Opinion issued April 3, 2014




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                               NO. 01-12-00927-CR
                            ———————————
                        OSCAR MONTANO, Appellant
                                        V.
                       THE STATE OF TEXAS, Appellee



                    On Appeal from the 184th District Court
                            Harris County, Texas
                        Trial Court Case No. 1330964



                                  OPINION

      Without a sentencing recommendation from the State, appellant Oscar

Montano pleaded guilty to the felony offense of burglary of a habitation with intent

to commit theft. See TEX. PENAL CODE ANN. § 30.02 (West 2011). The trial court
sentenced the appellant to 18 years in prison and imposed court costs. Presenting

one issue on appeal, Montano contends that there is insufficient evidence to

support the award of court costs ordered by the trial court. We modify the

judgment of the trial court to reflect those costs supported by the record, and as so

modified, we affirm.

                                     Background

      Montano was indicted for burglary of a habitation with the intent to commit

theft. Without a recommendation as to punishment, he pleaded guilty to the

charged offense and pleaded true to the enhancement allegation that he had

previously been convicted of the felony offense of burglary of a habitation. The

trial court sentenced him to confinement for 18 years. Furthermore, Montano was

ordered to pay $244 in court costs as part of the judgment.

      Montano appealed, and he requested that the clerk’s record on appeal

include, among other things, a “bill of costs reflecting all fees and costs assigned to

[him] post-conviction.” A bill of costs was subsequently prepared by the clerk and

included in the record. The total reflected in the bill of costs was $234.

                                       Analysis

      Montano challenges the sufficiency of the evidence to support the award of

costs. In the trial court, he did not object to the amount of costs, but he did not need

to do so to preserve his right to challenge them on appeal. See Johnson v. State,



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No. PD-0193-13, 2014 WL 714736, at *2–3 (Tex. Crim. App. Feb. 26, 2014).

Montano does argue that the postjudgment preparation of a bill of costs violated

his due process rights, and that the document therefore should not be considered.

He thus contends that he should not have to pay any court costs, because there

would be insufficient evidence to support the assessment without this bill.

However, we review the sufficiency of the evidence to support the award of costs

to determine if there was a basis for the costs, not to determine if there was

sufficient evidence offered at trial to prove each cost. See id. at *2.

I.    Due process

      Montano asserts the production of a bill of costs after the entry of judgment

violates his due process rights and should not be considered by this court.

Furthermore, Montano claims he received no notice and did not have an

opportunity to be heard regarding the amount of court costs, because he did not

receive a bill of costs before the judgment of the case. These arguments were

recently considered and rejected by the Court of Criminal Appeals. “Convicted

defendants have constructive notice of mandatory court costs set by statute and the

opportunity to object to the assessment of court costs against them for the first time

on appeal or in a proceeding under Article 103.008 of the Texas Code of Criminal

Procedure.” Cardenas v. State, No. PD-0733-13, 2014 WL 714734, at *2 (Tex.

Crim. App. Feb. 26, 2014); see also Johnson, 2014 WL 714736, at *7 (holding that



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a bill of costs is not required to support any particular amount of court costs).

Montano’s right to due process of law therefore has been satisfied with respect to

notice and an opportunity to be heard regarding the imposition of court costs.

Cardenas, 2014 WL 714734, at *2.

II.    Constitutional objections to specific costs

       Montano also argues that the postjudgment supplementation of the record

with a bill of costs wrongfully precluded him from making constitutional

objections to the “consolidated court costs” on appeal. See Karenev v. State, 281

S.W.3d 428, 434 (Tex. Crim. App. 2009) (“a defendant may not raise for the first

time on appeal a facial challenge to the constitutionality of a statute”). He claims

this was a separate violation of due process, but this argument was also rejected by

the Court of Criminal Appeals in Johnson: “an appellant is not prejudiced by the

supplementation of the record under these circumstances because he or she need

not object at trial to contest the imposition of court costs on direct appeal, and an

appellant has a separate statutory remedy to correct erroneous or unsupportable

costs.” Johnson, 2014 WL 714736, at *4 (citing TEX. CODE CRIM. PROC. ANN. art.

103.008(a)). Accordingly we overrule this issue.

III.   Sufficiency of evidence to support costs

       Finally we review the award of costs by reviewing the facts in the record to

determine whether they provide a basis for the assessed court costs. See id. at *2.



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      In response to Montano’s request, the district clerk filed a document that was

generated by the Harris County Clerk’s Justice Information Management System.

This document was printed out and certified by the district clerk of Harris County.

The document, entitled “Cost Bill,” itemized the various costs of Montano’s case.

      The costs are listed on two pages. The first page lists costs and a subtotal of

$60 of costs, including:

                  $40   “clerks fee” 1
                  $15   “sheriffs fee” 2
        +          $5   “security fee” 3
                  $60   “subtotal”

The first page also lists the following costs which are component parts of the $15

“sheriffs fee”:

                   $5 “commitment” 4
                   $5 “release” 5

1
      See TEX. CODE CRIM. PROC. ANN. art. 102.005(a) (West 2007) (“A defendant
      convicted of an offense in a county court, a county court at law, or a district
      court shall pay for the services of the clerk of the court a fee of $40.”). The
      record reflects that a conviction issued in the case on September 25, 2011.
2
      See generally id. art. 102.011 (West Supp. 2013) (fees for services of peace
      officers).
3
      See id. art. 102.017(a) (“A defendant convicted of a felony offense in a
      district court shall pay a $5 security fee as a cost of court.”). The record
      reflects that a conviction issued in the case on September 25, 2011.
4
      See id. art. 102.011(a)(6) (“A defendant convicted of a felony or a
      misdemeanor shall pay the following fees for service performed in the case
      by a peace officer . . . $5 for commitment or release . . . .”). The record
      reflects that a felony commitment was issued on September 25, 2012.

                                           5
         +      $5 “arrest                      w/o
                   warrant/capias” 6
               $15 “sheriffs fee”


      The second page carries forward the $60 subtotal from the first page and

lists the following additional costs, culminating in $234 as the “total amount

owed”:

               $60    “page 1 subtotal”
                 $4   “court technology fund” 7
                 $4   “jury reimbursement fee”8
               $ 25   “DC record preservation” 9


5
      See id. art. 102.011(a)(6) (“A defendant convicted of a felony or a
      misdemeanor shall pay the following fees for service performed in the case
      by a peace officer . . . $5 for commitment or release . . . .”). The record
      reflects that a conviction was issued in the case on September 25, 2011.
6
      See id. art. 102.011(a)(1) (“A defendant convicted of a felony or a
      misdemeanor shall pay the following fees for services performed in the case
      by a peace officer . . . $5 . . . for making an arrest without a warrant . . . .”).
      The record reflects that an arrest was made on December 12, 2011, and there
      is no record of a warrant being issued.
7
      See id. art. 102.0169(a) (“A defendant convicted of a criminal offense in a . .
      . district court shall pay a $4 county and district court technology fee as a
      cost of court.”). The record reflects that a conviction was issued in the case
      on September 25, 2011.
8
      See id. art. 102.0045(a) (“A person convicted of any offense, other than an
      offense relating to a pedestrian or parking of a motor vehicle, shall pay as a
      court cost, in addition to all other costs, a fee of $4 to be used to reimburse
      counties for the cost of juror services as provided by Section 61.0015,
      Government Code.”). The record reflects that a conviction was issued in the
      case on September 25, 2011.


                                           6
                  $2   “support of indg defense” 10
               $ 133   “consolidated court costs” 11
         +       $6    “support judiciary fees” 12
               $ 234   “total amount owed”


This bill of costs demonstrates the basis for an award of fees and costs totaling

$234. An additional sum of $10 was incorporated into the judgment for a reason

unexplained in the bill of costs or the state’s appellate brief.



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      See id. art. 102.005(f) (“A defendant convicted of an offense in a . . . district
      court shall pay a fee of $25 for records management and preservation
      services performed by the county as required by Chapter 203, Local
      Government Code.”). The record reflects that a conviction was issued in the
      case on September 25, 2011.
10
      See TEX LOC. GOV’T CODE ANN. § 133.107(a) (West Supp. 2013) (“A person
      convicted of any offense, other than an offense relating to a pedestrian or the
      parking of a motor vehicle, shall pay as a court cost, in addition to other
      costs, a fee of $2 to be used to fund indigent defense representation through
      the fair defense account established under Section 79.031, Government
      Code.”). The record reflects that a conviction was issued in the case on
      September 25, 2011.
11
      See id. § 133.102(a)(1) (entitled “Consolidation Fees on Conviction,” and
      providing: “A person convicted of an offense shall pay as a court cost, in
      addition to all other costs . . . $133 on conviction of a felony . . .”); see also
      TEX. GOV’T CODE ANN. § 102.021(1) (West Supp. 2013). The record reflects
      that a conviction was issued in the case on September 25, 2011.
12
      See TEX LOC. GOV’T CODE ANN. §133.105(a) (West 2008) (“A person
      convicted of any offense, other than an offense relating to a pedestrian or the
      parking of a motor vehicle shall pay as a court cost, in addition to all other
      costs, a fee of $6 to be used for court-related purposes for the support of the
      judiciary.”). The record reflects that a conviction was issued in the case on
      September 25, 2011.

                                            7
      Without any further guidance as to what authority may have justified the

remaining $10 in assessed costs, we conclude that the trial court’s award of court

costs does not accurately comport with the record in that it does not reflect the total

from the “cost bill.” “An appellate court has the power to correct and reform a trial

judgment to make the record speak the truth when it has the necessary data and

information to do so.” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston

[1st Dist.] 2001, no pet.); see also TEX. R. APP. P. 43.2(b). The record supports

modification of the judgment because the record supports court fees totaling to

$234, and the State has suggested no basis upon which any greater amount would

be justified. Accordingly, the trial court’s judgment is modified to reflect that the

court fees to be awarded match the “cost bill” in the record of $234.




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                                    Conclusion

      We modify the trial court’s award of costs to $234 to reflect the

supplemented record. As so modified, the judgment of the trial court is affirmed.

See TEX. R. APP. P. 43.2(b).




                                            Michael Massengale
                                            Justice

Panel consists of Chief Justice Radack and Justices Sharp and Massengale.

Publish. TEX. R. APP. P. 47.2(b).




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