                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-12-00163-CR



           ERIC DEWAYNE HILL, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 114th District Court
                 Smith County, Texas
             Trial Court No. 114-2229-09




       Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                       MEMORANDUM OPINION
         Eric Dewayne Hill has been sentenced to twelve years’ imprisonment after having been

adjudicated guilty of burglary of a habitation 1 in Smith County. 2 See TEX. PENAL CODE ANN.

§ 30.02 (West 2011). Hill’s appeal is limited to two issues concerning the $795.00 in court costs

assessed against him: whether it was error to assess the court costs and order them deducted

from Hill’s inmate trust account before a bill of costs had been prepared and whether where was

legally sufficient evidence to support those court costs. Because (1) supplementing the record

with a bill of costs is permissible, (2) no error has been preserved in ordering costs before

preparation of a bill of costs, and (3) only $195.00 in costs is supported by the evidence, we

modify the judgment and affirm the judgment as so modified. See TEX. R. APP. P. 43.2(b).

(1)      Supplementing the Record with a Bill of Costs Is Permissible

         Before we address Hill’s complaints, we need to clarify a procedural issue in this case.

On January 16, 2013, the State supplemented the record with a bill of costs indicating court costs

of $495.00. 3       Under the Texas Rules of Appellate Procedure, “any party” may request

supplementation, and court permission is not required. See TEX. R. APP. P. 34.5(c). This bill of


1
 In prior proceedings, Hill had pled guilty and the trial court placed him on four years’ deferred adjudication. On
July 26, 2012, the State filed a third application to proceed to final adjudication alleging that Hill fled, in a vehicle,
from a police officer. On August 23, 2012, the trial court found Hill guilty and sentenced him. In the judgment, the
trial court ordered Hill to pay $795.00 in court costs.
2
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
3
 Hill objected to the supplementation of the record and requested time to file an amended brief. We granted Hill’s
motion to extend and permitted Hill to file a supplemental brief. The State, with this Court’s permission, has also
filed a supplemental brief in response to Hill’s supplemental brief.

                                                            2
costs was dated January 11, 2013—after the appellate record had been filed. Hill filed an

objection to the supplementation, arguing that we cannot consider a document created after the

judgment has been rendered.

           This Court has modified judgments in at least two cases because court costs are not

payable until a bill of costs is produced or “ready to be produced,” 4 and no bill of costs had been

prepared. See Tafolla v. State, No. 06-12-00122-CR, 2012 Tex. App. LEXIS 10555 (Tex.

App.—Texarkana Dec. 20, 2012, no pet.) (mem. op., not designated for publication); Cuba v.

State, No. 06-12-00106-CR, 2012 Tex. App. LEXIS 10260 (Tex. App.—Texarkana Dec. 11,

2012, no pet.) (mem. op., not designated for publication). 5 Supplementation of the record with

something that did not exist at trial would normally be absolutely prohibited.                                 “[T]he

supplementation rules cannot be used to create new evidence.” Whitehead v. State, 130 S.W.3d

866 (Tex. Crim. App. 2004) (appellate review of record itself generally limited to evidence

before trial court at time of trial court’s ruling); see Mayer v. State, 309 S.W.3d 552, 557 (Tex.

Crim. App. 2010) (rejecting State’s request for remand to supplement record with evidence

supporting attorney’s fees awarded as court costs); Lamb v. State, 931 S.W.2d 611, 613 (Tex.

App.—Amarillo 1996, pet. ref’d); see also TEX. R. APP. P. 34.5(c).



4
    The Texas Code of Criminal Procedure provides:

           A cost is not payable by the person charged with the cost until a written bill is produced or is
           ready to be produced, containing the items of cost, signed by the officer who charged the cost or
           the officer who is entitled to receive payment for the cost.

TEX. CODE CRIM. PROC. ANN. art. 103.001 (West 2006).
5
 Although unpublished cases have no precedential value, we may take guidance from them “as an aid in developing
reasoning that may be employed.” Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d).
                                                          3
         We conclude, however, that supplementation with a newly created bill of costs is not

prohibited by this general rule. Unlike actions taken by the trial court after an appellate record

has been filed, 6 we are not aware of anything limiting the district clerk’s authority to prepare the

bill of costs after an appellate record has been filed. Court costs are not part of the sentence and

need not be orally pronounced or incorporated by reference into the judgment. Armstrong v.

State, 340 S.W.3d 759, 766–67 (Tex. Crim. App. 2011). Further, a bill of costs certified by the

district clerk is not evidence, 7 but rather a governmental record. While the preparation of a bill

of costs has significance, 8 it is merely a documentation of what occurred during the trial. 9 The

costs listed in the bill of costs are not newly created; only the compilation of those costs is new.

The bill of costs is an “omitted” item because it is only a data compilation from previously

existing documents. See TEX. R. APP. P. 34.5(c) (“If a relevant item has been omitted . . . .”).




6
 The trial court lacks jurisdiction once the appellate record is filed. See TEX. R. APP. P. 25.2(g) (“Once the record
has been filed in the appellate court, all further proceedings in the trial court—except as provided otherwise by law
or by these rules—will be suspended until the trial court receives the appellate-court mandate.”); Green v. State, 906
S.W.2d 937, 939 (Tex. Crim. App. 1995) (findings of fact and conclusions of law entered after appellate record filed
were void).
7
 Hill cites Johnson v. State, 389 S.W.3d 513 (Tex. App.—Houston [14th Dist.] 2012, no pet. h.), in support of his
argument. In Johnson, though, the “new evidence” excluded by the court was a computer printout of the costs—not
a bill of costs. We believe Johnson is distinguishable because the supplementation of a computer printout was more
akin to evidence than a certified bill of costs.
8
 TEX. CODE CRIM. PROC. ANN. art. 103.001 (court costs not payable until bill of costs produced or “ready to be
produced”).
9
 Unless relevant, a bill of costs is not normally required to be part of an appellate record. See Gonzales v. State,
No. 07-10-00383-CR, 2012 Tex. App. LEXIS 6905 (Tex. App.—Amarillo Aug. 17, 2012, pet. ref’d) (mem. op., not
designated for publication).

                                                          4
We conclude that the record can be supplemented with the bill of costs.10 We overrule Hill’s

objection to that supplementation.

(2)      No Error Has Been Preserved in Ordering Costs Before Preparation of a Bill of Costs

         Hill argues that the trial court erred in ordering Hill to pay court costs before a bill of

costs was prepared. The record contains no such objection to either the trial court’s written

judgment or its oral pronouncement that Hill would be required to pay court costs. “In contrast

to evidence-sufficiency challenges, for which no preservation of error is required, challenges to

the propriety of trial-court rulings must be preserved for appeal.” Moore v. State, 371 S.W.3d

221, 225 (Tex. Crim. App. 2012). Although Hill alleges violation of his due process rights, both

facial and as-applied constitutional challenges must be preserved in the trial court. See Karenev

v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009). Hill has failed to preserve this error for

appellate review.

(3)      Only $195.00 in Costs Is Supported by the Evidence

         Hill challenges the sufficiency11 of the evidence of the court costs and the attorney’s fees

awarded as court costs. As this issue concerns a criminal matter, it can be addressed in this

direct appeal. 12


10
 See Cardenas v. State, No. 01-11-01123-CR, 2013 Tex. App. LEXIS 2980 (Tex. App.—Houston [1st Dist.]
Mar. 21, 2013, no pet. h.) (rejecting due process challenge to supplementation of record with bill of costs).
11
  Texas law is clear that sufficiency of the evidence cannot be forfeited and need not be preserved for appellate
review. Mayer, 309 S.W.3d at 556 (“[S]ufficiency of evidence of [defendant’s] financial resources and ability to
pay were likewise not waived by his failure to raise such a complaint at trial.”); Moff v. State, 131 S.W.3d 485, 489
(Tex. Crim. App. 2004); Flanary v. State, 316 S.W.2d 897, 898 (Tex. Crim. App. 1958) (op. on reh’g).
12
 An award of costs and/or attorney’s fees in a judgment of conviction can be addressed in a criminal appeal.
Armstrong, 340 S.W.3d at 767. On the other hand, the “means of collection” of court costs or attorney’s fees (often
accomplished by garnishment of an inmate’s trust account) is a civil matter. Id. at 766; see Harrell v. State, 286
                                                         5
        The State concedes there is no support in the record for the $300.00 difference between

the trial court’s order of $795.00 and the $495.00 bill of costs. We agree that the trial court

cannot award costs not supported by a bill of costs.

        The State also concedes the attorney’s fees must be reversed. We agree. The Texas

Code of Criminal Procedure requires a trial court to determine whether “a defendant has

financial resources that enable him to offset in part or in whole” the cost of his appointed

counsel. 13 TEX. CODE CRIM. PROC. ANN. art 26.05(g) (West Supp. 2012). The Texas Court of

Criminal Appeals has held “the defendant’s financial resources and ability to pay are explicit

critical elements in the trial court’s determination of the propriety of ordering reimbursement of

costs and fees.” Mayer, 309 S.W.3d at 556 (reversing attorney’s fees ordered as costs). Further,

the record must reflect some factual basis to support the trial court’s determination. Barrera v.

State, 291 S.W.3d 515, 518 (Tex. App.—Amarillo 2009, no pet.); see Mayer, 309 S.W.3d at 557.

Because the record lacks any evidence Hill had the ability to pay the attorney’s fees, there is

insufficient evidence to support the attorney’s fees award.

        Although the State concedes $600.00 of the $795.00 in costs should be deleted, the State

argues there is sufficient evidence to support an award of $195.00. As noted above, the record

has been supplemented with a bill of costs which supports, after deletion of the attorney’s fees,



S.W.3d 315, 318 (Tex. 2009) (matter was civil because “the criminal case is over” and concluding post-deprivation
due process sufficient for withdrawal from inmate trust account).
13
  This opinion should not be interpreted as suggesting that a court cannot condition community supervision on
payment of attorney’s fees without evidence of an ability to pay. The Texas Code of Criminal Procedure expressly
allows such conditions. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 11(a)(11) (West Supp. 2012); cf. Bearden v.
Georgia, 461 U.S. 660, 672 (1983) (recognizing imprisonment due to poverty can be equal protection violation and
requiring trial court to inquire into ability to pay).
                                                       6
court costs of $195.00. Hill argues the entire court costs should be deleted due to the lack of any

evidence that Hill had an ability to pay the court costs.

       On July 27, 2012, Hill filed an affidavit of indigency certifying that he has no income, no

assets, and two children. On that day, the trial court found Hill indigent and appointed him

counsel. We have not been directed to where in the record there was evidence of a material

change in his financial circumstances. After the trial court pronounced sentence and ordered

payment of court costs, the following exchange occurred between the trial court and Hill:

              THE COURT: . . . Mr. Hill, the Court appointed Mr. Thompson because
       you represented to the Court that you were indigent. Have your circumstances
       improved any so that you would not be indigent?

               [DEFENDANT]: No, ma’am, they haven’t.

              THE COURT: Are you asking the Court to consider appointing a lawyer
       for you for the purposes of your appeal?

               [DEFENDANT]: Yes, ma’am.

               THE COURT: The Court appoints Mr. Huggler to represent you.

       Once a defendant is found to be indigent, he or she is presumed to remain indigent unless

there is evidence of a material change in his or her financial circumstances. TEX. CODE CRIM.

PROC. ANN. art. 26.04(p) (West Supp. 2012); see Mayer, 309 S.W.3d at 557; Roberts v. State,

327 S.W.3d 880, 884 (Tex. App.—Beaumont 2010, no pet.); cf. McFatridge v. State, 309 S.W.3d

1, 6 (Tex. Crim. App. 2010) (explaining two-step process for indigency determinations for

purposes of free record for appeal and appointment of appellate counsel). The record does not

demonstrate that the trial court found a material change in Hill’s financial circumstances or

considered Hill’s ability to offset the cost of legal services provided. See TEX. CODE CRIM.
                                                  7
PROC. ANN. arts. 26.04(p), 26.05(g). Rather, after sentence was orally pronounced, the trial court

appointed Hill appellate counsel. Thus, we must address the difficult issue of whether an

indigent party can be ordered to pay court costs.

         The Due Process Clause of the United States Constitution prohibits a state from denying

access to its courts solely because of an inability to pay. See Boddie v. Connecticut, 401 U.S.

371, 374 (1971); Griffin v. Illinois, 351 U.S. 12, 18 (1956). This does not mean, though, that

court costs cannot be recovered. The Constitution prohibits only required payment in advance. 14

Boddie, 401 U.S. at 374; Griffin, 351 U.S. at 18.

         We have not been directed to binding precedent from either the Texas Court of Criminal

Appeals or the Tyler Court of Appeals on this issue. The Amarillo Court of Appeals has held a

defendant’s ability to pay is relevant only as to “court-appointed attorney’s fees,” not concerning

legislatively mandated court costs. Owen v. State, 352 S.W.3d 542, 546 (Tex. App.—Amarillo

2011, no pet.). Other Texas courts of appeals have agreed with the Amarillo court. 15 The Tyler

Court of Appeals has held, in an unpublished opinion, that, unless the trial court determines that

the defendant was able to pay, the courts may not require the defendant to pay attorneys’ fees.

See Proctor v. State, No. 12-11-00335-CR, 2012 Tex. App. LEXIS 7452 (Tex. App.—Tyler

Aug. 31, 2012, no pet.) (mem. op., not designated for publication) (deleting all court costs,

14
  The United States Supreme Court has observed that attempting to recover fees from indigents may not be cost-
effective, but reasoned, “misguided laws may nonetheless be constitutional.” James v. Strange, 407 U.S. 128, 133
(1972) (concluding Kansas statute permitting recovery of attorney’s fees was violation of equal protection and
noting in 1971 Kansas spent $400,000.00 to collect $17,000.00 in fees).
15
  See, e.g, Bell v. State, No. 09-11-00462-CR, 2012 Tex. App. LEXIS 646 (Tex. App.—Beaumont Jan. 25, 2012, no
pet.) (mem. op., not designated for publication) (subtracting attorney’s fees but retaining administrative costs and
fees); Ludlow v. State, No. 03-11-00212-CR, 2012 Tex. App. LEXIS 289 (Tex. App.—Austin Jan. 11, 2012, no pet.)
(mem. op., not designated for publication) (subtracting attorney’s fees but retaining administrative costs and fees).
                                                         8
$300.00 because they were attorneys’ fees, balance of $270.00 ostensibly because bill of costs

did not contain that amount at all). Hill cites Proctor. Although we are obligated to follow the

Tyler Court of Appeals’ published precedents, Proctor is an unpublished opinion, is not binding

precedent, and is merely persuasive authority. Also, Proctor does not stand for the proposition

that costs other than attorneys’ fees cannot be assessed without a finding of ability to pay. Id. at

*6. Proctor did not conclude that court costs, once attorney’s fees were eliminated, required

evidence of an ability to pay.

       In Armstong, the Amarillo Court of Appeals concluded, “the clerk’s certified bill of costs

imposes an obligation on [Armstrong] to pay the costs, again other than attorney’s fees, whether

or not that bill is incorporated by reference into the judgment.” Armstrong v. State, 320 S.W.3d

479, 481 (Tex. App.—Amarillo 2010), rev’d in part by 340 S.W.3d 759 (Tex. Crim. App.

2011). The Texas Court of Criminal Appeals, though, reversed only part of the Amarillo court’s

opinion. Armstrong, 340 S.W.3d at 763. The high court reversed the Amarillo court on the

attorneys’ fees issue, but left in place the court’s decision relating to court costs. Id. While the

court did not specifically approve of the portion of the opinion concerning court costs, the failure

to reverse suggests the court might agree with that portion of the opinion.

       In Ex parte Sadler, No. WR-75,812-02, 2012 Tex. Crim. App. Unpub. LEXIS 1053 (Tex.

Crim. App. Oct. 10, 2012) (not designated for publication), the inmate argued, because there was

“no evidence to show a material change in his financial circumstances,” court costs of $236.00

and attorneys’ fees of $400.00 should be deleted. Although concluding that sufficient facts were




                                                 9
alleged concerning attorney’s fees, the high court held that Sadler’s complaints concerning

courts costs were “without merit.” Id.

            The more persuasive authority indicates that a trial court can order an indigent defendant

to pay court costs, provided payment is not demanded before the trial court proceedings have

concluded. Although the trial court erred in the amount of the court costs, 16 the trial court did

not err in ordering payment of the $195.00 supported by the bill of costs. We agree with the

State that the trial court’s judgment should be modified to order that Hill pay only $195.00 in

court costs. 17

            The State argues we should reject Hill’s request to modify the withdrawal order.

Although the State does not cite any authority, the State argues that a withdrawal order is not an

appealable order and requests that we abate the case to the trial court to modify the withdrawal

order. In Cuba v. State, No. 06-12-00106-CR, 2012 Tex. App. LEXIS 10260, at *2 n.2 (Tex.

App.—Texarkana Dec. 11, 2012, no pet.) (mem. op., not designated for publication), we refused

to modify a withdrawal order, citing Harrell v. State, 286 S.W.3d 315, 316 (Tex. 2009);

Goodspeed v. State, 352 S.W.3d 714 (Tex. App.—Texarkana 2011, pet. denied). Both Harrell

and Goodspeed were appeals of the means of collection of court costs occurring after the

criminal conviction had become final. Harrell, 286 S.W.3d at 316; Goodspeed, 352 S.W.3d at

714. This case is distinguishable from Harrell and Goodspeed in that the modification is being

requested in a direct appeal of a criminal conviction. The Texas Court of Criminal Appeals, in

16
 Because they are compensatory rather than punitive in nature, court costs and attorneys’ fees do not need to be
orally pronounced or incorporated by reference into the judgment. Armstrong, 340 S.W.3d at 766–67.
17
     The bill of costs indicates that Hill has already paid $195.00.
                                                              10
Armstrong, did not resolve whether a withdrawal order can be modified in a criminal appeal.

Armstrong, 340 S.W.3d at 763 & n.7. Several Texas cases, decided since the Texas Court of

Criminal Appeals decision in Armstrong, have modified withdrawal orders in direct appeals

addressing the sufficiency of the evidence. See Perez v. State, No. 07-12-0066-CR, 2012 Tex.

App. LEXIS 5635 (Tex. App.—Amarillo July 12, 2012, no pet.) (mem. op., not designated for

publication); Hindman v. State, No. 07-10-00243-CR, 2012 Tex. App. LEXIS 5017 (Tex.

App.—Amarillo June 22, 2012, pet. ref’d) (mem. op., not designated for publication); Salgado v.

State, No. 11-10-00185-CR, 2012 Tex. App. LEXIS 5006 (Tex. App.—Eastland June 21, 2012,

no pet.) (mem. op., not designated for publication).

       Once an appellate court has jurisdiction over a criminal case, it has jurisdiction over the

entire criminal case. See Pfeiffer v. State, 363 S.W.3d 594, 599 (Tex. Crim. App. 2012).

       In sum, a proper notice of appeal in a criminal case confers jurisdiction on a court
       of appeals, and that court then has the authority to address any issue or claim
       pertinent to the judgment or order appealed from unless otherwise restricted by
       statute.

Id. When a case “is essentially criminal, the presence of civil law issues will not remove the

matter from our jurisdiction.” Armstrong, 340 S.W.3d at 765 (quoting State ex rel. Holmes v.

Honorable Court of Appeals for Third District, 885 S.W.2d 389, 394 (Tex. Crim. App. 1994)

(orig. proceeding). The general principles of Pfeiffer and Holmes suggest that, because we are

faced with a direct appeal of a criminal conviction, we also have the authority to modify a

withdrawal order in such a case.

       This direct appeal is just such a case. The need to modify the withdrawal order stems

directly from our resolution of the evidentiary sufficiency challenge to the court costs in a direct
                                                11
appeal and is vital to ensure the implementation of our conclusions. Hill’s notice of appeal gave

us jurisdiction over the entire case; and, although post-conviction collection efforts are civil

matters, we conclude that we have jurisdiction to modify the withdrawal order.

       We modify the judgment and the withdrawal order to provide that Hill shall pay only

$195.00 in court costs. We affirm the judgment and withdrawal order, as modified.



                                                    Josh R. Morriss, III
                                                    Chief Justice

Date Submitted:       April 10, 2013
Date Decided:         April 24, 2013

Do Not Publish




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