                                      NO. 12-13-00052-CR

                           IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                       TYLER, TEXAS

JANICE LACK,                                          §          APPEAL FROM THE 114TH
APPELLANT

V.                                                    §          JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                             §           SMITH COUNTY, TEXAS

                                       MEMORANDUM OPINION
       Janice Lack appeals her conviction for the offense of interference with child custody. She
raises one issue on appeal relating to the imposition of court costs. We modify and affirm as
modified.


                                                BACKGROUND
       Appellant was charged by indictment with the state jail felony offense of interference with
child custody.1 On June 8, 2012, Appellant pleaded guilty to the offense. The trial court deferred a
finding of guilt and placed Appellant on deferred adjudication community supervision for a period of
five years.
       The State filed an application to proceed to final adjudication, which was amended on January
18, 2013. Appellant pleaded “true” to seven of the State’s nine allegations. The trial court found
seven of the nine allegations to be “true,” revoked Appellant’s community supervision, and
adjudicated Appellant guilty of the offense of interference with child custody. The trial court
assessed punishment at two years of confinement without a fine and ordered court costs to be paid.

       1
           See TEX. PENAL CODE ANN. § 25.03 (West Supp. 2012).
       While on community supervision, Appellant paid towards the balance of the court costs
imposed in the trial court’s order of deferred adjudication. The judgment adjudicating guilt assessed
$284.00 in court costs. The bill of costs shows that the original amount of court costs is $284.00, but
that the remaining balance was actually $164.00.


                    SUFFICIENCY OF THE EVIDENCE SUPPORTING COURT COSTS
       In her sole issue, Appellant argues that the trial court erred by imposing court costs that were
not supported by the bill of costs and by ordering the court costs to be withdrawn from her inmate
trust account.
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); Cardenas v. State, No. 01-11-01123-CR, 2013
WL 1164365, at *6 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013, no pet.) (not yet released for
publication). 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.) (not yet released for publication).
Discussion
       The judgment adjudicating guilt assessing $284.00 in court costs also 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.
       Appellant contends, and the State concedes, that the trial court’s judgment and withholding
order should be modified to reflect court costs in the amount of $164.00. 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 adjudicating guilt and withholding order. See,
e.g., Muller v. State, No. 12-12-00269-CR, 2013 WL 3243522, at *2-3 (Tex. App.—Tyler June 25,

                                                   2
2013, no pet.) (mem. op., not designated for publication) (modifying judgment to reflect payment of
properly assessed costs); Johns v. State, Nos. 07-10-0303-CR, 07-10-0304-CR, 2011 WL 832837, at
*2 (Tex. App.—Amarillo Mar. 10, 2011, pet. ref’d) (mem. op., not designated publication)
(modifying judgment to reflect that payment of properly assessed costs were paid in full). The
evidence is sufficient, however, to support the imposition of $164.00 in court costs. Accordingly,
we sustain Appellant’s sole issue on appeal.


                                                      DISPOSITION
         Having sustained Appellant’s sole issue, we modify the trial court’s judgment to reflect that
the amount of court costs is $164.00. 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 “court costs, fees and/or fines
and/or restitution” is $164.00. See Ballinger v. State, No. 12-12-00280-CR, 2013 WL 3054935, at
*3 (Tex. App.—Tyler June 19, 2013, no pet.) (not yet released for publication). We affirm the
judgment of the trial court as modified. See TEX. R. APP. P. 43.2(b).


                                                                 SAM GRIFFITH
                                                                   Justice



Opinion delivered July 31, 2013.
Panel consisted of Worthen, C. J., Griffith, J., and Hoyle, J.




                                                (DO NOT PUBLISH)




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                                COURT OF APPEALS
           TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                          JUDGMENT
                                             JULY 31, 2013


                                       NO. 12-13-00052-CR

                                         JANICE LACK,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee

_____________________________________________________________________________
                              Appeal from the 114th Judicial District Court
                            of Smith County, Texas. (Tr.Ct.No.114-0453-12)
 _____________________________________________________________________________
                        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 judgment of the
trial court below should be modified and, as modified, affirmed.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the trial court below be modified to reflect that the amount of court costs is $164.00. We also
modify Attachment A to delete the assessment of $284.00 and to state that the total amount of
“court costs, fees and/or fines and/or restitution” is $164.00; and as modified, the judgment of the
trial court 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.




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