Concurring opinion issued December 15, 2016




                                        In The

                                Court of Appeals
                                       For The

                            First District of Texas
                              ————————————
                                NO. 01-15-00592-CR
                             ———————————
                       EDUARDO MARTINEZ, Appellant
                                           V.
                        THE STATE OF TEXAS, Appellee


                     On Appeal from the 183rd District Court
                             Harris County, Texas
                         Trial Court Case No. 1031995


                             CONCURRING OPINION

      I concur in the judgment and join the court’s opinion, which is premised

correctly on the factual basis for assessing the court costs as revealed in the appellate

record—reasoning suggested by the State only as an alternative argument relegated

to a footnote. I write separately to squarely address the State’s main argument: that
our appellate review “of court costs on appeal to determine if there is a basis for the

cost”1 can be satisfied by simply confirming that “the payment of court costs is

mandated by the legislature.”2 I disagree with this interpretation of the scope of

review required by Johnson v. State, 423 S.W.3d 385 (Tex. Crim. App. 2014).

      Johnson stands for the proposition that we don’t review an assessment of court

costs by applying the same due-process standard described in Jackson v. Virginia3

and Brooks v. State4 to evaluate whether the trial record contains sufficient

evidentiary proof of a defendant’s guilt before a criminal conviction will be

sustained.5 But that doesn’t mean the assessment of costs requires no factual basis

whatsoever in the procedural history of the case.

      Nothing in Johnson suggests, as the State argues in this appeal, that the mere

statutory authorization to charge a particular type of fee is itself a sufficient “basis”

to affirm the assessment of court costs, without reference to the facts. To the

contrary, Johnson expressly held: “a specific amount of court costs need not be



1
      Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014).
2
      State’s Appellate Brief at 9.
3
      443 U.S. 307, 99 S. Ct. 2781 (1979).
4
      323 S.W.3d 893 (Tex. Crim. App. 2010).
5
      See Johnson, 423 S.W.3d at 389–90.


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supported by a bill of costs in the appellate record for a reviewing court to conclude

that the assessed court costs are supported by facts in the record.”6 These “facts in

the record” could take many forms which might not satisfy the rules of evidence if

they were offered at trial as formal proof of the underlying facts justifying the fee.7

      In sum, statutory authority to charge a fee is not a fully adequate “basis” upon

which the State can rely in response to a challenge to an assessment of court costs.

To the extent any other courts may have suggested that is the rule,8 we should not

follow them.



                                               Michael Massengale
                                               Justice

Panel consists of Justices Massengale, Brown, and Huddle.

Justice Massengale, concurring.

Publish. TEX. R. APP. P. 47.2(b).


6
      423 S.W.3d at 395 (emphasis supplied).
7
      See, e.g., Cardenas v. State, 403 S.W.3d 377, 388–89 (Tex. App.—Houston
      [1st Dist.] 2013) (observing that even without the “roadmap” provided by a
      bill of costs, “the clerk’s record generated in the trial court through the entry
      of judgment” demonstrated “facts and circumstances sufficient to justify” the
      full measure of costs assessed in the case), aff’d, 423 S.W.3d 396 (Tex. Crim.
      App. 2014).
8
      See, e.g., Hunter v. State, No. 14-15-00575-CR, 2016 WL 675327, at *2 (Tex.
      App.—Houston [14th Dist.] Feb. 18, 2016, no pet.) (per curiam) (“Because
      the sheriff’s fee has a basis in law, the fee will remain in the judgment.”).

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