                  NOS. 07-09-0301-CR, 07-09-0302-CR, 07-09-0303-CR,
                    07-09-0304-CR, 07-09-0305-CR, 07-09-0306-CR

                                 IN THE COURT OF APPEALS

                         FOR THE SEVENTH DISTRICT OF TEXAS

                                          AT AMARILLO

                                             PANEL D

                                        AUGUST 20, 2010




                         VIENGKHONE SIKALASINH, APPELLANT

                                                 v.

                             THE STATE OF TEXAS, APPELLEE



               FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

           NOS. 58,210-A, 58,211-A, 58,212-A, 58,213-A, 58,216-A, 58,217-A;
                          HONORABLE HAL MINER, JUDGE



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


                                             OPINION

       Appellant, Viengkhone Sikalasinh,1 was convicted by a jury of three counts of

aggravated assault with a deadly weapon, one count of aggravated assault with a


1
 We note that while the judgment in each case states Appellant's first name as "Viengkhone," the
indictments in Cause Nos. 58,210-A, 58,211-A, 58,212-A and 58,213-A state Appellant's first name as
"Vienkhone." Where names are substantially the same in character and pronunciation, though slightly
varied in spelling, under the doctrine of idem sonans, the variance is immaterial. Jenke v. State, 487
S.W.2d 347 (Tex.Crim.App. 1972).
deadly weapon--family member, and two counts of aggravated robbery, each enhanced

by a prior felony conviction.2 He was sentenced by a jury to six concurrent sentences of

twenty, twenty, ten, sixty, fifteen, and fifteen years confinement, respectively. Appellant

asserts three issues on appeal: (1) whether the trial court erred by requiring him to pay

court-appointed attorney fees as a cost; (2) whether there was legally sufficient

evidence that he was able to pay court-appointed attorney fees as a cost; and (3)

whether he should be required to pay transportation, meal and lodging expenses of a

non-resident witness who was neither an expert witness nor a peace officer. We modify

the trial court's judgment in Cause No. 58,210-A to clarify that payment of $16,510.26 in

court-appointed attorney fees and $537.05 in witness fees is not a part of the court

costs ordered in the case and affirm the judgment as modified.                The judgments in

Cause Nos. 58,211-A, 58,212-A, 58,213-A, 58,216-A, and 58,217-A are affirmed.


                                           Background


       On October 1, 2008, Appellant was indicted for aggravated assault with a deadly

weapon enhanced in three criminal actions;3 aggravated assault with a deadly weapon-

-family member in a single criminal action;4 and aggravated robbery in two criminal

actions.5



2
See Tex. Penal Code Ann. § 22.02(a)(2) (Vernon Supp. 2009) and. § 29.03 (Vernon 2009).
3
Cause Nos. 58,210-A; 58,211-A; 58,212-A.
4
Cause No. 58,213-A.
5
Cause No. 58,216-A; 58,217-A.

                                                2
       During the course of the pretrial proceedings, Appellant filed three affidavits

requesting court-appointed counsel. His financial information showed he was too poor

to employ counsel, and the trial court granted his requests based upon financial need.6


       The State's six criminal actions against Appellant were consolidated on August

10, 2009, and tried before a jury over the next four days. During its case-in-chief, the

State called the manager of the apartment complex where Appellant's crime spree had

occurred. At the time of trial, this particular witness had moved to McLennan County,

Texas. Thus, the State subpoenaed her to trial as an out-of-county or non-resident

witness.


       Appellant was convicted of all charges and sentenced in accordance with the

jury's verdict. Subsequently, the trial court approved a Witness Fee Claim for the non-

resident witness's trial attendance totaling $537.05 for lodging, meal, and travel

expenses incurred.7 The trial court also approved an Attorney Fee Voucher submitted

by Appellant's court-appointed attorney for services rendered from July 10, 2009 until

the end of trial totaling $16,510.26.


       On September 1, 2009, the trial court signed Judgments of Conviction by Jury in

each of the six cases consolidated for trial. In each case, the summary portion of the

judgment reflects "Court Costs: see attached," while the narrative portion of the
6
 At various stages of the pretrial proceedings, two of Appellant's appointed-counsel moved to withdraw
from representation. Both motions were granted and new counsel was appointed.
7
 The Witness Fee Claim form, which is signed by the non-resident witness and approved by the trial
judge, requests the Comptroller of Public Accounts to reimburse Potter County, pursuant to Tex. Code of
Crim. Proc. Ann. article 35.27 (Vernon 2006), for expenses incurred by the witness, but paid by Potter
County, on account of her attendance as a witness in Appellant's case.

                                                  3
judgment orders Appellant to pay court costs "as indicated above."                     In the Clerk's

Record from Cause No. 07-09-0301-CR (trial court Cause No. 58,210-A), the first page

following the judgment is a certified bill of costs, also dated September 1, 2009, that

reflects "Attorney Fees (Court Appointed) $16,510.26" and "Witness Fee $537.05." In

the remaining five criminal actions, Cause Nos. 07-09-0302-CR, 07-09-0303-CR, 07-09-

0304-CR, 07-09-0305-CR and 07-09-0306-CR (trial court Cause Nos. 58,211-A,

58,212-A, 58,213-A, 58,216-A, and 58,217-A, respectively), the first page following the

judgment in the Clerk's Record is a certified bill of costs reflecting no attorney's fees and

no witness fees.


       Issues 1 & 2 -- Court-Appointed Attorney Fees


       Under article 26.05 of the Texas Code of Criminal Procedure, the trial court has

authority to order reimbursement of appointed attorney fees if the court determines that

a defendant has financial resources that enable him to offset, in part or in whole, the

cost of legal services provided. See Tex. Code Crim. Proc. Ann. art. 26.05(g) (Vernon

Supp. 2009).      The record before us, however, does not contain a determination or

finding by the trial court that Appellant had any financial resources or was "able to pay"

any appointed attorney fees.8          In fact, subsequent to the judgment, the trial court

appointed an attorney to handle Appellant's appeal due to his indigency.




8
 Unless a material change in his financial resources occurs, once a criminal defendant has been found to
be indigent, he is presumed indigent for the remainder of the proceedings. Tex. Code Crim. Proc. Ann.
art. 26.04(p) (Vernon Supp. 2009).

                                                   4
        Prior to filing his appeal, Appellant did not have the benefit of the recent opinion

by the Court of Criminal Appeals holding that, without record evidence to demonstrate a

defendant's financial resources to offset the costs of legal services, a trial court errs if it

orders reimbursement of court-appointed attorney fees. Mayer v. State, 309 S.W.3d

552 (Tex.Crim.App. 2010). In light of this recent ruling, the State candidly concedes

that the court-appointed attorney fees here, $16,510.26, should not have been included

in the Judgment as costs to be paid by Appellant because there is no record evidence

indicating Appellant is "able to pay." We agree. Accordingly, Appellant's issues one

and two are sustained as to Cause No. 07-09-0301-CR (trial court Cause No. 58,210-

A), but are overruled as to the remaining five actions.


        Issue 3 -- Witness Fees


        Appellant also asserts he is not liable for the non-resident witness fees because

there is no authority for him to be ordered to pay, as costs of court, witness fees paid

pursuant to article 35.279 of the Texas Code of Criminal Procedure.10                      The State

contends that article 102.002 of the Texas Code of Criminal Procedure authorizes the

9
 Article 35.27 states, in pertinent part, as follows:

        Every person subpoenaed by either party or otherwise required or requested in writing by
        the prosecuting attorney or the court to appear for the purpose of giving testimony in a
        criminal proceeding who resides outside the state or the county in which the prosecution
        is pending shall be reimbursed by the state for the reasonable and necessary
        transportation, meal, and lodging expenses he incurs by reason of his attendance as a
        witness at such proceeding.

See Tex. Code Crim. Proc. Ann. art. 35.27, § 1(a) (Vernon 2006).


10
  For convenience, we will cite provisions of the Texas Code of Criminal Procedure throughout the
remainder of this opinion simply as "article _______."

                                                        5
trial court to assess witness fees paid pursuant to article 35.27 as costs of court.    We

disagree with the State.


         Every person subpoenaed for the purpose of giving testimony in a criminal

proceeding who resides outside the county in which the prosecution is pending is

entitled to be reimbursed by the state for reasonable and necessary transportation,

meal, and lodging expenses incurred by that witness by reason of his or her attendance

as a witness. See art. 35.27, § 1(a). Where a county has paid those expenses, the

county is entitled to reimbursement by the state as an assignee of the witness. See art.

35.27 § 7. Here, pursuant to article 35.27, § 7, Potter County was paid the sum of

$537.05 as compensation for the expenses incurred in connection with the attendance

of the non-resident witness in Appellant's case. At issue here is whether the trial court

properly assessed the amount of that reimbursement against Appellant as costs of

court.


         Article 35.27 provides a mechanism for the reimbursement of witness expenses;

it does not provide for the assessment of those expenses as costs of court. Therefore,

the State relies upon article 102.002 as authority for assessment of "witness fees" as

costs of court. Because article 102.002 does not expressly provide for the assessment

of article 35.27 payments as costs of court, resolution of this issue involves the statutory

construction of article 102.002.




                                             6
      Standard of Review


      Issues governed by statutory construction are questions of law for the reviewing

court to decide.   City of Lubbock v. Adams, 149 S.W.3d 820, 826-27 (Tex.App.--

Amarillo 2004, pet. denied). Because proper statutory construction is a question of law,

a trial court has no discretion in rendering an interpretation; Walker v. Packer, 827

S.W.2d 833, 840 (Tex. 1992), and no particular deference need be given to the trial

court's findings by the reviewing court. Bandera v. Indep. Sch. Dist. v. Hamilton, 2

S.W.3d 367, 370 (Tex.App.--San Antonio 1999, pet. denied). Thus, when we construe

a statute, we conduct a de novo review; Texas Dep't of Transp. v. Needham, 82 S.W.3d

314, 318 (Tex. 2002), with our primary objective being to ascertain and give effect to the

Legislature's intent. Texas Dept. of Protective and Regulatory Services v. Mega Child

Care, 145 S.W.3d 170, 176 (Tex. 2004).          We construe a statute as written and, if

possible, ascertain the legislative intent from the language used in the statute. Union

Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex. 1994). Thus, we begin with the

plain and common meaning of the statute's words. Texas Dept. of Transp. v. City of

Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004).


      Article 102.002 - Texas Code of Criminal Procedure


      Chapter 102 of the Texas Code of Criminal Procedure, entitled "Costs Paid by

Defendants," provides a general framework for the assessment of costs by a trial court




                                            7
in a criminal proceeding.11         Under Subchapter A, entitled "General Costs," we find

article 102.002 dealing with "witness fees."


        Article 102.002 states as follows:

        (a) Repealed by Acts 1999, 76th Leg., ch. 580, Sec. 11(a), eff. Sept. 1,
        1999.

        (b) The justices of the peace and municipal courts shall maintain a record
        of and the clerks of district and county courts and county courts at law
        shall keep a book and record in the book:

                (1) the number and style of each criminal action before the
                court;

                (2) the name of each witness subpoenaed, attached, or
                recognized to testify in the action; and



11
  The overall framework for the assessment of costs by a trial court in a criminal proceeding is both
convoluted and confusing. Part of this confusion is created by the fact that customarily bills of costs
prepared by court clerks do not reflect the authority by which those costs are assessed. Adding to the
confusion is the plethora of overlapping legislatively enacted provisions dealing with costs to be paid by
criminal defendants. See, e.g., Tex. Alco. Bev. Code Ann. § 106.12 (Vernon 2007); Tex. Bus. & Com.
Code Ann. § 3.506 (Vernon Supp. 2009); Tex. Bus. Org. Code Ann. § 10.365 (Vernon Pamph. Supp.
2009); Tex. Code Crim. Proc. Ann. arts. 17.42, 17.43, 17.441, 37.073, 42.037, 42.12, 42.22, 45.0216,
45.026, 45.041, 45.051, 45.055, 45.0511(c-1), 45.0511(f)(1 - 2), 45.052, 45.203, 62.353, 102.001 -
102.072, 103.0031 (Vernon 2006 & Supp. 2009); Tex. Edu. Code Ann. §37.011 (Vernon Supp. 2009);
Tex. Fam. Code Ann. §§ 8.262, 8.267, 8.302, 8.303, 45.106, 53.03, 54.032, 54.0411, 54.0461, 54.0462,
54.061, 81.003, 108.006, 110.002, 110.004, 110.005, 158.319, 158.403, 158.503, 160.762, 232.013
(Vernon 2006, 2008 & Supp. 2009); Tex. Gov't Code Ann. §§ 25.0593, 25.0594, 25.1572, 25.2223,
30.00014, 30.00147, 41.258, 51.601, 51.702 - 51,703, 54.313, 54.403,54.745, 54.663, 54.913, 54.983,
54.954, 54.1116, 76.015, 82.0361, 102.001 - 103.033, 411.081 (Vernon 2005 & Supp. 2009); Tex. Health
& Safety Code Ann. §§ 161.255, 469.004, 821.023 (Vernon 2010); Tex. Hum. Res. Code Ann. § 152.0522
(Vernon 2001); Tex. Local Gov't Code Ann. §§ 118.131, 132.002, 132.003, 133.101 - 133.154, 191.007
(Vernon 2008 & Supp. 2009); Tex. Parks and Wildlife Code Ann. §§ 12.110, 12.308 (Vernon Supp. 2009);
Tex. Transp. Code Ann. §§ 284.2031, 521.026, 521.048, 542.403, 542.407, 545.412, 548.605, 601.263,
706.006 (Vernon 1999, 2007 & Supp. 2009) (not intended as an exhaustive list). We encourage court
clerks to draft their bills of costs in a manner that would allow a reviewing court to determine the legal
authority upon which a particular fee is based. Furthermore, as pointed out by the concurring opinion of
Justice Campbell, as it currently exists, article 102.002 does not provide for the assessment of any fees.
Accordingly, we encourage the Legislature to consider clarification of this article in particular and the
entire court costs scheme in general.

                                                    8
                (3) whether the witness was a witness for the state or for the
                defendant.

         (c) Except as otherwise provided by this subsection, a defendant is liable
         on conviction for the fees provided by this article for witnesses in the
         defendant's case. If a defendant convicted of a misdemeanor does not
         pay the defendant's fines and costs, the county or municipality, as
         appropriate, is liable for the fees provided by this article for witnesses in
         the defendant's case.

         (d) If a person is subpoenaed as a witness in a criminal case and fails to
         appear, the person is liable for the costs of an attachment, unless he
         shows good cause to the court why he did not appear.

(Emphasis added).

         Pursuant to article 102.002, in order for a defendant to be liable for witness fees,

three events must occur: (1) the defendant must be convicted, (2) the witness must

have testified in the "defendant's case," and (3) the fees must be "provided by this

article," i.e., article 102.002.    See art. 102.002(c).      Here, clearly Appellant was

convicted; therefore, the two questions remaining are (1) whether or not the witness

testified in the “defendant's case,” and (2) whether the fees paid were provided by

article 102.002.


         As to the first question, Appellant contends that because the non-resident

witness testified in the State's case-in-chief only, she did not testify in the "defendant's

case."    The State disagrees, contending that the article applies because the non-

resident witness was a witness in the prosecution of the defendant's case. Based upon

our analysis of the second question pertaining to whether the fees were provided by

article 102.002, we need not decide this question.



                                              9
       As to the second question, Appellant contends the plain language of article

102.002 does not provide for the assessment of non-resident witness fees paid

pursuant to article 35.27. The State counters by contending that it does.


       Prior to its repeal in 1999, section (a) of article 102.002 provided:12


       A person subpoenaed, attached, or recognized as a witness, other than a
       witness entitled to receive compensation under Article 35.27 of this Code,
       is entitled to receive $1.50 per day in attendance in court and six cents per
       mile traveling to or returning from the trial.         In order to receive
       compensation under this article, the witness, or another credible person
       representing the witness, must sign an affidavit stating the number of days
       the witness attended the court and the number of miles the witness
       traveled to and from the place of trial. The affidavit must be filed with the
       papers of the case.

(Emphasis added.)

        Therefore, prior to the repeal of subparagraph (a), the plain language of article

102.002 did not authorize a trial court to assess non-resident witness fees paid pursuant

to article 35.27 as costs of court.         Therefore, the question becomes, by repealing

subparagraph (a), did the Legislature intend to remove that exclusion?


       Any analysis of the Legislature's intent in repealing subparagraph (a) is

complicated by the fact that in repealing that subparagraph, the Sixty-Sixth Legislature

also repealed subparagraphs (b) and (c), and then without making reference to the

repeal, amended subparagraphs (b) and (c) to include procedures governing the

prosecution and administration of misdemeanor offenses in municipal courts. See Act

of May 22, 1999, 76th Leg., R.S., ch. 580, § 11(a), 1999 Tex. Gen Laws. 3119, 3123,


12
 See Act of May 17, 1985, 69th Leg., R.S., ch. 269 § 1, 1985 Tex. Gen. Laws 1300, 1302.

                                                 10
approved June 18, 1999, effective September 1, 1999 (repealing subparagraphs (a), (b)

and (c)); See Act of May 30, 1999, 76th Leg., R.S., ch. 1545, § 63, 1999 Tex. Gen. Laws

5314, 5329-30, approved June 19, 1999, effective September 1, 1999 (amending

subparagraphs (b) and (c)). If the intent of the Legislature had been the removal of the

article 35.27 exclusion, it seems the more simple solution would have been to repeal

only that portion of subparagraph (a). Accordingly, an analysis of the bill's history does

not support the State's contention that witness fees paid pursuant to article 35.27 are

assessable as costs of court under article 102.002.


       Finally, although counterintuitive to the ultimate position taken, the State argues

that no substantive change in the law was intended by the Legislature when it repealed

subparagraph (a). We see no reason to disagree with that analysis. If the Legislature

did not intend to substantively change the provisions of subparagraph (c), the repeal of

subparagraph (a) did not expand the assemblage of recoverable costs of court to

include non-resident witness expenses paid pursuant to article 35.27. Accordingly, we

hold that article 102.002 does not provide for the assessment of witness fees paid

pursuant to article 35.27 as costs of court. Appellant's third issue is sustained.


                                       Conclusion


       Having determined that the trial court erred by requiring Appellant to reimburse

the State for the costs of his court-appointed attorney and the non-resident witness

article 35.27 reimbursement expenses, we modify the judgment in Cause No. 58,210-A

to clarify that the order to pay court costs does not include a requirement that he pay

$16,510.26 in attorney fees or $537.05 in witness fees, and the judgment, as modified,

                                            11
is affirmed. The trial court's judgments in Cause Nos. 58,211-A, 58,212-A, 58,213-A,

58,216-A, and 58,217-A are affirmed.




                                                   Patrick A. Pirtle
                                                       Justice



Quinn, C.J. and Campbell, J., concurring.



Publish.




                                            12
