                                        NO. 12-13-00049-CR

                               IN THE COURT OF APPEALS

                   TWELFTH COURT OF APPEALS DISTRICT

                                           TYLER, TEXAS

KEONDRE CHRISHAWN MCGOWEN,                             §       APPEAL FROM THE 114TH
APPELLANT

V.                                                     §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                               §       SMITH COUNTY, TEXAS

                                        MEMORANDUM OPINION
       Keondre Chrishawn McGowen appeals his conviction for aggravated assault with a deadly
weapon. In two issues on appeal, Appellant challenges the trial court’s imposition of court costs.
We modify the judgment and affirm as modified.

                                                 BACKGROUND
       Appellant was charged by indictment with the offense of aggravated assault with a deadly
weapon, a second degree felony.1 The indictment also included an allegation that Appellant used or
exhibited a deadly weapon, a firearm, during the commission of or immediate flight from the
offense. Appellant entered a plea of ―guilty‖ to the offense charged in the indictment and ―true‖ to
the deadly weapon allegation. Appellant and his counsel signed various documents in connection
with his guilty plea, including a stipulation of evidence and judicial confession in which Appellant
swore, admitted, and judicially confessed to all the allegations pleaded in the indictment. The trial
court accepted Appellant’s plea, found sufficient evidence to substantiate his guilty plea, deferred
further proceedings without entering an adjudication of his guilt, and ordered that Appellant be
placed on deferred adjudication community supervision for five years. The trial court also ordered
that Appellant pay court costs in the amount of $284.00 and restitution to be determined.


       1
           See TEX. PENAL CODE ANN. § 22.02 (a)(2), (b) (West 2011).
       The State filed an application to proceed to final adjudication, alleging that Appellant had
violated the terms of his community supervision. Appellant and his counsel signed a written plea
admonishment and stipulation of evidence in which Appellant pleaded ―true‖ to the allegations in
paragraphs I through XI in the State’s application. At the hearing, Appellant also pleaded ―true‖ to
all the paragraphs in the State’s application. At the conclusion of the hearing, the trial court found
paragraphs I through XI of the State’s application to be ―true,‖ revoked Appellant’s community
supervision, and adjudicated Appellant guilty of aggravated assault with a deadly weapon. The trial
court also made an affirmative deadly weapon finding.
       The trial court assessed Appellant’s punishment at twelve years of imprisonment, and
assessed court costs in the amount of $284.00. An order to withdraw funds was attached to the
judgment which stated that Appellant had incurred ―[c]ourt costs, fees and/or fines and/or
restitution‖ in the amount of $284.00. The trial court ordered that payment be made out of
Appellant’s inmate trust account. This appeal followed.


                          EVIDENTIARY SUFFICIENCY OF COURT COSTS
       In his first issue, Appellant contends that the trial court erred by imposing court costs not
supported by a bill of costs and by ordering that the costs be withdrawn from his inmate trust
account. In his second issue, Appellant argues that the evidence is legally insufficient for the trial
court to assess court costs. Since the filing of Appellant’s brief, the record in this case has been
supplemented with a bill of costs. See White v. State, No. 12-12-00388-CR, 2013 WL 3967702, at
*2 (Tex. App.—Tyler July 31, 2013, no pet.) (permitting supplementation of record with bill of
costs). Accordingly, we review both of Appellant’s issues as a sufficiency challenge to the trial
court’s assessment of costs.
Standard of Review and Applicable Law
       A challenge to the sufficiency of the evidence supporting court costs is reviewable on direct
appeal in a criminal case. See Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011).
We measure sufficiency by reviewing the record in the light most favorable to the award. Mayer v.
State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010). Requiring a convicted defendant to pay court
costs does not alter the range of punishment, is authorized by statute, and is generally not
conditioned on a defendant’s ability to pay. See TEX. CODE CRIM. PROC. ANN. art. 42.16 (West
2006); Armstrong, 340 S.W.3d at 767; see also Johnson v. State, No. 12-12-00289-CR, 2013 WL
3054994, at *3 (Tex. App.–Tyler June 19, 2013, no pet.).


                                                  2
Analysis
         In the instant case, the judgment of conviction reflects that the trial court assessed $284.00
in court costs. The judgment includes a document identified as ―Attachment A Order to Withdraw
Funds,‖ which states that Appellant has incurred ―[c]ourt costs, fees and/or fines and/or restitution‖
in the amount of $284.00. The State concedes, and we agree, that the assessment of $284.00 is
improper and that the judgment and withholding order should be modified. The bill of costs
assessed $284.00 in court costs but reflects a remaining balance of $124.00. We have reviewed the
items listed in the bill of costs, and all listed costs and fees are authorized by statute.
         Because some costs have already been paid, the evidence is insufficient to support the trial
court’s assessment of $284.00 in court costs as reflected in its judgment and withholding order. The
evidence is sufficient, however, to support the imposition of $124.00, the remaining balance
reflected by the bill of costs. See, e.g., Lack v. State, No. 12-13-00052-CR, 2013 WL 3967698, at
*1-2 (Tex. App.—Tyler July 31, 2013, no pet.) (mem. op., not designated for publication); Ashford
v. State, No. 12-12-00373-CR, 2013 WL 3874939, at *2 (Tex. App.—Tyler July 24, 2013, no pet.)
(mem. op., not designated for publication). Accordingly, we sustain Appellant’s first and second
issues in part.


                                                     DISPOSITION
         Having sustained Appellant’s first and second issues in part, we modify the trial court’s
judgment to reflect that the amount of court costs assessed is $124.00. See TEX. R. APP. P. 43.2(b).
We also modify Attachment A to delete the assessment of $284.00 and to state that the total amount
of ―[c]ourt costs, fees and/or fines and/or restitution‖ is $124.00. See, e.g., Reyes v. State, 324
S.W.3d 865, 868 (Tex. App.—Amarillo 2010, no pet.). We affirm the trial court’s judgment as
modified. See TEX. R. APP. P. 43.2(b).


                                                                      SAM GRIFFITH
                                                                         Justice

Opinion delivered September 30, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                (DO NOT PUBLISH)



                                                                3
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                        SEPTEMBER 30, 2013


                                          NO. 12-13-00049-CR


                            KEONDRE CHRISHAWN MCGOWEN,
                                       Appellant
                                          V.
                                 THE STATE OF TEXAS,
                                       Appellee


                                 Appeal from the 114th District Court
                         of Smith County, Texas (Tr.Ct.No. 114-1077-10)

                       THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below should be modified and, as modified, affirmed.
                       It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment in this cause be modified to reflect that the amount of court costs assessed is
$124.00. We also modify Attachment A to delete the assessment of $284.00 and to state that the
total amount of ―[c]ourt costs, fees and/or fines and/or restitution‖ is $124.00; that as modified,
the trial court’s judgment is affirmed; and that this decision be certified to the trial court below
for observance.
                    Sam Griffith, Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
