.


      By his third issue, appellant contends the evidence was insufficient to sustain the

sheriff’s fees assessment of $130. The original and first amended bills of costs merely

recited “Sheriff Fees CCP 102.011 130.” According to the July 16 bill of costs, filed

after appellant’s brief, the sheriff’s fees consist of “Bail Bond filed 8/27/2012   CCP

102.011 10.00”; “Warrant filed 8/28/2012 CCP 102.012 60”; and “Bond Surrender

Warrant filed 9/19/2012 CCP 102.013 60.”


      Without the necessity of their pronouncement in open court, or their inclusion in

the written judgment, Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009), and

irrespective of the defendant’s ability to pay, Williams v. State, 332 S.W.3d 694, 700

(Tex. App.—Amarillo 2011, pet. denied), a person convicted of a criminal offense is

                                            5
required to pay the statutorily-mandated fees found in section 102.021 of the Texas

Government Code.       Those fees include “fees for services of peace officer,” which

specifically include $50 for executing or processing an issued arrest warrant or capias,5

and $10 for taking and approving a bond.6 See Wolfe v. State, 377 S.W.3d 141, 146-

147 (Tex. App.—Amarillo 2012, no pet.) (resolving similar appellate complaint).        “A

statement of an item of cost in a fee record is prima facie evidence of the correctness of

the statement.” TEX. CODE CRIM. PROC. ANN. art. 103.009(c) (West 2006).


      We find the record sufficiently establishes sheriff’s fees of $110, but not the $130

charged.    Nothing explains the $10 increase over the $50 statutorily authorized for

processing warrants nor does the State present controlling authority authorizing the

increased amount charged. We will therefore sustain appellant’s third issue to that

extent and modify the judgment to indicate a sheriff’s fee of $110.


      By his fourth issue appellant argues the bill of costs charges an erroneous jury

fee of $30.    Article 102.004(a) of the Code of Criminal Procedure specifies that a

defendant convicted in a district court shall pay a jury fee of $20. The State does not

take exception with appellant’s claim of error but points out the July 16 bill of costs

corrected the jury fee to $20. We agree, and accordingly dismiss appellant’s fourth

issue as moot.




_______________________
     5
       TEX. GOV’T CODE ANN. § 102.021(3)(B) (West Supp. 2014).
      6
          TEX. GOV’T CODE ANN. § 102.021(3)(E) (West Supp. 2014).

                                            6
                                       Conclusion


      At page 2 of the judgment, the following heading appears:


              “Furthermore, the following special findings or orders apply:”


We modify this section by adding the following:


      “As used herein the term ‘Court Costs’ does not include any amount of
      court-appointed attorney’s fees. The court cost for sheriff’s fees assessed
      by this judgment is $110.”
      The trial court’s December 3, 2012 withholding order is modified so that the

amount withheld from appellant’s inmate trust account by the Texas Department of

Criminal Justice is $349. This sum does not take into consideration any credit due

appellant whether for an amount previously paid or for any sums previously withheld

from his inmate trust account.


      As modified, the judgment of the trial court is affirmed.




                                                  James T. Campbell
                                                      Justice



Do not publish.




                                            7
