Opinion filed October 17, 2013




                                        In The


        Eleventh Court of Appeals
                                      __________

                                  No. 11-12-00292-CR
                                      __________

                       DONTAVIS GOWAN, Appellant
                                           V.
                     THE STATE OF TEXAS, Appellee


                      On Appeal from the 54th District Court
                                 McLennan County, Texas
                       Trial Court Cause No. 2011-1805-C2


                      MEMORAND UM OPI NI ON
      Dontavis Gowan originally pleaded guilty to the offense of possession of
cocaine, and the trial court deferred the adjudication of Gowan’s guilt and placed
him on community supervision for four years pursuant to the terms of a plea
bargain. The State subsequently filed a motion to adjudicate guilt. Upon Gowan’s
plea of true to the motion to adjudicate, the trial court adjudicated his guilt and
assessed his punishment at confinement in a state jail facility for twenty-four
months and a fine of $1,000. The judgment nunc pro tunc reflects that the trial
court also assessed court costs of $966 and “Restitution” of $140. We affirm.
                                                  Issues
        Gowan presents nine issues for review. In the first three issues, Gowan
complains of the trial court’s assessment of “restitution in the amount of $140 to
the DPS Lab” because it was not orally pronounced as part of the sentence, was not
authorized, and was not supported by sufficient evidence. In his fourth issue,
Gowan complains of the trial court’s assessment of an “intoxication/drug fee” of
$60 and a “time payment fee” of $25 as court costs because these fees were not
compensatory and were not included in the sentence orally pronounced by the trial
court in open court. 1 In his fifth issue, Gowan complains that the bill of costs was
not signed. In his sixth issue, Gowan challenges the assessment of attorney’s fees
associated with the adjudication of his guilt. In the seventh and eighth issues, he
challenges the assessment of attorney’s fees associated with the initial plea and
deferred adjudication.           In his final issue, Gowan complains that the “Time
Credited” as shown in the judgment is inaccurate.
                               Complaints Procedurally Defaulted
        In light of a recent opinion by the Court of Criminal Appeals, we hold that
Gowan has forfeited his right to complain on appeal of the matters raised in his
first, second, third, fourth, seventh, and eighth issues. See Wiley v. State, No. PD-
1728-12, 2013 WL 5337093 (Tex. Crim. App. Sept. 25, 2013).                                   In Wiley, a
unanimous court held that the defendant, by procedural default, forfeited his right


        1
          We note that the State originally filed a letter brief conceding that Gowan’s points regarding fees
and restitution “are well taken” and stating that “the proper remedy is to delete the DPS lab fee, the time
payment fee, and the intoxication/drug fee.” The State subsequently recanted its concessions and now
urges that the $140 DPS charge “for drug testing constitutes reparations, not restitution”; that the $60
intoxication/drug fee and the $25 time payment fee were mandatory under the law; and that the attorney’s
fees assessed as costs of court at the time Gowan was placed on community supervision may not be raised
in this appeal.

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to complain of attorney’s fees that were included as court costs in both the original
order placing the defendant on community supervision and in the judgment
revoking his community supervision because he did not raise his complaint in a
direct appeal from the original order. Id.
      The record in this case shows that the $140 “Restitution” to the DPS lab was
specifically included in the order deferring adjudication, as were court costs in the
amount of $911. The court costs of $911 included charges of $400 for court-
appointed attorney’s fees, $60 for the intoxication/drug fee, and $25 for the time
payment fee. Following the court’s ruling in Wiley, we hold that, by failing to
appeal from the trial court’s order deferring the adjudication of guilt, Gowan has
forfeited his complaints regarding the costs, fees, and restitution that were included
in that order; Gowan cannot raise these complaints in an appeal from the
subsequent judgment adjudicating his guilt. Gowan’s first, second, third, fourth,
seventh, and eighth issues are overruled.
                               Complaints Now Moot
      In his fifth issue, Gowan asserts, alternatively, that the trial court erred in
assessing any court costs at all because the bill of costs was not signed. The
supplemental clerk’s record contains a bill of costs signed by the McLennan
County District Clerk. Gowan’s fifth issue is overruled.
      In his sixth issue, Gowan complains of the trial court’s inclusion of his
court-appointed attorney’s fees as court costs to be paid by Gowan, an indigent
defendant. This issue relates to the attorney’s fees incurred for the revocation and
adjudication only. See Mayer v. State, 309 S.W.3d 552, 555 (Tex. Crim. App.
2010). Gowan’s complaint in this issue has been rendered moot by the judgment
nunc pro tunc that was entered after Gowan filed his brief. The original judgment
of adjudication reflected court costs of $1,466, including attorney’s fees of $900;
the judgment nunc pro tunc reflects court costs of only $966. Upon the entry of the
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judgment nunc pro tunc, the district clerk amended her bill of costs to reflect a
credit of $500 and to reflect that the attorney’s fees previously assessed for the
revocation and adjudication proceeding were no longer due. 2 Because the sixth
issue relates to an error that has been corrected by the trial court’s judgment nunc
pro tunc, Gowan’s complaint is moot. The sixth issue is, therefore, overruled.
                                         Time Credited
       In his final issue, Gowan complains that he was not given credit for time
spent in jail prior to the revocation of his guilt. We disagree. The trial court gave
Gowan the appropriate credit for his time served. The first page of the judgment
and the judgment nunc pro tunc set out the following dates that Gowan spent in jail
as “Time Credited:” from May 15, 2011, to May 16, 2011; September 1, 2011;
from November 28, 2011, to January 18, 2012; and from August 8, 2012, to
August 30, 2012 (the date of adjudication). Furthermore, on the second page of the
judgments, the trial court ordered that Gowan be “given credit noted above on this
sentence for the time spent incarcerated.” Gowan’s ninth issue is overruled.
                                      This Court’s Ruling
       We affirm the judgment of the trial court.




October 17, 2013                                                     TERRY McCALL
Do not publish. See TEX. R. APP. P. 47.2(b).                         JUSTICE
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




       2
        The remaining $400 assessment for attorney’s fees stemmed from the initial plea and deferral
and was addressed in the seventh and eighth issues.

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