                                                                               PD-0725-15
                       PD-0725-15                            COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
                                                             Transmitted 7/15/2015 3:06:30 PM
                                                               Accepted 7/17/2015 1:53:37 PM
                                                                               ABEL ACOSTA
                               IN THE                                                  CLERK
                     COURT OF CRIMINAL APPEALS

JOSE L. ALDANA,                 §
     APPELLANT                  §
                                §
V.                              §        No. PD-0725-15
                                §
THE STATE OF TEXAS,             §
     APPELLEE                   §

     STATE’S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION
OF THE COURT OF APPEALS FOR THE EIGHTH COURT OF APPEALS
DISTRICT OF TEXAS IN CAUSE NUMBER 08-13-00243-CR, MODIFYING THE
JUDGMENT OF THE TRIAL COURT IN CAUSE NUMBER 1333327R IN THE
396TH JUDICIAL DISTRICT COURT OF TARRANT COUNTY, TEXAS; THE
HONORABLE GEORGE GALLAGHER, PRESIDING.

                                 §§§
                     STATE’S PETITION FOR REVIEW
                                 §§§

                                SHAREN WILSON
                                Criminal District Attorney
                                Tarrant County, Texas

                                DEBRA WINDSOR, Assistant
                                Criminal District Attorney,
                                Chief, Post-Conviction

                                JAMES GIBSON, Assistant
                                Criminal District Attorney
     July 17, 2015              State Bar No. 00787533
                                Tim Curry Criminal Justice Center
                                401 W. Belknap
                                Fort Worth, Texas 76196-0201
                                (817) 884-1687
                                FAX (817) 884-1672
                                CCAAppellateAlerts@TarrantCountytx.gov
                 IDENTITY OF THE PARTIES AND COUNSEL

      The trial judge was Hon. George Gallagher, presiding judge of the 396th

Judicial District Court of Tarrant County, Texas.



      The State of Texas, represented by Sharen Wilson, Tarrant County Criminal

District Attorney, is a party to this litigation. At trial, the State was represented by

William Vassar and Heather Davenport, Assistant Criminal District Attorneys. On

appeal, the State is represented by James Gibson, Assistant Criminal District

Attorney, and Debra Windsor, Assistant Criminal District Attorney. The address of

these attorneys is Office of the Criminal District Attorney of Tarrant County, 401

W. Belknap, Fort Worth, Texas 76196-0201.



      Appellant, Defendant below, is Jose Aldana. Appellant was represented at

trial by Hon. Al Lazarus, 115 W. Second St., Suite 202, Fort Worth, Texas 76102,

and on appeal by Hon. Leigh Davis, 1901 Central Dr., Suite 708 LB 57, Bedford,

Texas 76021.




                                           ii
                                            SUBJECT INDEX


IDENTITY OF THE JUDGE, PARTIES, AND COUNSEL ................................... ii
SUBJECT INDEX ................................................................................................... iii
INDEX OF AUTHORITIES......................................................................................v
STATEMENT REGARDING ORAL ARGUMENT ...............................................1
STATEMENT OF THE CASE ..................................................................................2
PROCEDURAL HISTORY AND COURT OF APPEALS’ OPINION ...................3
QUESTIONS FOR REVIEW ....................................................................................4
FIRST QUESTION FOR REVIEW
         Should a defendant be required to object in the trial court that concurrent

         fines notated on three judgments are improper and should be deleted from

         two of them?

SECOND QUESTION FOR REVIEW
         Is reformation of the judgments to delete fines an appropriate remedy when

         the judgments, on their face, contain no errors, the fines are properly

         notated, and the written judgments do not differ from the trial court’s oral

         pronouncement of sentence?

THIRD QUESTION FOR REVIEW
         Did the Court of Appeals’ opinion amount to an improper “backdoor”

         assessment of a civil law matter for which it had no jurisdiction?


                                                         iii
STATEMENT OF FACTS ........................................................................................5
DISCUSSION ............................................................................................................6
    I.     The Court of Appeals’ opinion ......................................................................6
    II. Appellant should have objected to the fines .................................................7
    III. There was no “error” in the judgment – so there was nothing
         to “reform.” ...................................................................................................9
CONCLUSION ........................................................................................................12
PRAYER ..................................................................................................................13
CERTIFICATE OF COMPLIANCE .......................................................................14
CERTIFICATE OF SERVICE ................................................................................14
COURT OF CRIMINAL APPEALS’ OPINION ....................................APPENDIX




                                                            iv
                                      INDEX OF AUTHORITIES

CASES                                                                                                  PAGE(S)
Aldana v. State,
   No. 08-13-00243-CR, 2015 WL 2344023
   (Tex. App.—El Paso May 14, 2015) ......................................................3, 6, 7, 10

Bigley v. State,
   865 S.W.2d 26 (Tex.Crim.App.1993) .................................................................. 9

Fullbright v. State,
   818 S.W.2d 808 (Tex. Crim. App. 1991) ............................................................. 7

Habib v. State,
  431 S.W.3d 737 (Tex. App.—Amarillo 2014, pet. ref’d) ..........................11, 11n

Harrell v. State,
  286 S.W.3d 315 (Tex. 2009) ..............................................................................12

In re Johnson v. Tenth Judicial District Court of Appeals,
   280 S.W.3d 866 (Tex. Crim. App. 2008) ...........................................................12

Latson v. State,
   440 S.W.3d 119 (Tex. App.—Houston [14th Dist.] 2013, no pet.) ...............8, 12

State v. Crook,
   248 S.W.3d 172 (Tex. Crim. App. 2008) (plurality op.) ..................................6, 9

Warren v. Purtell,
  63 Ga. 428 (1879) ...............................................................................................10

Wiedenfeld v. State,
  450 S.W.3d 905 (Tex. App.—San Antonio 2014, no pet.) ..........................10, 11




                                                         v
STATUTES

TEX. GOV’T CODE §501.014(e) ................................................................................ 9

TEX. R. APP. P. 33.1 ...................................................................................................7

TEX. R. APP. P. 43.2(b) ...............................................................................................9

TEX. R. APP. P. 47.1 ...................................................................................................7




                                                           vi
                                  IN THE
                        COURT OF CRIMINAL APPEALS

JOSE L. ALDANA,                        §
     APPELLANT                         §
                                       §
V.                                     §        No. PD-0725-15
                                       §
THE STATE OF TEXAS,                    §
     APPELLEE                          §

     STATE’S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION
OF THE COURT OF APPEALS FOR THE EIGHTH COURT OF APPEALS
DISTRICT OF TEXAS IN CAUSE NUMBER 08-13-00243-CR, MODIFYING THE
JUDGMENT OF THE TRIAL COURT IN CAUSE NUMBER 1333327R IN THE
396TH JUDICIAL DISTRICT COURT OF TARRANT COUNTY, TEXAS; THE
HONORABLE GEORGE GALLAGHER, PRESIDING.


                STATEMENT REGARDING ORAL ARGUMENT

      Because the State’s arguments involve both legal issues which are unsettled

and the interplay between criminal law and civil matters, oral argument would be

helpful in elucidating the State’s views.




                                            1
                          STATEMENT OF THE CASE

      Appellant was indicted for (1) aggravated sexual assault of a child (digital

penetration); (2) aggravated sexual assault of a child (mouth-to-genital contact);

(3) indecency with a child (touching victim’s sexual organ); (4) indecency with a

child (breast touching); and (5) indecency with a child (causing victim to touch

Appellant’s genitals). CR 6.

      The jury acquitted Appellant of the two aggravated sexual assault counts,

but convicted him of all three indecency counts. RR VI – 4. The jury also assessed

punishment – sixteen years and a $3,000 fine for each count. RR VIII – 4. The trial

court ordered these sentences to run concurrently. Id.




                                         2
      PROCEDURAL HISTORY AND COURT OF APPEALS’ OPINION

      On appeal, Appellant complained that the fines for all three offenses were

“duplicative” and that two of them should be deleted, that the court costs attached

to the third count were insufficiently clear and should be deleted, and that the trial

court’s requirement that court costs be paid as a condition of parole should be

deleted. See App. brief at 2-3 (summary of claims).

      A panel of the El Paso Court of Appeals agreed with Appellant on his first

and third claims and reformed the judgments to delete two of the fines and any

language requiring that court costs be paid as a condition of parole. See Aldana v.

State, No. 08-13-00243-CR, 2015 WL 2344023 at *2 (Tex. App.—El Paso May

14, 2015).




                                          3
                    QUESTIONS FOR REVIEW



(1)   Should a defendant be required to object in the trial court that

      concurrent fines notated on three judgments are improper and should

      be deleted from two of them?

(2)   Is reformation of the judgments to delete fines an appropriate remedy

      when the judgments, on their face, contain no errors, the fines are

      properly notated, and the written judgments do not differ from the trial

      court’s oral pronouncement of sentence?

(3)   Did the Court of Appeals’ opinion amount to an improper “backdoor”

      assessment of a civil law matter for which it had no jurisdiction?




                                  4
                            STATEMENT OF FACTS

      Appellant was indicted for committing five counts of various forms of

sexual abuse against the nine-year-old granddaughter of his wife. CR 6; RR IV –

20-21. The jury acquitted him of two aggravated sexual assault counts, but

convicted him of three counts of indecency with a child. RR IV - 6. The jury’s

verdict at punishment was sixteen years in prison and a $3,000 fine for each count.

RR VIII – 4. The trial court ordered the sentences to be served concurrently. RR

VIII - 5.

      As the State’s petition for review concerns only the court of appeals’

decision to delete fines from two of the judgments, a further recitation of the facts

is unnecessary.




                                         5
                                  DISCUSSION

        This is a case about remedies. Or, to be more precise, how can a court of

appeals fashion a “remedy” to fix a non-erroneous judgment? In the State’s view,

the El Paso Court of Appeals, overly protective of a defendant who might

experience administrative problems in the future, went out of its way to correct

judgments which, on their face, were in perfect order.



   I.      The Court of Appeals’ opinion.

        The El Paso Court correctly noted that Appellant received three judgments

of conviction, each assessing Appellant a fine of $3,000, and each judgment

indicated that Appellant’s sentences would run concurrently. Aldana, 2015 WL

2344023 at *1; CR 174, 179, 184. The opinion goes on to clarify that “[f]ines

which are part of concurrent sentences should also ‘run’ concurrently.” Aldana,

2015 WL 2344023 at *1 (citing State v. Crook, 248 S.W.3d 172, 174 (Tex. Crim.

App. 2008) (plurality op.)).

        These facially appropriate judgments were not, however, enough for the

court of appeals. Opining that “the clerks and functionaries with the Texas

Department of Corrections [sic]” might not understand the concept of concurrent

fines, the El Paso Court deleted the fines from two of the judgments. Id. at *2.


                                            6
With regard to Appellant’s complaint that the withdrawal orders should also be

deleted, and with regard to the State’s response that the court of appeals was

without jurisdiction to consider what was essentially a civil matter, the court of

appeals asserted that this issue was mooted by the deletion of the fines from the

judgments. Id.



   II.      Appellant should have objected to the fines

         In its reply brief to the court of appeals, the State argued that Appellant

should have objected if he felt that he would be unduly penalized by judgments

which accurately reflected the jury’s verdicts (i.e., three judgments each containing

a $3,000 fine). See State’s brief at 6 (citing TEX. R. APP. P. 33.1).

         The court of appeals’ opinion mentions this argument, but does not address

it. See Aldana, 2015 WL 2344023 at *1. It should have. See TEX. R. APP. P. 47.1

(opinion should address “every issue raised and necessary to final disposition of

the appeal”). At the very least, this case should be remanded to the court of appeals

to consider the State’s preservation argument.

         In any event, Appellant’s failure to object should result in a forfeiture of his

claim. First, he does not contend that the sentence was void or illegal. See, e.g.,

Fullbright v. State, 818 S.W.2d 808, 809 (Tex. Crim. App. 1991) (defect that


                                             7
renders sentence void may be raised at any time). At worst, Appellant appears to

make the peculiar claim that his sentence will merely be misinterpreted by prison

authorities. See App. brief at 7 (“Thus, [Appellant] is obligated to pay all three of

these fines, and payment for them will be extracted from his TDCJ trust account

and remitted to the Tarrant County District Clerk.”).

      Second, this is not a case where Appellant was unable to object – for

example, if a later-generated paper judgment did not accurately reflect what

occurred in court, it might have been too late to object. In this case, after reading

the jury verdicts (each of which levied a fine of $3,000), the trial judge sentenced

Appellant: “the jury having found you guilty and returned the verdict of 16 years

and a $3,000 fine in each count….” RR VIII – 8. Appellant should have been

under a clear impression that a written judgment (or, in this case, judgments)

would specifically delineate a $3,000 fine for each conviction. Had Appellant felt

an impending ambiguity that he now claims is obvious, he should have objected at

the time. See Latson v. State, 440 S.W.3d 119, 123 (Tex. App.—Houston [14th

Dist.] 2013, no pet.) (defendant required to complain in trial court about possible

improper withdrawals from his inmate trust fund to satisfy court costs).

      Because Appellant did not object, the court of appeals should have held that

he forfeited his claim.


                                         8
III.      There was no “error” in the judgment – so there was nothing to

          “reform.”

       It is axiomatic that, before an erroneous judgment may be reformed by an

appellate court, there must be some “error.” See TEX. R. APP. P. 43.2(b); Bigley v.

State, 865 S.W.2d 26, 27 (Tex.Crim.App.1993) (acknowledging an appellate

court’s ability to reform a judgment resulting from clerical or substantive errors).

Here, the jury clearly assessed a $3,000 fine for each count of the indictment. CR

168, 169, 170. The trial court’s oral pronouncement of sentence reflected that and

additionally clarified that Appellant’s sentences would run concurrently. RR VIII –

8; see Crook, 248 S.W.3d at 174. The written judgments memorialized these

concurrent sentences. CR 173, 179, 184. Included with the judgments are orders to

the Texas Department of Criminal Justice to withdraw funds from Appellant’s

inmate trust account. CR 177, 182, 187. See TEX. GOV’T CODE §501.014(e)

(mechanism for withdrawing funds from inmate trust account). All three

withdrawal orders reflect a fine of $3,000. Id. One of them includes court costs.

CR 177.

       Given that the written judgments agreed with the oral pronouncement of

sentence, there was simply no error to correct. However, in a fit of semi-nunc pro

tunc jiu jitsu, the El Paso Court has speculatively employed a kind of all-purpose


                                         9
Murphy’s Law – an assumption that mere functionaries in the prison system are

unable to understand the law and will charge Appellant $9,000 instead of the

$3,000 he actually owes. Aldana, 2015 WL 2344023 at *2. In fact, the court of

appeals doesn’t even seem particularly convinced that this assumption is true, only

that it might be “probable.” See id. (quoting Warren v. Purtell, 63 Ga. 428, 430

(1879) (“it is always probable that something improbable will happen”)).

      This is thin gruel indeed on which to base a decision that these judgments

need fixing. There is no reason to presume incompetence on the part of the

Institutional Division of the Department of Criminal Justice, and there is no reason

to think that the concept of a “concurrent fine” is beyond the ken of those who

work in the Classification and Records Department. As the State pointed out

below, it would be unwarranted to presume that the Division would confine

Appellant for forty-eight years just because each of his separate (but concurrent)

judgments indicated a sentence of sixteen years. State’s brief at 5.

      There are, obviously, similar situations in which reformation might be

appropriate. For example, in Wiedenfeld v. State, 450 S.W.3d 905 (Tex. App.—San

Antonio 2014, no pet.), the trial court orally pronounced concurrent fines of $1,000

on two counts. Id. at 906. Despite this, however, the subsequent judgment put the

defendant on the hook for $2,000. Id. The court of appeals understandably


                                          10
reformed the judgment to reflect a fine of $1,000.1 Id. at 907. This is obviously

distinguishable from Appellant’s situation. In Appellant’s case, the trial court’s

oral pronouncement does not deviate in any way from the written judgments.

       More troubling, perhaps, is the Amarillo Court of Appeals’ opinion in Habib

v. State, 431 S.W.3d 737 (Tex. App.—Amarillo 2014, pet. ref’d). The two written

judgments in that case accurately reflected that two $5,000 fines would run

concurrently. Id. at 742. However, because there was a $5,000 fine included in

both bills of costs, the court of appeals determined that the fines were effectively

cumulated. Id. Thus, the court deleted the $5,000 fine from one of the judgments.

Id. Although the Amarillo court did not engage in any real analysis of the issue 2, it

seemed to be of the same mind as the El Paso court – that multiple bills of costs

(or, perhaps, withdrawal orders) would be too confusing for prison officials and

would induce them to ignore the law of concurrent fines. But that is no reason for a

court of appeals to delete fines from an otherwise healthy judgment of conviction.

       As far as the withdrawal orders are concerned, the State adheres to its earlier

argument that Appellant’s worries about the withdrawal orders have nothing to do

with the appeal of his conviction. See State’s brief at 5-6. As the Texas Supreme

Court has pointed out, “a withdrawal order does seize payment for costs previously
1
  Unlike in Appellant’s case, both counts in Wiedenfeld’s situation were apparently both
subsumed into one judgment.
2
  This was probably because the State conceded the point of error in full. See Habib, 431 S.W.3d
at 742.
                                               11
taxed in a criminal case, but the criminal case is over.” Harrell v. State, 286

S.W.3d 315, 318 (Tex. 2009). See also id. (“Harrell is not contesting the convicting

court’s authority to assess costs but its authority to collect costs.”) (emphasis in

original); In re Johnson v. Tenth Judicial District Court of Appeals, 280 S.W.3d

866, 873 (Tex. Crim. App. 2008) (an inmate trust account withdrawal order is not

appealable as a criminal law matter). Indeed, it appears that because the El Paso

Court was precluded by Harrell and Johnson from adjudicating the withdrawal

order, it simply used its reformation of the judgment to, in its words, “moot[ ]”

that order. Further, as no withdrawal has been made, Appellant should have

nothing to complain about. See Latson, 440 S.W.3d at 123 (defendant’s complaints

about costs are meritless where “the record contains no evidence that funds have

been withdrawn from [defendant’s] inmate trust fund”).



                                 CONCLUSION

      A jury convicted Appellant of three separate indecency-with-a-child

offenses. That same jury then determined that each count deserved a fine of $3,000

(along with three prison sentences of sixteen years). The trial court ordered that

these sentences (including, necessarily, the fines) run concurrently. However, the

El Paso Court of Appeals has chosen to judicially abrogate the jury’s decision and


                                        12
delete the fines from two of the judgments, based on its unsupported assumption

that officials in the prison system will misunderstand the law and take three times

from Appellant what he owes.

      The El Paso Court’s opinion is a remedy in search of a problem, and this

Court should correct it.



                                    PRAYER

      The State prays that its petition be granted and that the Court of Appeals’

judgment deleting fines from two of the trial court’s judgments be reversed.

                                      Respectfully submitted,

                                      SHAREN WILSON
                                      Criminal District Attorney
                                      Tarrant County, Texas

                                      DEBRA WINDSOR, Assistant
                                      Criminal District Attorney,
                                      Chief, Post-Conviction

                                      /s/ James Gibson
                                      JAMES GIBSON, Assistant
                                      Criminal District Attorney
                                      State Bar No. 00787533
                                      Tim Curry Criminal Justice Center
                                      401 W. Belknap
                                      Fort Worth, Texas 76196-0201
                                      (817) 884-1687
                                      FAX (817) 884-1672
                                      CCAappellatealterts@tarrantcountytx.gov

                                        13
                       CERTIFICATE OF COMPLIANCE

      I certify that this document contains 1,808 words.

                                              /s/ James Gibson
                                              JAMES GIBSON

                          CERTIFICATE OF SERVICE

      A copy of the State’s petition for discretionary review has been e-served to

opposing counsel, the Hon. Leigh Davis, leaghwdavis@gmail.com, 1901 Central

Dr., Ste. 708, Bedford, Texas 76021 and to the Hon. Lisa McMinn, State’s

Prosecuting Attorney’s Office, information@spa.texas.gov, P. O. Box 13046,

Austin, Texas 78711, on July 15, 2015.

                                      /s/ James Gibson
                                      JAMES GIBSON




                                         14
        APPENDIX



COURT OF APPEALS’ OPINION
Aldana v. State, Not Reported in S.W.3d (2015)


                                                                   basis, $3,654 from Appellant's account until the total sum is
                                                                   paid. The judgments for Counts Four and Five also assess the
                  2015 WL 2344023
                                                                   $3,000 fine, but do not assess any court costs. The judgments
    Only the Westlaw citation is currently available.
                                                                   of conviction for Counts Four and Five also include an order
          SEE TX R RAP RULE 47.2 FOR                               to withdraw funds for the respective $3,000 fines attributed
    DESIGNATION AND SIGNING OF OPINIONS.                           to each count.

                  (DO NOT PUBLISH)                                 Appellant brings three issues for review. In Issue One, he
                Court of Appeals of Texas,                         contends that we should reform two of the judgments to
                         El Paso.                                  delete the $3,000 fine because when the jail sentences run
                                                                   concurrently, the fines must also run concurrently. In Issue
                Jose L. Aldana, Appellant,
                                                                   Two, Appellant complains that the Bill of Costs is defective.
                             v.                                    Finally, in Issue Three, he argues that the Bill of Costs should
               The State of Texas, Appellee.                       be reformed to delete the requirement that court costs must be
                                                                   paid as a condition of parole.
        No. 08–13–00243–CR            |   May 14, 2015

Appeal from 396th District Court of Tarrant County, Texas
(TC # 1333327R)                                                                      DUPLICATIVE FINES

Before McClure, C.J., Rodriguez, and Hughes, JJ.                   Fines which are part of concurrent sentences should also
                                                                   “run” concurrently. State v. Crook, 248 S.W.3d 172, 174
                                                                   (Tex.Crim.App.2008). The holding in Crook is based on
                          OPINION                                  Tex. Penal Code Ann. § 3.03(a)(West Supp.2014), which in
                                                                   relevant part provides that “sentences shall run concurrently”
ANN CRAWFORD McCLURE, Chief Justice                                when “the accused is found guilty of more than one offense
                                                                   arising out of the same criminal episode prosecuted in a
 *1 This appeal arises out of Appellant's conviction on three
                                                                   single criminal action.” Id. The sentences for certain crimes,
counts of indecency with a child. Because his only issues for
                                                                   such as Appellant was convicted of here, can run either
review pertain to the monetary fine which was assessed, and
                                                                   concurrently or consecutively. Id. at § 3.03(b)(2). The trial
the Bill of Costs, we limit our discussion of the facts to those
                                                                   judge here ordered the sentence to run concurrently, and we
discrete issues.
                                                                   accept the State's concession that the fines should similarly
                                                                   run concurrently, in the sense that if Appellant pays one fine,
                                                                   he pays them all.
                  FACTUAL SUMMARY
                                                                   The State suggests that there is no proof that the Texas
Appellant was charged with two counts of aggravated sexual         Department of Corrections will treat the three fines
assault of a child (Counts One and Two of the indictment) and      cumulatively, no more so than it would treat his sentence
three counts of indecency with a child (Counts Three, Four,        cumulatively. It further responds that we should not modify
and Five). He was acquitted on the two aggravated sexual           the order to withdraw funds because it is a civil matter.
assault counts, but convicted on all three indecency counts        Finally, the State alleges that any ambiguity in the judgments
(Counts Three, Four, and Five). The jury assessed a sixteen-       of conviction should have been raised in the trial court.
year sentence and a $3,000 fine on each of the indecency
counts. The judgments of conviction for Counts Three, Four,         *2 There is perhaps some ambiguity in the judgments with
and Five require the sentences to run concurrently. The            regard to the fines. The court costs are included in only
judgment for Count Three assesses a $3,000 fine and taxes an       one judgment, but the fines appear in all three, even though
itemized Bill of Costs totaling $654, making the total amount      both the fines and court costs are intended to be treated the
due $3,654. An order to withdraw funds, which is expressly         same (i.e. taxed concurrently). And as the Texas Court of
incorporated into the judgment, directs the Texas Department       Criminal Court of Appeals alluded to in Crook, it is natural
of Criminal Justice to withdraw on a percentage formula            to say that a sentence runs concurrently, because of the



                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                             1
Aldana v. State, Not Reported in S.W.3d (2015)


                                                                      abbreviations which are undecipherable (i.e. “DC Rec Pre
temporal element of a prison sentence. Id. at 175. But paying
                                                                      & Auto,” “PO Commit/Rel,” “Jud Support–CRM,” “CCC–
a fine concurrently is perhaps not as intuitive a concept. In
                                                                      Felony”). He concedes that the Fort Worth Court of Appeals
an ideal world, the clerks and functionaries with the Texas
Department of Corrections would understand the import of              has heard and rejected this same complaint. 1 Lawrence
State v. Crook. But as a jurist once noted, “it is always             v. State, 420 S.W.3d 329 (Tex.App.—Fort Worth, 2014,
probable that something improbable will happen.” Warren v.            pet. refd); Cranfill v. State, No. 02–13–00567–CR, 2014
Purtell, 63 Ga. 428, 430 (1879). Accordingly, we reform the           WL 4946979 *1 (Tex.App.—Fort Worth, Oct. 2, 2014,
judgments of conviction for Counts Four and Five to delete            no pet.)(mem. op., not designated for publication)(noting
the $3,000 fine reflected in each. Tex.R.App.P. 43.2(b)(“The          abbreviations in Bill of Cost correlated to statutorily imposed
court of appeals may: ... (b) modify the trial court's judgment       fees and charges). We further reject Appellant's claim that
and affirm it as modified”). The $3,000 fine for Count Three          the abbreviations deny him due process for lack of fair
remains in place, and Appellant asserts no other ground to            notice. As noted in Johnson v. State, the mandatory costs are
with regard to that Count.                                            fixed by published statutes which give criminal defendants
                                                                      constructive notice of their provisions. 423 S.W.3d at 389.
We generally agree with the State that orders to withdraw             Accordingly, we overrule Issue Two.
funds are essentially civil matters falling outside the scope
of our jurisdiction in a criminal appeal. See Lewis v. State,         1       In this transferred appeal, we are obliged to follow the
No. 05–12–00844–CR, 2014 WL 31690 at *7 (Tex.App.-                            precedents of the Fort Worth Court of Appeals. See
Dallas Jan. 6 2014, pet. ref'd)(mem. op. not designated for                   TEX.R.APP.P. 41.3.
publication)(“The withdrawal order is not a criminal matter; it       In Issue Three, Appellant complains that the Bill of Costs
stems from a civil proceeding that is separate and independent        erroneously requires that any unpaid portion must be paid
from the judgment that assessed appellant's conviction and            as a condition of parole (“Any amounts reflected above that
sentence.”), citing Harrell v. State, 286 S.W.3d 315, 317–            are unpaid at the time of parole shall be paid as a condition
19 (Tex.2009) and In re Johnson, 280 S.W.3d 866, 873–                 of parole”). Setting conditions of parole is a power reserved
74 (Tex.Crim.App.2008). The order to withdraw funds in                to the executive branch, rather than the judiciary. Ceballos
Counts Four and Five, however, are expressly incorporated             v. State, 246 S.W.3d 369, 373 (Tex.App.—Austin 2008,
into the judgments of conviction and became part of it.               pet ref'd). The judiciary can only make recommendations
Having reformed the judgments of convictions in Four and              regarding conditions of parole. Id. The State concedes this
Five to delete the $3,000 fine, the orders to withdraw funds          error and requests that we reform the Bill of Costs to
are necessarily mooted.                                               remove that condition. See Bray v. State, 179 S.W.3d 725,
                                                                      728 (Tex.App.—Fort Worth 2005, no pet.)(noting authority
                                                                      to reform judgment which improperly required payment of
        CHALLENGE TO THE BILL OF COST                                 attorney's fees as condition of obtaining parol).

“A cost is not payable by the person charged with the cost             *3 We therefore modify the judgment of conviction for
until a written bill is produced or is ready to be produced,          Counts Four and Five to delete the $3,000 fine in each of
containing the items of cost, signed by the officer who               those judgments. We grant relief under Issue Three to the
charged the cost or the officer who is entitled to receive            extent that we reform the judgment of conviction for Count
payment for the cost.” Tex.Code Crim. Proc. art. 103.001              Three to delete from the Bill of Cost the following statement:
(West 2006). A cost bill is not essential to tax court costs          “Any amounts reflected above that are unpaid at the time of
against a criminal defendant, but it is favored and preferred.        parole shall be paid as a condition of parole.” We affirm the
Johnson v. State, 423 S.W.3d 385 (Tex.Crim.App.2014)                  judgments as modified.
(holding there is no requirement for challenging costs with
the trial court).
                                                                      All Citations
Appellant here claims that the Bill of Costs is defective
                                                                      Not Reported in S.W.3d, 2015 WL 2344023
because the itemized charges are identified only by shorthand

End of Document                                                   © 2015 Thomson Reuters. No claim to original U.S. Government Works.



               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                       2
