      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-15-00236-CR



                           Christopher Ray Weatherspoon, Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
          NO. 57326, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING



                             MEMORANDUM OPINION

                Appellant Christopher Ray Weatherspoon was placed on deferred adjudication

community supervision after he pleaded guilty to sexual assault of a child. See Tex. Penal Code

§ 22.011. The State subsequently filed a motion to adjudicate guilt based on alleged violations of

community supervision. Appellant pleaded true to all of the allegations, and after a hearing, the trial

court adjudicated him guilty of the offense of sexual assault of a child and sentenced him to six

years’ imprisonment. See Tex. Code Crim. Proc. art. 42.12, § 5; Tex. Penal Code § 12.33.

                Appellant’s court-appointed attorney filed a motion to withdraw supported by a brief

concluding that the appeal is frivolous and without merit. The brief meets the requirements of

Anders v. California by presenting a professional evaluation of the record demonstrating why there

are no arguable grounds to be advanced. See Anders v. California, 386 U.S. 738, 744 (1967);

Garner v. State, 300 S.W.3d 763, 766 (Tex. Crim. App. 2009); see also Penson v. Ohio, 488 U.S. 75,

81-82 (1988).
               Counsel has certified to this Court that he provided a copy of the motion and brief to

appellant, advised appellant of his right to examine the appellate record and file a pro se response,

and supplied appellant with a form motion for pro se access to the appellate record along with a

mailing address for this Court. See Kelly v. State, 436 S.W.3d 313, 319-21 (Tex. Crim. App. 2014);

see also Anders, 386 U.S. at 744; Garner, 300 S.W.3d at 766. We have not received a pro se brief

from appellant.

               We conducted an independent review of the record, including appellate counsel’s

brief, and find no reversible error. See Anders, 386 U.S. at 744; Garner, 300 S.W.3d at 766; Bledsoe

v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005). We agree with counsel that the record

presents no arguably meritorious grounds for review and that the appeal is frivolous. Counsel’s

motion to withdraw is granted.

               Although there are no meritorious grounds for reversal of the conviction, counsel

raised a challenge to some of the court costs assessed against appellant in the judgment adjudicating

guilt and requested that we modify the court costs assessed in the judgment. Acting pro se, appellant

filed a motion for correction of costs setting forth the identical arguments made by appellate counsel.

In addition to challenging the court costs, appellate counsel also contends that the judgment

adjudicating guilt erroneously indicates that appellant entered into a plea agreement with the State.

We have the authority to correct a trial court’s judgment when we have the necessary information

to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App.

1993); Figueroa v. State, 250 S.W.3d 490, 518 (Tex. App.—Austin 2008, pet. ref’d). We will

address each issue below.



                                                  2
Court Costs

               Court costs are pre-determined, legislatively-mandated obligations resulting from a

conviction. See Tex. Code Crim. Proc. art. 42.15 (requiring convicted defendant to pay court costs

when punishment is only fine); id. art. 42.16 (requiring convicted defendant to pay court costs when

punishment is something other than fine); Ireland v. State, No. 03-14-00616-CR, 2015 WL 4914982,

*2 (Tex. App.—Austin Aug. 12, 2015 , no pet.) (mem. op., not designated for publication); Houston

v. State, 410 S.W.3d 475, 477–78 (Tex. App.—Fort Worth 2013, no pet.); see also Johnson v. State,

423 S.W.3d 385, 389 (Tex. Crim. App. 2014). The imposition of court costs upon a criminal

defendant is a nonpunitive recoupment of the costs of judicial resources expended in connection with

the trial of the case. Johnson, 423 S.W.3d at 390. Courts costs assessed against a criminal defendant

must be statutorily authorized. See id. at 389; Tex. Code Crim. Proc. art. 103.002 (“An officer may

not impose a cost for a service not performed or for a service for which a cost is not expressly

provided by law.”). When an appellant challenges the imposition of court costs, we review the

assessment of costs to determine if there is a basis for the costs, not to determine whether there is

sufficient evidence to prove each cost. See Johnson, 423 S.W.3d at 390.

               Here, the record contains a certified bill of costs for $551, listing fourteen costs

assessed against appellant. Appellant challenges twelve of the fourteen costs, arguing that (1) some

of them should not have been included because they were already assessed against appellant when

he received deferred adjudication community supervision, (2) some of them should not have been

included because the statute authorizing the costs was not in effect at the time of the underlying




                                                 3
offense, and (3) one of them is not statutorily authorized. We will address each argument as it

pertains to the relevant costs.


        A.      Assessing Costs for Deferred Adjudication and Adjudication of Guilt

                Appellant contends that the fees listed in the bill of costs for the district clerk, sheriff,

courthouse security, district clerk record preservation, records management, consolidated court costs,

and DNA testing were improperly assessed at the time of adjudication of guilt because the record

shows that the court assessed (and appellant paid) the same fees at the time that he received deferred

adjudication community supervision. We agree that the record shows that appellant paid court costs

assessed at the time that he received deferred adjudication community supervision, but we disagree

that the trial court improperly assessed further costs at the time the court adjudicated appellant guilty.

                To the extent appellant challenges the court costs assessed when he was placed on

deferred adjudication community supervision, he is procedurally barred from doing so. See Perez

v. State, 424 S.W.3d 81, 85 (Tex. Crim. App. 2014) (failure to file timely appeal of assessment of

costs in deferred adjudication order forfeits appellate complaint regarding those costs); Ireland,

2015 WL 4914982, at *3–4. To the extent appellant challenges the costs assessed at the time of

adjudication of guilt on the basis that the costs were already assessed at the point of receiving

deferred adjudication community supervision, the challenge is without merit. Although appellant

references the nonpunitive nature of court costs and cites to a recently enacted statute providing that

court costs should not be assessed for each count or offense in one criminal action, he has not cited

to, nor have we found, any authority barring the assessment of costs at both the time of the deferred

adjudication order and the time of adjudication of guilt. On the contrary, the statutes authorizing the

                                                     4
assessment of court costs upon conviction define the term “conviction” as including both deferred

adjudication community supervision and the imposition of a judgment or sentence. See Tex.

Code Crim. Proc. arts. 102.005(b), 102.020(c); Tex. Local Gov’t Code § 133.101.

               We also note that costs assessed at the point of receiving deferred adjudication

community supervision and then again at the point of adjudication of guilt are distinguishable from

costs assessed for each count or offense in one criminal action. A violation of community

supervision requires a new and separate court proceeding from the original proceeding resulting in

deferred adjudication community supervision. Further, cases addressing costs that were assessed at

both points in time suggest that the assessment of costs at each point is appropriate. Perez,

424 S.W.3d at 86; Ireland, 2015 WL 4914982, at *3–4. For example, in Perez, the defendant

challenged costs assessed at both points of time, and the Court of Criminal Appeals determined that

the defendant was barred from challenging the costs assessed at the time of the deferred adjudication

community supervision order because he had not timely appealed them and then remanded the case

to the court of appeals for consideration of the challenge to the costs assessed at the time of

adjudication of guilt. Perez, 424 S.W.3d at 86. On remand, the court of appeals held that the costs

assessed at adjudication of guilt were proper because they were supported by a certified bill of costs.

See Perez v. State, No. 14-12-00893-CR, 2014 WL 1618370, *1–2 (Tex. App.—Houston [14th

Dist.] Apr. 22, 2014, no pet.) (mem. op., not designated for publication).

               Regarding the authority for the costs themselves, all of the costs challenged by

appellant are authorized by statute. See Tex. Code Crim. Proc. art. 102.005(a) (mandating fee for

clerk of court); id. art. 102.005(f)(1) (requiring fee for records management and preservation in



                                                  5
various county offices); id. art. 102.005(f)(2) (mandating fee for records management and

preservation services performed by clerk of court); id. art. 102.017(a) (requiring fee for courthouse

security); id. art.102.020(a)(1) (requiring payment of costs related to DNA testing); Tex. Local Gov’t

Code § 133.102(a)(1) (mandating consolidated court cost “on conviction of a felony”). The statutory

authority, coupled with the certified bill of costs, provides a sufficient basis for the costs. See

Johnson, 423 S.W.3d at 390, 394-96; Ireland, 2015 WL 4914982, at *3.


       B.      Date of Effectiveness of Statutes Authorizing Costs

               Appellant also contends that some of the court costs—the court technology fund fee,

the jury service fund fee, the judiciary support fee, and the basic criminal legal services fee—should

not have been assessed because the statute authorizing the costs was not in effect at the time of the

underlying offense. In support of his argument, appellant cites to section 51.608 of the Texas

Government Code, which states:


       Notwithstanding any other law that establishes the amount of a court cost collected
       by the clerk of a district, county, or statutory county court from a defendant in a
       criminal proceeding based on the law in effect on the date the offense was
       committed, the amount of a court cost imposed on the defendant in a criminal
       proceeding must be the amount established under the law in effect on the date the
       defendant is convicted of the offense.


Tex. Gov’t Code § 51.608. In arguing that this statutory provision states that the trial court must

assess only court costs that were in existence at the time of the underlying offense, appellant

misconstrues the law. The provision states that the court costs assessed must be those established

by law as of the date a defendant is convicted of the offense. See id. The record shows that appellant



                                                  6
was convicted of the offense of sexual assault of a child on March 13, 2015. All of the challenged

court costs are supported by laws in effect on the date of appellant’s conviction. See Tex. Code

Crim. Proc. art. 102.0045 (requiring fee to reimburse counties for cost of juror services and effective

in 2005); id. art. 102.0169 (mandating court technology fee and effective in 2009); Tex. Local Gov’t

Code § 133.105(a) (mandating fee for support of judiciary and effective in 2005); id. § 133.107(a)

(requiring fee to fund indigent defense representation and effective in 2007). Because all of the

challenged costs were supported by statutory authority that was in existence at the time of appellant’s

conviction, the trial court properly assessed the costs.


       C.      Statutory Authority for State Electronic Filing Fee

               Appellant further argues that the trial court erred in assessing the state electronic

filing fee because there is no statutory basis for the fee. However, section 51.851(d) of the Texas

Government Code provides authority for the fee, as it requires that a defendant pay an electronic

filing fee upon conviction of a criminal offense. See Tex. Gov’t Code § 51.851(d). Accordingly,

the trial court properly assessed the fee.


       D.      Conclusion Regarding Court Costs

               Having concluded that all of the court costs challenged by appellant were properly

assessed, we overrule the court-cost issues raised by appellant, and we deny appellant’s motion for

correction of costs.




                                                  7
Error in Judgment

               Appellate counsel argues that the judgment adjudicating guilt erroneously indicates

that appellant entered into a plea agreement with the State. Specifically, under the heading titled

“Terms of Plea Bargain” in the judgment, the judgment states “See Agreement Regarding

Adjudication and Sentence.” The referenced “Agreement Regarding Adjudication and Sentence”

is a form document for a plea agreement but the word “OPEN” is written into the document in a

space provided for writing in the terms of the agreement. The record shows that appellant did not

enter into a plea agreement with the State but rather entered an open plea. Because we have the

authority to correct a trial court’s judgment when we have the necessary information to do so, and

because the record shows that appellant did not enter into a plea agreement, we delete the portion

of the judgment stating “See Agreement Regarding Adjudication and Sentence,” and we substitute

“N/A” in its place. See Tex. R. App. P. 43.2(b); Bigley, 865 S.W.2d at 27–28; Figueroa, 250

S.W.3d at 518. As modified, the judgment adjudicating guilt is affirmed.


                                           Conclusion

               Based on the foregoing, we grant appellate counsel’s motion to withdraw, deny

appellant’s motion for correction of costs, and affirm the judgment adjudicating guilt as modified.




                                                8
                                                _______________________________
                                                Cindy Olson Bourland, Justice

Before Justices Puryear, Goodwin and Bourland

Modified and, as Modified, Affirmed

Filed: January 22, 2016

Do Not Publish




                                            9
