                                                                                        ACCEPTED
                                                                                   03-14-00615-CR
                                                                                          3951606
                                                                         THIRD COURT OF APPEALS
                                                                                    AUSTIN, TEXAS
February 2, 2015                                                              1/29/2015 2:54:52 PM
                                                                                 JEFFREY D. KYLE
                                                                                            CLERK
                          CAUSE NO. 03-14-00615-CR

              _________________________________________________
                                                           RECEIVED IN
                                                  3rd COURT OF APPEALS
                                                      AUSTIN, TEXAS
                        IN THE COURT OF APPEALS   1/29/2015 2:54:52 PM
                    FOR THE THIRD DISTRICT OF TEXAS JEFFREY D. KYLE
                             AUSTIN DIVISION              Clerk
              _________________________________________________


     ALEXIS MARIE IRELAND           §
                                    §
     v.                             §
                                    §
     STATE OF TEXAS                 §

               _______________________________________________

                       AMENDED APPELLANT’S BRIEF
               _______________________________________________




                                    Justin Bradford Smith
                                    Texas Bar No. 24072348
                                    Harrell, Stoebner, & Russell, P.C.
                                    2106 Bird Creek Drive
                                    Temple, Texas 76502
                                    Phone: (254) 771-1855
                                    FAX: (254) 771-2082
                                    Email: justin@templelawoffice.com

                                    ATTORNEY FOR APPELLANT


     ORAL ARGUMENT NOT REQUESTED


                                        1
                 IDENTITY OF PARTIES AND COUNSEL

Appellant
     Alexis Marie Ireland

Appellant’s Counsel
     Justin Bradford Smith
     Harrell, Stoebner, & Russell, P.C.
     2106 Bird Creek Drive
     Temple, Texas 76502
     Phone: (254) 771-1855
     FAX: (254) 771-2082
     Email: justin@templelawoffice.com

Appellant’s Trial Counsel
     Jack Holmes
     1610 South 31st Street, Suite 102, PMB 235
     Temple, TX 76504

Appellee
     State of Texas

Appellee’s Trial Counsel
     Leslie McWilliams
     Bell County District Attorney
     P.O. Box 540
     Belton, Texas 76513
     Telephone: (254) 933-5215
     Fax: (254) 933-5238

Appellee’s Appellate Counsel
     Bob Odom
     Bell County District Attorney’s Office
     Email: DistrictAttorney@co.bell.tx.us




                                       2
                        TABLE OF CONTENTS

Identity of Parties and Counsel…………………………..………………………... 2

Table of Contents……………………………………….…………………………..3

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

Statement of the Case……………………………………….……………………...5

Issue Presented….……………..………....…………………….….……………….5

    ISSUE ONE: The judgment contains an erroneous amount of costs because
               it includes two costs not supported by a factual basis nor, in
               one case, a statute……………………………………………5

Statement of Facts…………………………………..………………………….......5

Summary of the Argument……………………………..…………………….......5-6

    ISSUE ONE: The judgment contains an erroneous amount of costs because
               it includes two costs not supported by a factual basis nor, in
               one case, a statute……………………………………………5

Argument…………………………………………………………………............7-9

Standard of Review and Applicable Law…...……………………………………...7

Application………………………………………………..………………….......7-9

Conclusion……………………………………………………………………….....9

Prayer…………………..……………………………………………………...........9

Certificate of Compliance………………………………………………………....10

Certificate of Service……………………………………………………………...10




                                     3
                       INDEX OF AUTHORITIES

Texas Court of Criminal Appeals:

Johnson v. State, 423 S.W.3d 385
     (Tex. Crim. App. 2014)……………………………………………………...7

Statutes/Rules:

Tex. Code Crim. Proc. Ann. art. 42.22…………………………………..…………8

Tex. Code Crim. Proc. Ann. art. 102.072………………………………………...7-8

Tex. Gov’t Code Section 103.024…………………………………………..........7-8




                                   4
                           STATEMENT OF THE CASE

Nature of the Case:        This is an appeal from a conviction for burglary of a
                           habitation. (I C.R. at 45)

Judge/Court:               Judge John Gauntt, 27th District Court, Bell County.

Pleas:                     Appellant pled guilty. (VI R.R. at 11-12); (VIII R.R. at
                           SX-1 “Judicial Confession (No. 72,691)”)

Trial Court Disposition: The trial court sentenced Appellant to 180 days in the
                          state jail division and imposed $251.00 in court costs.
                         (VII R.R. at 8) (I C.R. at 45).

                                ISSUE PRESENTED

         ISSUE ONE: The judgment contains an erroneous amount of costs because

it includes two costs not supported by a factual basis nor, in one case, a statute.

                               STATEMENT OF FACTS

         Few facts are relevant to this appeal. The written judgment imposes $251.00

in costs but no restitution. (I C.R. at 45). The bill of costs imposes a two dollar

“Administrative Transaction Fee” and a five dollar “State Elect Filing Fee—

Crimi”. (I C.R. at 48). All costs are noted as unpaid, (I C.R. at 48), and the record

shows no attempts to collect any fees. Also, there is no affidavit in the record to

support the five dollar fee.

                        SUMMARY OF THE ARGUMENT

         ISSUE ONE: The judgment contains an erroneous amount of costs because

it includes two costs not supported by a factual basis nor, in one case, a statute.


                                           5
      Court costs may be challenged for the first time on appeal, and they require a

statutory and factual basis to withstand such a challenge.

      The judgment imposes $251 in costs.          Of those, two dollars is for an

“Administrative Transaction Fee” and five dollars is for a “State Elect Filing Fee—

Crimi”.

      While there is a statutory basis for the administrative transaction fee, the

factual basis is lacking because the statute only permits the fee to be imposed when

there has been an attempt to collect the fee, and there is no evidence that an officer

has tried to collect any fees.

      There does not seem to be a statutory basis for the “State Elect Filing Fee—

Crimi”. However, if the statutory basis comes from Texas Government Code

Section 103.024, the five dollar fee permitted there is for a restitution lien under

Article 42.22 of the Texas Code of Criminal Procedure. Here, no restitution was

awarded, so no fee should be permitted. Additionally, no affidavit appears in the

record to support the fee, as required by Article 42.22. This provides an additional

reason the fee cannot be imposed.

      Both fees should be deleted and the judgment modified accordingly.




                                          6
                                   ARGUMENT

Standard of Review and Applicable Law

       A challenge to the bases of assessed court costs may be raised for the first

time on appeal. Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014).

When reviewing the record supporting court costs, the appellate court determines

whether there is a “basis for the cost”, not whether there is “sufficient evidence

offered at trial to prove each cost”.     Id. at 390.    Thus, “traditional Jackson

evidentiary sufficiency principles do not apply.” Id.

       Court costs need not be “orally pronounced nor incorporated by reference in

the judgment to be effective.” Id. at 389. Therefore, “when a specific amount of

court costs is written in the judgment, an appellate court errs when it deletes the

specific amount if there is a basis for the cost.”      Id.   Still, only “statutorily

authorized court costs may be assessed against a criminal defendant”. Id. Thus,

when evaluating court costs, the reviewing court determines whether there is a

statutory basis for the costs and whether there are facts to support them. Id. at 395-

396.

Application

       1. The Factual Basis for the Administrative Transaction Fee is Lacking

       Article 102.072 of the Texas Code of Criminal Procedure permits a two




                                          7
dollar fee to be imposed “for each transaction made by the officer or department

relating to the collection of fines, fees, restitution, or other costs imposed by a

court. The fee may not exceed $2 for each transaction.” Here, the bill of costs

contains this fee. (I C.R. at 48). However, the record contains no evidence that

any fines, fees, restitution, or other costs have been collected, or that anyone has

tried to collect these fees. In fact, the bill of costs shows Appellant owes the full

amount of costs. (I C.R. at 48). Therefore, by the terms of the statute itself, this

fee cannot be imposed now: it is premature. As such, the Court should delete this

fee from the judgment.

      2. The Statutory and Factual Bases for the “State Elect Filing Fee—
         Crimi” is Lacking

      The bill of costs imposes a “State Elect Filing Fee—Crimi” in the amount of

$5.00. (I C.R. at 95). Appellant cannot determine the statutory basis for this fee.

It is possible it comes from Texas Government Code Section 103.024, which

allows for a $5 fee for filing a restitution lien under Article 42.22 of the Texas

Code of Criminal Procedure. However, here no restitution was ordered, (I C.R. at

45), so if these statutes provide the basis for the fee, then this fee cannot be

imposed on these facts. Moreover, section 5 of Article 42.22 requires an affidavit

to be filed to perfect the restitution lien. Here, no such affidavit appears in the

record. Therefore, either the fee is without a statutory basis, or if the statutes just



                                          8
cited provide that basis, then the factual predicate for assessing this fee is lacking

on two accounts. In either event, the fee should be deleted.

Conclusion

      Because there is no factual basis for the two dollar Administrative

Transaction Fee, and there is no statutory or factual basis for the five dollar “State

Elect Filing Fee—Crimi”, they must be deleted from the judgment and the

judgment modified accordingly.

                                     PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant asks this Court to

MODIFY the trial court’s judgment as argued above and AFFIRM the judgment as

modified.

                                       Respectfully submitted:

                                       /s/ Justin Bradford Smith
                                       Justin Bradford Smith
                                       Texas Bar No. 24072348

                                       HARRELL & STOEBNER, P.C.
                                       2106 Bird Creek Drive
                                       Temple, Texas 76502
                                       Phone: (254) 771-1855
                                       FAX: (254) 771-2082
                                       Email: justin@templelawoffice.com

                                       ATTORNEY FOR APPELLANT




                                          9
                     CERTIFICATE OF COMPLIANCE

       I hereby certify that, pursuant to Rule 9 of the Texas Rules of Appellate
Procedure, Appellant’s Brief contains 867 words, exclusive of the caption, identity
of parties and counsel, statement regarding oral argument, table of contents, index
of authorities, statement of the case, statement of issues presented, statement of
jurisdiction, statement of procedural history, signature, proof of service,
certification, certificate of compliance, and appendix.


                                             /s/ Justin Bradford Smith
                                             Justin Bradford Smith




                         CERTIFICATE OF SERVICE

      I hereby certify that on January 29, 2015, a true and correct copy of

Appellant’s Brief was forwarded to the counsel below by eservice:

      Bob Odom
      Bell County District Attorney’s Office
      P.O. Box 540
      Belton, Texas 76513
      Email: DistrictAttorney@co.bell.tx.us


                                             /s/ Justin Bradford Smith
                                             Justin Bradford Smith




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