
                          NOS. 07-09-0301-CR, 07-09-0302-CR, 07-09-0303-CR,
                             07-09-0304-CR, 07-09-0305-CR, 07-09-0306-CR

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL D

                                            AUGUST 20, 2010








                                   VIENGKHONE SIKALASINH, APPELLANT


                                                  v.


                                     THE STATE OF TEXAS, APPELLEE





                            FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                   NOS. 58,210-A, 58,211-A, 58,212-A, 58,213-A, 58,216-A, 58,217-A;
                                      HONORABLE HAL MINER, JUDGE





Before QUINN, C.J.. and CAMPBELL and PIRTLE, JJ.

                                               OPINION


      Appellant, Viengkhone Sikalasinh,[1] was convicted by a jury  of  three  counts  of  aggravated
assault with a deadly weapon, one count of aggravated assault with a  deadly  weapon--family  member,
and two counts of aggravated robbery,  each  enhanced  by  a  prior  felony  conviction.[2]   He  was
sentenced by a jury to six concurrent sentences of twenty, twenty, ten, sixty, fifteen,  and  fifteen
years confinement, respectively.  Appellant asserts three issues on appeal:  (1)  whether  the  trial
court erred by requiring him to pay court-appointed attorney fees as a cost; (2)  whether  there  was
legally sufficient evidence that he was able to pay court-appointed attorney fees as a cost; and  (3)
whether he should be required to pay transportation, meal and  lodging  expenses  of  a  non-resident
witness who was neither an expert witness nor a peace officer.  We modify the trial court's  judgment
in Cause No. 58,210-A to clarify that payment of $16,510.26  in  court-appointed  attorney  fees  and
$537.05 in witness fees is not a part of the court costs ordered in the case and affirm the  judgment
as modified.  The judgments in Cause Nos. 58,211-A, 58,212-A, 58,213-A, 58,216-A,  and  58,217-A  are
affirmed.

                                              Background

      On October 1, 2008, Appellant  was  indicted  for  aggravated  assault  with  a  deadly  weapon
enhanced in three criminal actions;[3]  aggravated assault with a deadly weapon--family member  in  a
single criminal action;[4] and aggravated robbery in two criminal actions.[5]


      During the course of the pretrial proceedings,  Appellant  filed  three  affidavits  requesting
court-appointed counsel.  His financial information showed he was too poor  to  employ  counsel,  and
the trial court granted his requests based upon financial need.[6]

      The State's six criminal actions against Appellant were consolidated on August  10,  2009,  and
tried before a jury over the next four days.  During its case-in-chief, the State called the  manager
of the apartment complex where Appellant's crime spree had occurred.  At  the  time  of  trial,  this
particular witness had moved to McLennan County, Texas.  Thus, the State subpoenaed her to  trial  as
an out-of-county or non-resident witness.

      Appellant was convicted of all charges and sentenced in accordance  with  the  jury's  verdict.
Subsequently, the trial court approved a Witness Fee  Claim  for  the  non-resident  witness's  trial
attendance totaling $537.05 for lodging, meal, and travel  expenses  incurred.[7]   The  trial  court
also approved an Attorney Fee Voucher submitted by Appellant's court-appointed attorney for  services
rendered from July 10, 2009 until the end of trial totaling $16,510.26.

      On September 1, 2009, the trial court signed Judgments of Conviction by Jury  in  each  of  the
six cases consolidated for trial.  In each case, the summary portion of the judgment reflects  "Court
Costs: see attached," while the narrative portion of the  judgment  orders  Appellant  to  pay  court
costs "as indicated above."  In the Clerk's Record from Cause No. 07-09-0301-CR  (trial  court  Cause
No. 58,210-A), the first page following the judgment  is  a  certified  bill  of  costs,  also  dated
September 1, 2009, that reflects "Attorney  Fees  (Court  Appointed)  $16,510.26"  and  "Witness  Fee
$537.05."  In the remaining five criminal actions, Cause Nos.  07-09-0302-CR,  07-09-0303-CR,  07-09-
0304-CR, 07-09-0305-CR and 07-09-0306-CR  (trial  court  Cause  Nos.  58,211-A,  58,212-A,  58,213-A,
58,216-A, and 58,217-A, respectively), the first page following the judgment in  the  Clerk's  Record
is a certified bill of costs reflecting no attorney's fees and no witness fees.

      Issues 1 & 2 -- Court-Appointed Attorney Fees

      Under article 26.05 of the Texas Code of Criminal Procedure, the trial court has  authority  to
order reimbursement of appointed  attorney  fees  if  the  court  determines  that  a  defendant  has
financial resources that enable him to offset, in part or  in  whole,  the  cost  of  legal  services
provided.  See Tex. Code Crim. Proc. Ann. art. 26.05(g) (Vernon Supp. 2009).  The record  before  us,
however, does not contain a determination or finding by  the  trial  court  that  Appellant  had  any
financial resources or was "able to pay" any appointed attorney fees.[8]  In fact, subsequent to  the
judgment, the trial court appointed an attorney to handle Appellant's appeal due to his indigency.

      Prior to filing his appeal, Appellant did not have the benefit of the  recent  opinion  by  the
Court of Criminal Appeals  holding  that,  without  record  evidence  to  demonstrate  a  defendant's
financial resources to offset the  costs  of  legal  services,  a  trial  court  errs  if  it  orders
reimbursement of court-appointed attorney fees.   Mayer  v.  State,  309  S.W.3d  552  (Tex.Crim.App.
2010).  In light of this  recent  ruling,  the  State  candidly  concedes  that  the  court-appointed
attorney fees here, $16,510.26, should not have been included in the Judgment as costs to be paid  by
Appellant because there is no record evidence indicating Appellant  is  "able  to  pay."   We  agree.
Accordingly, Appellant's issues one and two are sustained as to Cause No. 07-09-0301-CR (trial  court
Cause No. 58,210-A), but are overruled as to the remaining five actions.

      Issue 3 -- Witness Fees

      Appellant also asserts he is not liable for the non-resident witness fees because there  is  no
authority for him to be ordered to pay, as costs of court, witness  fees  paid  pursuant  to  article
35.27[9] of the Texas Code of Criminal Procedure.[10]  The State contends  that  article  102.002  of
the Texas Code of Criminal Procedure authorizes the trial court to assess witness fees paid  pursuant
to article 35.27 as costs of court.   We disagree with the State.

      Every person subpoenaed for the purpose of  giving  testimony  in  a  criminal  proceeding  who
resides outside the county in which the prosecution is pending is entitled to be  reimbursed  by  the
state for reasonable and necessary transportation,  meal,  and  lodging  expenses  incurred  by  that
witness by reason of his or her attendance as a witness.  See art. 35.27, §  1(a).   Where  a  county
has paid those expenses, the county is entitled to reimbursement by the state as an assignee  of  the
witness.  See art. 35.27 § 7.  Here, pursuant to article 35.27, § 7, Potter County was paid  the  sum
of $537.05 as compensation for the expenses incurred in connection with the attendance  of  the  non-
resident witness in Appellant's case.  At issue here is whether the  trial  court  properly  assessed
the amount of that reimbursement against Appellant as costs of court.

      Article 35.27 provides a mechanism for the reimbursement  of  witness  expenses;  it  does  not
provide for the assessment of those expenses as costs of court.  Therefore,  the  State  relies  upon
article 102.002 as authority for assessment of "witness fees" as costs  of  court.   Because  article
102.002 does not expressly provide for the assessment of article 35.27 payments as  costs  of  court,
resolution of this issue involves the statutory construction of article 102.002.


      Standard of Review

      Issues governed by statutory construction are questions of  law  for  the  reviewing  court  to
decide.  City of Lubbock v. Adams, 149 S.W.3d 820, 826-27  (Tex.App.--Amarillo  2004,  pet.  denied).
Because proper statutory construction is a question of law,  a  trial  court  has  no  discretion  in
rendering an interpretation; Walker v. Packer, 827 S.W.2d 833, 840 (Tex.  1992),  and  no  particular
deference need be given to the trial court's findings by the  reviewing  court.   Bandera  v.  Indep.
Sch. Dist. v. Hamilton, 2 S.W.3d 367, 370 (Tex.App.--San Antonio 1999, pet. denied).  Thus,  when  we
construe a statute, we conduct a de novo review; Texas Dep't of Transp. v. Needham,  82  S.W.3d  314,
318 (Tex. 2002), with our primary objective being to ascertain and give effect to  the  Legislature's
intent.  Texas Dept. of Protective and Regulatory Services v. Mega Child Care, 145  S.W.3d  170,  176
(Tex. 2004).  We construe a statute as written and, if possible,  ascertain  the  legislative  intent
from the language used in the statute.  Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280  (Tex.
1994).  Thus, we begin with the plain and common meaning of the  statute's  words.   Texas  Dept.  of
Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004).

      Article 102.002 - Texas Code of Criminal Procedure


      Chapter 102 of the Texas Code of Criminal  Procedure,  entitled  "Costs  Paid  by  Defendants,"
provides a  general  framework  for  the  assessment  of  costs  by  a  trial  court  in  a  criminal
proceeding.[11]  Under Subchapter A, entitled "General Costs," we find article 102.002  dealing  with
"witness fees."

      Article 102.002 states as follows:
      (a) Repealed by Acts 1999, 76th Leg., ch. 580, Sec. 11(a), eff. Sept. 1, 1999.

      (b) The justices of the peace and municipal courts shall maintain a record of and the clerks of
      district and county courts and county courts at law shall keep a book and record in the book:

           (1) the number and style of each criminal action before the court;

           (2) the name of each witness subpoenaed,  attached,  or  recognized  to  testify  in  the
           action; and

           (3) whether the witness was a witness for the state or for the defendant.

      (c) Except as otherwise provided by this subsection, a defendant is liable  on  conviction  for
      the fees provided by this article for witnesses  in  the  defendant's  case.   If  a  defendant
      convicted of a misdemeanor does not  pay  the  defendant's  fines  and  costs,  the  county  or
      municipality, as appropriate, is liable for the fees provided by this article for witnesses  in
      the defendant's case.

      (d)  If a person is subpoenaed as a witness in a criminal case and fails to appear, the  person
      is liable for the costs of an attachment, unless he shows good cause to the court  why  he  did
      not appear.


(Emphasis added).


      Pursuant to article 102.002, in order for a defendant to be  liable  for  witness  fees,  three
events must occur: (1) the defendant must be convicted, (2) the witness must have  testified  in  the
"defendant's case," and (3) the fees must be "provided by this article," i.e., article 102.002.   See
art. 102.002(c).  Here, clearly Appellant was convicted; therefore, the two questions  remaining  are
(1) whether or not the witness testified in the “defendant's case,” and (2)  whether  the  fees  paid
were provided by article 102.002.

      As to the first question, Appellant contends that because the  non-resident  witness  testified
in the State's case-in-chief only, she  did  not  testify  in  the  "defendant's  case."   The  State
disagrees, contending that the article applies because the non-resident witness was a witness in  the
prosecution of the defendant's case.  Based upon our analysis of the second  question  pertaining  to
whether the fees were provided by article 102.002, we need not decide this question.

      As to the second question, Appellant contends the plain language of article  102.002  does  not
provide for the assessment of non-resident witness fees paid pursuant to article  35.27.   The  State
counters by contending that it does.

      Prior to its repeal in 1999, section (a) of article 102.002 provided:[12]

      A person subpoenaed, attached, or recognized as a witness, other than  a  witness  entitled  to
      receive compensation under Article 35.27 of this Code, is entitled to receive $1.50 per day  in
      attendance in court and six cents per mile traveling to or returning from the trial.  In  order
      to  receive  compensation  under  this  article,  the  witness,  or  another  credible   person
      representing the witness, must sign an  affidavit  stating  the  number  of  days  the  witness
      attended the court and the number of miles the witness traveled to and from the place of trial.
       The affidavit must be filed with the papers of the case.


 (Emphasis added.)


       Therefore, prior to the repeal of subparagraph (a), the plain language of article 102.002  did
not authorize a trial court to assess non-resident witness fees paid pursuant  to  article  35.27  as
costs  of  court.    Therefore,  the  question  becomes,  by  repealing  subparagraph  (a),  did  the
Legislature intend to remove that exclusion?

      Any analysis of the Legislature's intent in repealing subparagraph (a) is  complicated  by  the
fact that in repealing that subparagraph, the Sixty-Sixth  Legislature  also  repealed  subparagraphs
(b) and (c), and then without making reference to the repeal, amended subparagraphs (b)  and  (c)  to
include procedures governing the prosecution and administration of misdemeanor offenses in  municipal
courts.  See Act of May 22, 1999, 76th Leg., R.S., ch. 580, § 11(a), 1999 Tex. Gen Laws. 3119,  3123,
approved June 18, 1999, effective September 1, 1999 (repealing subparagraphs (a), (b) and  (c));  See
Act of May 30, 1999, 76th Leg., R.S., ch. 1545, § 63, 1999 Tex. Gen.  Laws  5314,  5329-30,  approved
June 19, 1999, effective September 1, 1999 (amending subparagraphs (b) and (c)).  If  the  intent  of
the Legislature had been the removal of the  article  35.27  exclusion,  it  seems  the  more  simple
solution would have been to repeal only that portion of subparagraph (a).  Accordingly,  an  analysis
of the bill's history does not support the State's contention that  witness  fees  paid  pursuant  to
article 35.27 are assessable as costs of court under article 102.002.

      Finally, although counterintuitive to the ultimate position taken, the  State  argues  that  no
substantive change in the law was intended by the Legislature when it repealed subparagraph (a).   We
see no reason to disagree with that analysis.  If the Legislature did  not  intend  to  substantively
change the provisions of subparagraph (c),  the  repeal  of  subparagraph  (a)  did  not  expand  the
assemblage of recoverable costs of court to include non-resident witness expenses  paid  pursuant  to
article 35.27.  Accordingly, we hold that article 102.002 does not  provide  for  the  assessment  of
witness fees paid pursuant  to  article  35.27  as  costs  of  court.   Appellant's  third  issue  is
sustained.

                                              Conclusion

      Having determined that the trial court erred by requiring Appellant to reimburse the State  for
the costs of his court-appointed attorney and the non-resident witness  article  35.27  reimbursement
expenses, we modify the judgment in Cause No. 58,210-A to clarify that the order to pay  court  costs
does not include a requirement that he pay $16,510.26 in attorney fees or $537.05  in  witness  fees,
and the judgment, as modified, is affirmed.  The trial court's  judgments  in  Cause  Nos.  58,211-A,
58,212-A, 58,213-A, 58,216-A, and 58,217-A are affirmed.



                                             Patrick A. Pirtle
                                                   Justice

Quinn, C.J. and Campbell, J., concurring.

Publish.
-----------------------
[1]We note that while the judgment in each case states Appellant's first name  as  "Viengkhone,"  the
indictments in Cause Nos. 58,210-A, 58,211-A, 58,212-A and 58,213-A state Appellant's first  name  as
"Vienkhone."  Where names are substantially the same in character and pronunciation, though  slightly
varied in spelling, under the doctrine of idem sonans, the variance is immaterial.  Jenke  v.  State,
487 S.W.2d 347 (Tex.Crim.App. 1972).

[2]See Tex. Penal Code Ann. § 22.02(a)(2) (Vernon Supp. 2009) and. § 29.03 (Vernon 2009).

[3]Cause Nos. 58,210-A; 58,211-A; 58,212-A.

[4]Cause No. 58,213-A.

[5]Cause No. 58,216-A; 58,217-A.

[6]At various stages of the pretrial proceedings,  two  of  Appellant's  appointed-counsel  moved  to
withdraw from representation. Both motions were granted and new counsel was appointed.

[7]The Witness Fee Claim form, which is signed by the non-resident witness and approved by the  trial
judge, requests the Comptroller of Public Accounts to reimburse Potter County, pursuant to Tex.  Code
of Crim. Proc. Ann. article 35.27 (Vernon 2006), for expenses incurred by the witness,  but  paid  by
Potter County, on account of her attendance as a witness in Appellant's case.

[8]Unless a material change in his financial resources occurs, once a  criminal  defendant  has  been
found to be indigent, he is presumed indigent for the remainder of the proceedings.  Tex. Code  Crim.
Proc. Ann. art. 26.04(p) (Vernon Supp. 2009).

[9]Article 35.27 states, in pertinent part, as follows:

      Every person subpoenaed by either party or otherwise required or requested in  writing  by  the
      prosecuting attorney or the court to appear for the purpose of giving testimony in  a  criminal
      proceeding who resides outside the state or the county in  which  the  prosecution  is  pending
      shall be reimbursed by the state for the reasonable and  necessary  transportation,  meal,  and
      lodging expenses he incurs by reason of his attendance as a witness at such proceeding.

See Tex. Code Crim. Proc. Ann. art. 35.27, § 1(a) (Vernon 2006).



[10]For convenience, we will cite provisions of the Texas Code of Criminal Procedure  throughout  the
remainder of this opinion simply as "article _______."

[11]The overall framework for the assessment of costs by a trial court in a  criminal  proceeding  is
both convoluted and confusing.  Part of this confusion is created by the fact that customarily  bills
of costs prepared by court clerks do not reflect the authority by which  those  costs  are  assessed.
Adding to the confusion is the plethora of overlapping legislatively enacted provisions dealing  with
costs to be paid by criminal defendants.  See, e.g., Tex. Alco.  Bev.  Code  Ann.  §  106.12  (Vernon
2007); Tex. Bus. & Com. Code Ann. § 3.506 (Vernon Supp. 2009); Tex. Bus.  Org.  Code  Ann.  §  10.365
(Vernon Pamph. Supp. 2009); Tex. Code Crim. Proc. Ann. arts. 17.42, 17.43,  17.441,  37.073,  42.037,
42.12, 42.22, 45.0216, 45.026, 45.041, 45.051,  45.055,  45.0511(c-1),  45.0511(f)(1  -  2),  45.052,
45.203, 62.353, 102.001 - 102.072, 103.0031 (Vernon 2006 & Supp. 2009); Tex. Edu. Code  Ann.  §37.011
(Vernon Supp. 2009); Tex. Fam. Code Ann. §§  8.262,  8.267,  8.302,  8.303,  45.106,  53.03,  54.032,
54.0411, 54.0461, 54.0462, 54.061, 81.003, 108.006,  110.002,  110.004,  110.005,  158.319,  158.403,
158.503, 160.762, 232.013 (Vernon 2006, 2008  &  Supp.  2009);  Tex.  Gov't  Code  Ann.  §§  25.0593,
25.0594,  25.1572,  25.2223,  30.00014,  30.00147,  41.258,  51.601,   51.702   -   51,703,   54.313,
54.403,54.745, 54.663, 54.913, 54.983, 54.954, 54.1116, 76.015, 82.0361, 102.001 -  103.033,  411.081
(Vernon 2005 & Supp. 2009); Tex. Health & Safety Code  Ann.  §§  161.255,  469.004,  821.023  (Vernon
2010); Tex. Hum. Res. Code Ann. § 152.0522 (Vernon 2001); Tex. Local  Gov't  Code  Ann.  §§  118.131,
132.002, 132.003, 133.101 - 133.154, 191.007 (Vernon 2008 & Supp.  2009);  Tex.  Parks  and  Wildlife
Code Ann. §§ 12.110, 12.308 (Vernon Supp.  2009);  Tex.  Transp.  Code  Ann.  §§  284.2031,  521.026,
521.048, 542.403, 542.407, 545.412, 548.605, 601.263, 706.006 (Vernon 1999, 2007 & Supp.  2009)  (not
intended as an exhaustive list).  We encourage court clerks to  draft  their  bills  of  costs  in  a
manner that would allow a reviewing court to determine the legal authority upon  which  a  particular
fee is based.  Furthermore, as pointed out by the concurring  opinion  of  Justice  Campbell,  as  it
currently exists, article 102.002 does not provide for the assessment of any fees.   Accordingly,  we
encourage the Legislature to consider clarification of this article  in  particular  and  the  entire
court costs scheme in general.

[12]See Act of May 17, 1985, 69th Leg., R.S., ch. 269 § 1, 1985 Tex. Gen. Laws 1300, 1302.



