                                                                             ACCEPTED
                                                                         03-15-00539-CR
                                                                                 7922395
                                                              THIRD COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                                                  11/20/2015 11:00:08 AM
                                                                       JEFFREY D. KYLE
                                                                                  CLERK
                     No. 03-15-00539-CR

                 IN THE COURT OF APPEALS               FILED IN
                                                3rd COURT OF APPEALS
            FOR THE THIRD JUDICIAL DISTRICT OF      AUSTIN, TEXAS
                  TEXAS AT AUSTIN, TEXAS       11/20/2015 11:00:08 AM
                                                    JEFFREY D. KYLE
                                                         Clerk
                          ********

              MATTHEW DIAZ
                            VS.

         THE STATE OF TEXAS
                          ********

         ON APPEAL FROM THE 426th DISTRICT COURT
                 OF BELL COUNTY, TEXAS
                     Cause No. 72269

                           ******
                 STATE’S BRIEF
                           ******

                          HENRY GARZA
                          DISTRICT ATTORNEY

                          BOB D. ODOM
                          ASSISTANT DISTRICT ATTORNEY
                          P.O. Box 540
                          Belton, Tx 76513
                          (254) 933-5215
                          FAX (254) 933-5704
                          DistrictAttorney@co.bell.tx.us
                          SBA No. 15200000


Oral Argument Not Requested

                              1
                    TABLE OF CONTENTS


ITEM                                                        PAGE

Index of Authorities …………………………………………………………………               4

Statement Regarding Oral Argument ………………………………………..          6

Statement of the Case ………………………………………………………………               6

Statement of Facts ……………………………………………………………………                7

Summary of State’s Argument …………………………………………………..            10

Argument and Authorities ………………………………………………………..             11

       First Issue on Appeal ………………………………………………………           11
                    TRIAL COURT ERR IN FAILING TO CONDUCT
                    HEARING ON ABILITY TO PAY COURT COSTS
                    AND FEES EVEN THOUGH APPELLANT PLED
                    TRUE TO OTHER ALLEGATIONS IN MOTION
                    TO ADJUDICATE NOT INVOLVING FAILURE
                    TO PAY?

            Standard of Review ……………………………………………….           12

            Application and Analysis ……………………………………….        13

       Second Issue on Appeal ………………………………………………….        15
                  TRIAL COURT ERR IN INCLUDING DEADLY
                  WEAPON FINDING IN JUDGMENT ADJUDICATING
                  GUILT?

            Application and Analysis ……………………………………….        15




                                2
                                                         PAGE


     Third Issue on Appeal ……………………………………………………..         21
                 TRIAL COURT ERR IN ORDERING PAYMENT
                 OF COURT COSTS AND FEES IN ACCORDANCE
                 WITH THE BILL OF COSTS?

          Standard of Review ……………………………………………….          21

          Application and Analysis ……………………………………….       22


Prayer …………………………………………………………………………………….                  26

Certificate of Compliance with Rule 9 ……………………………………….    27

Certificate of Service ………………………………………………………………..         27




                             3
                  INDEX OF AUTHORITIES


CASES                                                            PAGE

Cardona v. State, 665 S.W.2d 492 (Tx. Cr. App. 1984) ………………….     12

Gipson v. State, 428 S.W.3d 107 (Tx. Cr. App. 2014) …………………….     13

Guthrie-Nail v. State, __S.W.3d__, No. PD-0125-14, 2015 ……………. 18-20
      Tex.Crim. App. LEXIS 917 (Tx. Cr. App. Sept. 16, 2015)

Hall v. State, __S.W.3d__, No. 10-14-00205, 2015 Tex. ………………….    25
       App. LEXIS 11128, (Waco 10th Dist. 2015)

Ex Parte Huskins, 176 S.W.3d 818 (Tx. Cr. App. 2005) ………………… 17-18

Ireland v. State, No. 03-14-00615-CR, 2015 Tex. App. …………………21, 24
      LEXIS 8404 (Tx. App. Austin 3rd Dist. 2015 no pet.),
      not designated for publication.

Johnson v. State, 423 S.W.3d 385 (Tx. Cr. App. 2014) …………………… 21

Jones v. State, 589 S.W.2d 419 (Tx. Cr. App. 1979) ……………………….. 12

Moore v. State, 605 S.W.2d 924 (Tx. Cr. App. 1980) ……………………... 12

Moses v. State, 590 S.W.2d 469 (Tx. Cr. App. 1979) ………………………      13

Patterson v. State, No. 05-13-01567-CR, 2015 Tex. App. ……………… 14
      LEXIS 753 (Tx. App. Dallas 5th Dist. 2015 no pet.),
      not designated for publication.

Rickels v. State, 202 S.W.3d 759 (Tx. Cr. App. 2006) …………………….. 12




                                  4
                                                   PAGE

OTHER

Texas Penal Code

     Section 29.03(a)(2) …………………………………………………………     16

Texas Code of Criminal Procedure

     Article 42.12(5)(b) ………………………………………………………….    12

     Article 42.12(21)(c) …………………………………………………………    13

     Article 102.011 ……………………………………………………………….      23

Texas Government Code

     Section 51.851 …………………………………………………………………       24




                                   5
STATEMENT REGARDING ORAL ARGUMENT
      The State does not request oral argument.

STATEMENT OF THE CASE

      The Appellant, Matthew Diaz, was charged by indictment with the

offense of aggravated robbery with a deadly weapon. (CR-4). Pursuant

to a plea bargain with the State (CR-200), he entered a plea of guilty to

the offense as charged in the indictment and was placed on a ten year

deferred adjudication community supervision on March 31, 2014. (CR-

30; RR Supp-11-13).

      The State subsequently filed its First Amended Motion to

Adjudicate (CR-46) and that motion was heard by the trial court on June

1, 2015. (RR2). The Appellant entered pleas of true to each of the 19

allegations contained in the motion to adjudicate (RR 2-9). His written

stipulation, judicially confessing to all of the allegations in the motion

and that he was the person placed on deferred adjudication (See State’s

Exhibit 1) was admitted without objection. (RR2-10). The trial court

found that it had enough evidence to find that the Appellant had

violated the terms and conditions of his deferred adjudication and

recessed the hearing. (RR 2-11).



                                    6
      At the subsequent hearing on punishment the trial court found all

of the allegations in the State’s Motion to Adjudicate to be true and

entered a finding of guilty of the offense of aggravated robbery. The

court assessed punishment at five years in the Texas Department of

Criminal Justice Institutional Division and ordered the payment of all

court costs in the case. (CR-30; RR3-16).

      The Appellant gave timely notice of appeal (CR-65) and the trial

court certified his right to do so. (CR-58).

STATEMENT OF FACTS

      Because the Appellant raises three issues on appeal, none of

which contests the sufficiency of the evidence as to his guilt of the

charged offense of aggravated robbery, the State will not recite the facts

of the offense.

      In this case the indictment charged that the Appellant, acting

individually as well as a party with a named individuals “….while in the

course of committing theft of property and with the intent to obtain or

maintain control of said property, intentionally and knowingly threaten

or place Jose Rolando Hernandez-Torres in fear of imminent bodily




                                      7
injury or death, and the defendant did then and there use or exhibit a

deadly weapon, to-wit: a firearm.” (CR-4).

       During the plea proceeding the Appellant entered a plea of guilty

to the charge of aggravated robbery and the trial court took judicial

notice of the Appellant’s judicial confession (RR. Supp-13). In that

judicial confession the Appellant acknowledged that he had read the

indictment and had committed each and every act alleged therein and

that all of the alleged facts were true and correct.      He specifically

admitted that “All deadly weapon allegations are true and correct.” (CR-

25).

       During the plea proceedings the trial court inquired as to whether

the Appellant understood the allegations of the use or exhibition of a

deadly weapon and the effect of those allegations, and he indicated that

he did. (RR. Supp.-9, 10).

       The trial court found the evidence sufficient to support a finding

of guilty, but withheld such a finding and placed the Appellant on a

deferred adjudication probation in keeping with the plea bargain, and

fined him $1,500.00 (RR. Supp.-18). In cautioning the Appellant con-

cerning the need to abide by the terms and conditions of his deferred

adjudication, the trial court expressly noted that there was an


                                    8
affirmative finding of a deadly weapon and the Appellant again

indicated that he understood. (RR. Supp. -17). The trial court’s Order of

Deferred Adjudication recited that there was an affirmative finding of

the use of a deadly weapon, a firearm. (CR-30).

      The State subsequently filed its First Amended Motion to

Adjudicate. That motion contained 19 paragraphs, listed as paragraphs

A through S, each alleging separate violations of the terms and

conditions of the Appellant’s deferred adjudication.     Eight of those

allegations, paragraphs J through Q, alleged failure to pay fines, court

costs and various fees in connection with his deferred adjudication as

ordered by the court. The remaining paragraphs charged violations of

other terms and conditions including the commission of a criminal

offense (paragraph A); as well as positive tests for cocaine, the use of

marijuana, failure to complete drug and alcohol screening, failure to

report, failure to complete community service hours, and failure to

attend the violence intervention program as ordered. (CR46-48).

      At the hearing on the motion to adjudicate the Appellant admitted

that he was the person previously placed upon deferred adjudication in

this case for the felony offense of aggravated robbery and that included

a finding of a deadly weapon. (RR2-5). The Appellant then entered


                                   9
pleas of true to the matters alleged in paragraphs A through S of the

State’s First Motion to Adjudicate. (RR2-9).         State’s exhibit 1, the

Appellant’s written stipulation of evidence, reiterating that he was

entering pleas of true to all of the allegations in the motion and

judicially confessing, was admitted into evidence without objection.

(RR2-10).

      At the subsequent punishment hearing the trial court stated that

it was finding that the allegations in the State’s Motion to Adjudicate

were true, found the Appellant guilty, and assessed his punishment at 5

years in prison. (RR3-16).

      The Judgment Adjudicating Guilt included an affirmative finding

of the use of a deadly weapon, a firearm. (CR-60).

SUMMARY OF STATE’S ARGUMENT

      The Appellant pled true to all 19 allegations in the motion to

adjudicate that included 9 unrelated to the failure to pay court costs or

fees. A plea of true alone is sufficient to support a finding that the terms

and conditions of the deferred adjudication were violated and a proof of

a single violation is sufficient for revocation and adjudication.

Therefore, evidence as to ability to pay court costs and fines on other



                                    10
allegations was unnecessary in order to support the judgment of

conviction.

      The trial court affirmatively found the use and exhibition of a

deadly weapon at every stage of the proceedings prior to the oral

pronouncement of sentence. In a bench trial it is unnecessary to such a

finding to be included in that pronouncement and it may be properly

part of the written judgment of conviction.

      All of the court costs and fees assessed after the judgment

adjudicating guilt were authorized by statute and part of the official bill

of costs. They were properly included in the order and the Appellant

may rely upon the payment records of the district clerk to determine

any credit he may have for previous payments.

ARGUMENT AND AUTHORITIES

First Issue on Appeal

      Did the trial court err in revoking the Appellant’s deferred

adjudication by failing to conduct a hearing on his ability to make the

required payments as alleged in ten of the paragraphs of the motion to

revoke, when he also entered pleas of true to nine other allegations not

involving the failure to pay?



                                    11
      Standard of Review

      A trial court’s Judgment Adjudicating Guilt is reviewed in the

same manner as a revocation hearing. Article 42.12(5)(b), Texas Code of

Criminal Procedure. When reviewing the trial court’s decision to revoke

community supervision imposed under a deferred adjudication order

the sole question is whether the court abused its discretion. Rickels v.

State, 202 S.W.3d 759, 763 (Tx. Cr. App. 2006). The State bears the

burden of proving that the probationer violated the terms and

conditions of the deferred adjudication by a preponderance of the

evidence as alleged in the motion to revoke. Where more than one

violation of the terms and conditions are alleged, a single violation is

adequate and the order of revocation must be affirmed if at least one

sufficient ground alleged supports the trial court’s order. Moore v. State,

605 S.W.2d 924, 926 (Tx. Cr. App. 1980).

      The trial court abuses its discretion in revoking a deferred

adjudication community supervision only if the State fails in its burden

of proof as to every ground alleged. Cardona v. State, 665 S.W.2d 492,

494 (Tx. Cr. App. 1984). The evidence supporting the ruling of the court

must be viewed in the light most favorable to that ruling. Jones v. State,

589 S.W.2d 419, 421 (Tx. Cr. App. 1979). A plea of true, standing alone,


                                    12
is sufficient to support a trial court’s revocation order. Moses v. State,

590 S.W.2d 469, 470 (Tx. Cr. App. 1979).

Application and Analysis

       Although he attempts to couch it in terms of an alleged due

process violation by failing to conduct a hearing on his ability to pay1

the various costs, fees, and fines that he was alleged to have failed to pay

in paragraphs J through Q of the motion to revoke2; the Appellant

actually complains that the evidence to support the trial court’s findings

with respect to those allegations was not sufficient. Even though he

entered pleas of true to all of those allegations, he notes that the court

did not conduct a further hearing, nor did the State offer additional

evidence as to his ability to pay.

       What the Appellant ignores, however, is that paragraph A alleged

a subsequent violation of the law while on deferred adjudication;

paragraphs B and C alleged the use of cocaine and marijuana; paragraph

D alleged failure to complete the Drug Offenders Course as ordered;

paragraphs E and F alleged failure to report; paragraphs G through I


1
  See Article 42.12(21)(c), Code of Criminal Procedure, requiring the State to prove that
the accused was able to pay, but did not do so, in order to revoke community supervision
for failure to pay costs, fees, and attorney’s fees.
2
  The failure to pay fines, as alleged in paragraph K, is not subject to the requirements of
42.12(21)(c). Gipson v. State, 428 S.W.3d 107, 109 (Tx. Cr. App. 2014).


                                            13
alleged violation of the rules and regulations of the community

supervision department; and paragraphs R and S charge failure to

participate in and complete community service activities as ordered.

         None of these allegations involve the failure to pay costs or fees.

In each case the Appellant entered pleas of true to those allegations of

violations of the terms and conditions of his deferred adjudication. He

does not contest the voluntariness of those pleas or that they

constituted violations of the terms and conditions imposed by the trial

court.

         The State was only required to prove one violation as alleged in

the motion to adjudicate in order to sustain the trial court’s Judgment

Adjudicating Guilt. The Appellant’s plea of true, standing alone, was

sufficient to do so. Even discounting the failure to pay allegations, the

State, based upon the Appellant’s pleas of true, proved nine other

violations of the terms and conditions of his deferred adjudication. That

being the case the Court need not reach the question of proof of his

ability to pay. See Patterson v. State, No. 05-13-01567-CR, 2015 Tex.

App. LEXIS 753 (Tx. App. Dallas 5th Dist. 2015 no pet.), not designated

for publication. (Court of Appeals need not reach question of failure to




                                      14
prove ability to pay where the defendant pled true to other allegation in

motion to revoke).

Second Issue on Appeal

         Did the trial court err in including a finding of the use and

exhibition of a deadly weapon, a firearm, in its Judgment Adjudicating

Guilt?

         Application and Analysis

         The Appellant complains that the trial court’s written Judgment

Adjudicating Guilt included the recitation that a deadly weapon, a

firearm was used in the commission of the offense. He says that the fact

that the trial court stated at the conclusion of the adjudication hearing :

              “THE COURT: Mr. Diaz, at this time I’m finding that
               the allegations in the State’s Motion to Adjudicate are
               true. I’m finding you guilty of the felony offense of
               aggravated robbery.” (RR3-16);

shows that there was no affirmative finding of the use and exhibition of

a deadly weapon.

         The indictment in this case charged that the Appellant committed

the offense of aggravated robbery by threatening and placing the victim

in fear of serious bodily injury or death, and that he used or exhibited a

deadly weapon, to-wit: a firearm to do so. (CR-4). The use of the


                                     15
firearm was the element of the offense making it aggravated robbery.

Section 29.03(a)(2).   The Appellant plead guilty to the offense of

aggravated robbery as charged in the indictment. (RR. Supp.-11-13).

His judicial confession specifically affirmed that the deadly weapon

allegations in the indictment were true and correct. (CR-25). In being

questioned by the trial court the Appellant confirmed that he

understood the effect upon him of the deadly weapon finding. (RR.

Supp. -17). The order placing the Appellant on deferred adjudication

expressly included a finding that a deadly weapon, a firearm had been

used and exhibited in the commission of the offense. (CR-30).

      At the revocation hearing the Appellant admitted to the trial court

that he had been placed on deferred adjudication for the offense of

aggravated robbery in the case and that there had been an affirmative

finding of a deadly weapon. (RR2-5). When the trial court ruled upon

the motion to adjudicate it found all of the allegations in the motion to

adjudicate to be true and, although the court did not mention the deadly

weapon finding at that time, it found the Appellant guilty of the offense

of aggravated robbery, which necessarily included a finding that the

element that made the offense aggravated robbery, the use of the deadly

weapon was true. The Judgment Adjudicating Guilt recited that the trial


                                   16
court had found that a deadly weapon, a firearm, had been used in the

commission of the offense, precisely as had the previous order placing

the Appellant on deferred adjudication.

      In Ex Parte Huskins, 176 S.W.3d 818 (Tx. Cr. App. 2005) almost an

identical question presented itself. The defendant had been placed on

deferred adjudication for the offense of deadly conduct after his plea of

guilty. Later, upon the State’s motion, the trial court adjudicated guilt an

orally pronounced sentence without then announcing a deadly weapon

finding. Huskins at 819. The Court of Criminal Appeals noted that the

indictment included an allegation of the use and exhibition of a deadly

weapon and that, when the defendant pled guilty to that offense he

confessed to committing the offense charged in the indictment. Thus, by

properly admonishing the defendant and accepting his plea of guilty, the

trial court necessarily determined that a deadly weapon had been used

in the commission of the offense. Noting that a deadly weapon finding,

although affecting eligibility for parole and how the sentence is served,

does not alter the range of punishment, the appellate court held that the

trial court is not required to orally announce such a finding at

sentencing so long as the allegation of the use of a deadly weapon is

clear from the face of the indictment. The Court found that the deadly


                                    17
weapon finding was properly included in the written judgment after

adjudication of guilt. Huskins at 820-21.

      In this case the allegation of the use of a deadly weapon was not

only clearly set out in the indictment, it was the element included in that

indictment that made the charge against the Appellant the offense of

aggravated robbery. The Appellant obviously had notice of the deadly

weapon allegation because he pled guilty to the offense charged,

judicially confessed to the use of the deadly weapon as alleged, and

confirmed it to the court during his initial plea of guilty and during the

adjudication hearing.

      The Appellant, however, argues that Ex Parte Huskins “has been

implicitly disapproved” by the Court of Criminal Appeals” in Guthrie-

Nail v. State, No. PD-0125-14, 2015 Tex. Crim. App. LEXIS 917 (Tx. Cr.

App. September 16, 2015). However, not only did the Court of Criminal

Appeals not disapprove Huskins, implicitly or otherwise, it actually cited

Huskins as authority for the proposition that in a bench trial a deadly

weapon finding need not be included in the oral pronouncement of

sentence, if it is alleged in the charging instrument and, thus, may be

included for the first time in the written judgment. Guthrie-Nail, Op. at

pg. 6, FN 13.


                                    18
      In Guthrie-Nail the indictment charged the defendant with

conspiracy to commit capital murder by causing the death of the victim

with a firearm. The defendant entered a plea of guilty and judicially

confessed to the offense as charged in the indictment. At the plea

hearing, however, the judge never referred to the deadly weapon and

the plea papers did not make any mention of the weapon. The written

judgment of the trial court said “N/A” in the space provided for findings

on a deadly weapon.      More than two months later, the trial court

entered a judgment nunc pro tunc changing “N/A” to “Yes, a firearm”.

Guthrie-Nail op. at pg. 4. The Court noted that a trial court is free to

decline to find the use of a deadly weapon and, because the record did

not establish “that a deadly-weapon finding was made at or before the

time the written judgment was signed” the case was remanded for a

hearing on the nunc pro tunc. Guthrie-Nail op. at pg. 8.

      Guthrie-Nail is clearly distinguishable from both Huskins and the

present case. In this case findings of the use of a deadly weapon before

the time of the written judgment are all over the record from the initial

plea resulting in the deferred adjudication to the order placing the

Appellant on deferred adjudication, and in the hearing on the motion to

adjudicate the trial court again referred to the deadly weapon


                                    19
allegations in the indictment and to its finding of the use and exhibition

of a deadly weapon and its effect. The Appellant plead guilty to the

offense charged which included a necessary element of the use of a

deadly weapon, judicially confessed to the use of such a weapon as

alleged. The Appellant confirmed to the court that he was fully aware of

the deadly weapon allegations when he entered his plea of guilty to the

offense and when he pled true to the allegations in the motion to

adjudicate. In fact, the only time the trial court did not specifically

mention the deadly weapon was when it found the Appellant guilty of

aggravated robbery and assessed punishment and, as provided in

Huskins and reaffirmed by the Court of Criminal Appeals in Guthrie-Nail,

there was no requirement that the oral pronouncement include that

finding. Further, the notation that the court had found the use of a

deadly weapon, a firearm, appeared in both the order placing the

Appellant on deferred adjudication and the subsequent Judgment

Adjudicating Guilt. There was no question as to the propriety of a nunc

pro tunc order as in Guthrie-Nail where, it must be remembered, the

Court only remanded the case to the trial court for a nunc pro tunc

hearing.




                                   20
      The trial court properly included in its judgment the finding that

the Appellant had used a deadly weapon, a firearm in the commission of

the offense as such a finding was clearly made by the court at every

stage of the proceedings and that finding was properly included even

though it was not in the oral pronouncement of sentence.

Third Issue on Appeal

      Did the trial court err in assessing court costs in accordance with

the Official Bill of Cost of the Bell County District Clerk?

Standard of Review

      Court    costs    are   pre-determined,      legislatively   mandated

obligations resulting from conviction. When the imposition of court

costs is challenged on appeal it is reviewed to determine if there is a

basis for the costs, not to determine if sufficient evidence to prove each

cost was offered at trial. Johnson v. State, 423 S.W.3d 385, 389, 390 (Tx.

Cr. App. 2014); Ireland v. State, No. 03-14-00615-CR, 2015 Tex. App.

LEXIS 8404 (Tx. App. Austin 3rd Dist. 2015 no pet.), not designated for

publication.




                                      21
Application and Analysis

      In the Judgement Adjudicating Guilt the trial court assessed court

cost in the amount of $577.00. (CR-60). This amount was that set out in

the Official Bill of Costs (CR-64).      The Appellant complains about

$279.00 included in that total, either because he believes there to have

been no statutory authority for the assessment, or because he believes

that he is being doubly charged because the same item or category

appeared in the bill of costs filed after he was placed on deferred

adjudication but prior to the adjudication of guilt, apparently assuming

that those included earlier actually had been paid.

      Those court costs that were included in the bill of costs at the time

he was placed on deferred adjudication and in the bill of costs at the

time of the judgment adjudicating guilt which he claims that, although

statutorily authorized, constitute double assessments are as follows:

            District Clerk Fee                          $40.00

            Sheriff Fee                                 $25.00

            Clerk Court Technology Fee                  $ 4.00

            Courthouse Security Fee                     $ 5.00

            District Clerk Record Preservation Fee      $ 2.50

            Records Management Fee                      $ 22.50


                                    22
             Jury Service Fee                               $ 4.00

             Judiciary Support Fee                          $ 6.00

             Consolidated Court Cost                        $133.00

             Basic Criminal Legal Services Fee              $     2.00

In each of these costs and fees the Appellant concedes that they are

authorized by statute and complains only that they were included in

both of the bills of cost filed at various stages of this case.

      As to two items of cost, however, the Appellant contends that they

are not authorized by statute; as well as being double assessments.

They are:

             Sheriff Fee                             $ 25.00

             State Electronic Filing Fee             $ 5.00



      As to the allegations that the Sheriff’s Fee and State Electronic

Filing Fee are not authorized by statute, the Sheriff’s Fee is indeed

authorized by Article 102.011 of the Texas Code of Criminal Procedure.

The Appellant claims, nevertheless, that the fee is not authorized

because it is not itemized to specify the services set out in the article.




                                      23
This, however, is a challenge to the sufficiency of the evidence, which is

not the question on an appeal where court costs are challenged.

      As to the State Electronic Filing Fee, counsel for Appellant states

that he is unable to find a statutory basis for that fee. That same

contention was raised in Ireland, supra.          This Court pointed out,

however, that Section 51.851 of the Texas Government Code, entitled

“Electronic Filing Fee” provides for the payment of $5.00 as court cost

on conviction of any criminal offense, to be deposited with the State

Comptroller in the electronic filing system fund. Ireland, op. at pgs. 4-5.

      At the time that the Appellant was placed on deferred

adjudication the trial court ordered that he pay court costs and fees in

the amount of $251.00 (CR-32). The bill of cost included those items set

out above in that total. (CR-34). In the Judgment Adjudicating Guilt the

court ordered payment of court costs in the amount of $577.00 (CR-60).

The bill of costs at that time included those same categories, however, it

also reflected additional costs apparently accrued during the deferred

adjudication. It must be noted that on that bill of cost the date when the

particular item of cost was added to the bill is noted and that list clearly

includes those in the first bill of cost. It also recites that in each case the

amount listed is the unpaid balance at the time of the filing of the bill,


                                      24
which was three days after the judgement.                  Nothing in the record

indicates that the Appellant is being billed for amounts previously paid.

       It is respectfully submitted that where, as here, unpaid costs are

carried over from a community supervision and included in the

judgment of conviction, the only practical procedure is for the judgment

to impose the original and any additional court cost and fees. Then the

Appellant can certainly show previous payment and receive credit at

any time and may also rely upon the records of payment maintained by

the court clerk.3

       All of the items included in the bill of cost and ordered to be paid

in the Judgement Adjudicating Guilt are authorized by statute. Merely

because those items were also included in an earlier bill at the time of

the assessment of deferred adjudication does not, in and of itself, show

that they have been previously paid or are duplicitous. It is obvious

from the second bill of cost that some additional costs and fees had


3
 This was the conclusion of the Tenth Court of Appeals in a very recent case involving
an analogous situation regarding the payment of fines. In that case the defendant was
assessed a $1,000.00 fine when placed on community supervision. Years later, his
probation was revoked and the trial court’s judgment of conviction imposed the original
$1,000.00 fine even though the motion to revoke alleged a $160.00 arrearage. The Court
of Appeals noted that it was not the State’s burden to show how much the defendant had
or had not paid. The court held that the proper way to avoid having to reform a judgment
was to impose the original amount of the fine and to leave the credits, if any, to the
payment history maintained by the district clerk. Hall v. State, ___S.W.3d____, No. 10-
14-00205, 2015 Tex. App. LEXIS 11128 (Tx. App. 10th Dist. Waco 2015).


                                          25
accrued during the community supervision or as a result of the

revocation proceeding. All are listed by the clerk as unpaid. It is not

reasonable to delete the order for the payment of items included on the

bill of cost simply because the same category of cost was also included

on the first bill. Clearly the only practical way is for the court to order

payment of the costs as set out in the bill and then to allow the

Appellant to rely upon the records of payment in the clerk’s office to

show any credits for payments he may have made.

                                PRAYER

      The State of Texas respectfully prays that the judgment of

conviction herein be, in all things, be affirmed.

                                            Respectfully Submitted,

                                            HENRY GARZA
                                            District Attorney

                                            /s/     Bob D. Odom
                                            BOB D. ODOM
                                            Assistant District Attorney
                                            P.O. Box 540
                                            Belton, Tx 76513
                                            (254) 933-5215
                                            FAX (254) 933-5704
                                            DistrictAttorney@co.bell.tx.us
                                            SBA No. 15200000




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     CERTIFICATE OF COMPLIANCE WITH RULE 9

     This is to certify that the State’s Brief is in compliance with Rule 9

of the Texas Rules of Appellate Procedure and that portion which must be

included under Rule 9.4(i)(1) contains 4079 words.




                                           /s/   Bob D. Odom
                                           BOB D. ODOM
                                           Assistant District Attorney



                  CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of this brief has been

served upon, John A. Kuchera, Counsel for Appellant, by electronic

transfer via Email, addressed to him at johnkuchera@210law.com on

this 20th day of November, 2015.




                                           /s/   Bob D. Odom
                                           BOB D. ODOM
                                           Assistant District Attorney




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