Opinion filed September 6, 2012




                                            In The


   Eleventh Court of Appeals
                                          __________

                                    No. 11-10-00183-CR
                                        __________

                             KERVIN ROBERTS, Appellant

                                                V.

                              STATE OF TEXAS, Appellee


                           On Appeal from the 19th District Court

                                   McLennan County, Texas

                              Trial Court Cause No. 2010-214-C1


                            MEMORANDUM OPINION

       The opinion and judgment issued July 19, 2012, are withdrawn, and this court’s opinion
and judgment dated September 6, 2012, are substituted therefor.           Appellant’s motion for
rehearing, with which the State has agreed, is granted.
       Kervin Roberts appeals his conviction by a jury of the offense of robbery. After finding
an enhancement paragraph true, the jury assessed his punishment at sixty years in the Texas
Department of Criminal Justice, Institutional Division. He contends in two issues that the trial
court erred by ordering him to pay court costs, including the fees of his court-appointed attorney,
and that the trial court denied him equal protection of the law by failing to order the State to turn
over to him the criminal history of the jury panel members. We modify and affirm.
       Roberts urges in Issue One that the trial court erred by ordering him to pay all of the costs
of court, including the fees for his court-appointed counsel, even though the court found him to
be indigent. He asserts that the evidence is insufficient to support the trial court’s order for him
to pay the court costs, which included the cost of his court-appointed investigator and his court-
appointed attorney. The State concedes that the evidence fails to support the trial court’s order
and that the “proper remedy is to reform the judgment to delete the court-appointed attorney’s
and investigator’s fees.” See Mayer v. State, 309 S.W.3d 552, 555 (Tex. Crim. App. 2010);
Stevenson v. State, No. 10-09-00358-CR, 2011 WL 4978316 (Tex. App.—Waco Oct. 19, 2011,
no pet.) (mem. op., not designated for publication); Morris v. State, No. 10-10-00158-CR, 2010
WL 4983491 (Tex. App.—Waco Dec. 8, 2010, no pet.) (mem. op., not designated for
publication); Barrera v. State, 291 S.W.3d 515 (Tex. App.—Amarillo 2009, no pet.); see also
TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2012). We agree and sustain Issue One.
       Roberts urges in Issue Two that the trial court denied him equal protection of the law by
failing to order the State to turn over the criminal history of the jury panel members. In his
discussion of the issue, he also appears to contend that the State’s failure to provide him with the
information is a violation of his rights to due process. The State was able to obtain the criminal
history of the prospective jury panel. Roberts, who was indigent, requested that he have access
to the information acquired by the State. The trial court denied Roberts access to the information
obtained by the State, requiring only that the State disclose which jurors, if any, were legally
disqualified.
       As we have noted, Roberts appears to contend on appeal that the denial of his motion to
obtain the information constitutes a violation of his rights under the Equal Protection Clause or
the Due Process Clause of the United States Constitution, or both.            As a prerequisite to
presenting a claim for appellate review, Roberts must show that his request stated the grounds for
the ruling that he sought with sufficient specificity to make the trial court aware of the complaint,
unless the specific grounds were apparent from the context. TEX. R. APP. P. 33.1(a).
       The Texas Court of Criminal Appeals has held that the State has no obligation to make
information in its possession with respect to prospective jurors available to the defense.
Armstrong v. State, 897 S.W.2d 361, 365 (Tex. Crim. App. 1995); Martin v. State, 577 S.W.2d

                                                 2
490, 491 (Tex. Crim. App. 1979). Roberts’s request for the jury information possessed by the
State did not make the trial court aware that he was basing his request on the Equal Protection
Clause or the Due Process Clause of the United States Constitution, or both. Given the fact that
the Texas Court of Criminal Appeals has held that such information is not discoverable, a mere
request for the information without putting the trial court on notice that the request is based upon
a denial of the defendant’s rights under the Equal Protection Clause or the Due Process Clause of
the United States Constitution, or both, does not state the grounds for the ruling sought with
sufficient specificity to make the trial court aware of the complaint. We do not find the grounds
to be apparent from the context.
       In urging that he has preserved this error, Roberts relies on the opinions in the cases of
Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992), and Lewis v. State, 191 S.W.3d
335, 338 (Tex. App.—Waco 2006, pet. ref’d). We find both cases distinguishable because
neither involves an appellate complaint of a violation of equal protection or due process in the
trial court’s denial of a discovery motion where the defendant did not make the trial court aware
that the basis for the discovery was the Equal Protection Clause or the Due Process Clause of the
United States Constitution, or both. We overrule Issue Two.
       We modify the judgment of the trial court to delete the order that Roberts pay the cost of
his court-appointed investigator and the cost of his court-appointed attorney, which were
included in the judgment as court costs. As modified, the judgment of the trial court is affirmed.




                                                                                PER CURIAM


September 6, 2012
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill.1




       1
           John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

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