Affirmed as Modified and Opinion filed May 9, 2013.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00632-CR

                        EMERSON HANDY, Appellant

                                        V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 179th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1278565

                                OPINION


      Appellant Emerson Handy pleaded guilty to the offense of burglary of a
habitation. The trial court, after considering a presentence investigation (PSI)
report and two prior felony convictions, sentenced appellant to 45 years’
confinement in the Institutional Division of the Texas Department of Criminal
Justice. On appeal, appellant contends (1) the trial court erred in considering
allegations that appellant committed murder; (2) the trial court erred in sentencing
appellant in the absence of a drug and alcohol evaluation; and (3) the specific
dollar amount in court costs is not supported by sufficient evidence. We modify
the trial court’s judgment to delete the specific amount of costs assessed and affirm
the judgment as modified.

                       FACTUAL AND PROCEDURAL BACKGROUND

      According to the PSI, the complainant was found strangled to death in her
home on September 15, 2010. The bedroom in which the complainant’s body was
found appeared to have been ransacked as if the home had been burglarized.
Appellant was arrested after he pawned a ring belonging to the complainant.
Appellant admitted he knew the complainant and assisted her after she exited the
Metro lift at the front of her apartment complex. Appellant further admitted he
watched as the complainant entered her access code into the keypad on her front
door. Appellant memorized the access code and claimed he gave the code to a
white homeless male so that the man could steal from the complainant. Appellant
further admitted he planned to receive money for helping the homeless man pawn
the stolen items.

      The PSI also mentions a codefendant who admitted knowing appellant and
identified him as her boyfriend. She admitted entering the complainant’s residence
with appellant and assisting him in caring for the complainant.         She further
admitted to taking the complainant’s laptop computer and exchanging it for crack,
which she consumed with appellant.

      The PSI reflected that appellant first entered the Texas Department of
Criminal Justice (TDCJ) on January 23, 1985, and was paroled October 22, 1985.
His parole was revoked due to a subsequent offense committed on August 16,
1986. He was paroled on November 25, 1987, then re-entered TDCJ on February
13, 1992, because he committed another offense while on parole. He was paroled
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on November 5, 2001, then re-entered TDCJ May 10, 2005, when his parole was
revoked. Finally, on January 7, 2010, he was paroled and was on parole when he
committed the instant offense.

       Appellant admitted addictions to alcohol and crack cocaine. The PSI also
contained a victim impact statement from the complainant’s sister.

                                         ANALYSIS

       In his first issue appellant contends the trial court erred in considering
allegations that appellant had committed murder. Specifically, appellant claims the
trial court abused its discretion by considering capital murder allegations in
sentencing appellant to 45 years in prison for burglary.

       At the PSI hearing, appellant objected to the trial court’s consideration of the
allegations of capital murder contained in the PSI. The trial court responded as
follows:

       Okay. And I think there is only one brief reference to it that the
       owner of the apartment that was burglarized was found with the
       ethernet cords wrapped around her neck, and she was dead. That’s the
       only — but I will take notice of what your objection is. This is a
       sentencing on a burglary of a habitation and not a capital murder.
At the conclusion of the hearing, immediately prior to sentencing appellant, the
trial court stated:

       Mr. Handy, it appears that you are a career criminal. You are a
       burglar. Time after time, you have been convicted of that. There is a
       dead person here. No one is charging you with that, and I’m not even
       looking at that. Let me tell you this: If it weren’t for you giving out
       her door access number, maybe she wouldn’t be dead. You
       understand the very day you give it out or within a day, she’s dead.
       But I’m not looking at that. I’m only looking at the fact that you
       admit that you went into her apartment and you took things.
       (emphasis added)

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        When assessing punishment, a trial court may consider any evidence
relevant to sentencing, including the contents of a PSI report. Tex. Code Crim.
Proc. art. 42.12, § 9; see Jagaroo v. State, 180 S.W.3d 793, 799 (Tex. App.—
Houston [14th Dist.] 2005, pet. ref’d)(“The trial court was authorized by statute to
consider the PSI report and testimony [of the victim and the victim’s relatives]
prior to pronouncing punishment.”). Further, the Court of Criminal Appeals has
recognized that a PSI report may contain evidence that would not have been
admissible in the punishment stage of a trial due to its subject matter, noting that
generally “the rules of evidence do not apply to the contents of a PSI.” Fryer v..
State, 68 S.W.3d 628, 631 (Tex. Crim. App. 2002) (holding trial court had
authority to consider victim’s punishment recommendation contained in PSI
report). The court reasoned that “[t]o hold otherwise . . . would be to deny the
obvious purpose of the statute.” Id.

        Although the trial court was entitled to consider evidence in the PSI report
that may not necessarily be admitted at trial, the record reflects an affirmative
statement by the court that it did not consider evidence of the murder. Because the
record shows that the trial court did not consider the extraneous conduct,
appellant’s first issue is overruled.

        In his second issue, appellant contends the trial court erred in sentencing him
without ordering a drug and alcohol evaluation. Appellant argues the trial court
was required to order a drug and alcohol evaluation in accordance with article
42.12, section 9(h) of the Texas Code of Criminal Procedure, which provides in
part:

        (h) On a determination by the judge that alcohol or drug abuse may
        have contributed to the commission of the offense, . . . the judge shall
        direct a supervision officer . . . to conduct an evaluation to determine
        the appropriateness of, and a course of conduct necessary for, alcohol

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         or drug rehabilitation for a defendant and to report that evaluation to
         the judge. The evaluation shall be made: . . .
         (2) after conviction and before sentencing, if the judge assesses
         punishment in the case.

Tex. Code Crim. Proc. Ann. art. 42.12, § 9(h). The statute is mandatory. Smith v.
State, 91 S.W.3d 407, 409 (Tex. App.—Texarkana 2002, no pet.). However, a
party must assert his right to a substance abuse evaluation or it is waived. Alberto
v. State, 100 S.W.3d 528, 529 (Tex. App.—Texarkana 2003, no pet.); see also
Nguyen v. State, 222 S.W.3d 537, 541–42 (Tex. App.—Houston [14th Dist.] 2007,
pet. ref’d).

         Appellant did not object to the trial court’s failure to order a substance abuse
evaluation. Appellant admits in his brief he did not request a substance abuse
evaluation.     Because he failed to preserve error, appellant’s second issue is
overruled.

         In his third issue, appellant contends that there is insufficient evidence in the
record to support the court costs assessed against him in the judgment. In its
judgment, the trial court ordered appellant to pay $289.00 in court costs.              A
supplemental clerk’s record filed with this court contains a judgment nunc pro tunc
purporting to correct the court costs to reflect $234.00 in court costs. On March
20, 2013, the court issued “Entry of Judgment Nunc Pro Tunc” in which it stated
that the court was “satisfied from its own recollection” that the correct cost bill was
$234.00. The supplemental clerk’s record also contains an itemized bill of costs
reflecting $234.00 in court costs signed and dated by the Harris County District
Clerk.

         In Johnson v. State, 389 S.W.3d 513, 517 (Tex. App.—Houston [14th Dist.]
Oct. 16, 2012, pet. granted), this court held that when the record does not support


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the assessment of a certain dollar amount in costs, the trial court errs in entering a
specific dollar amount in its judgment. In this case, the original judgment listed
$289.00 in court costs. The record before this court does not reflect sufficient
evidence before the court at the time the court included the specific dollar amount
in its judgment. The court attempted to correct its judgment after receiving a bill
of costs via judgment nunc pro tunc. The judgment nunc pro tunc, signed after
appellant’s brief was filed in this case, reflects court costs of $234.00 as shown by
the bill of costs.

       A judgment nunc pro tunc is the appropriate avenue to make a correction
when the court’s records do not mirror the judgment that was actually rendered.
Alvarez v. State, 605 S.W.2d 615, 617 (Tex. Crim. App. 1980). A trial court can
fix a clerical error in the record, but only errors that were not the result of judicial
reasoning are considered clerical errors that can be fixed by a nunc pro tunc
judgment. Ex parte Poe, 751 S.W.2d 873, 876 (Tex. Crim. App. 1988). The trial
court cannot, through a judgment nunc pro tunc, change a court’s records to reflect
what it believes should have been done. Collins v. State, 240 S.W.3d 925, 928
(Tex. Crim. App. 2007). “Thus, before a judgment nunc pro tunc may be entered,
there must be proof that the proposed judgment was actually rendered or
pronounced at an earlier time.” Wilson v. State, 677 S.W.2d 518, 521 (Tex. Crim.
App. 1984).

        At the time the court signed the judgment it did not have sufficient
evidence of either $289.00 or $234.00 in court costs. Therefore, a judgment nunc
pro tunc is not the proper remedy to correct the dollar amount of court costs. The
trial court did not err in ordering appellant to pay costs, as such is mandated by the
Code of Criminal Procedure. Tex. Code Crim. Proc. art. 42.16. However, the
court erred in entering a specific dollar amount without support in the record for

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that dollar amount. See Johnson, 389 S.W.3d at 516. Because there was no
evidence of costs at the time the first judgment was entered, the amount of costs
could not be corrected by judgment nunc pro tunc. See Johnson, 233 S.W.3d at
425.

       Because there is no evidence in the record to support the trial court’s
assessment of a specific dollar amount as court costs, we reform the trial court’s
judgment nunc pro tunc to delete the specific dollar amount of costs. See Johnson
389 S.W.3d at 517. As modified, the judgment is affirmed.




                                     /s/       Adele Hedges
                                               Chief Justice



Panel consists of Chief Justice Hedges and Justices Frost and Donovan.
Publish — TEX. R. APP. P. 47.2(b).




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