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


                  No. 06-12-00166-CR



    LECHRISTOPHER CHARLES ALLEN, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 114th District Court
                 Smith County, Texas
             Trial Court No. 114-2251-09




       Before Morriss, C.J., Carter and Moseley, JJ.
               Opinion by Justice Carter
                                              OPINION
         Lechristopher Charles Allen appeals his conviction for aggravated robbery with a deadly

weapon finding. 1 See TEX. PENAL CODE ANN. § 29.03 (West 2011). After negotiating an agreed

punishment recommendation, Allen pled guilty on April 1, 2010, and the trial court deferred

adjudication of guilt and placed him on ten years’ community supervision. On August 6, 2012,

the State filed an application 2 to proceed to final adjudication alleging that Allen failed to

complete alcohol and drug treatment. Allen pled true to the State’s allegations, the trial court

found Allen guilty, and sentenced him to twenty-five years’ imprisonment. In the judgment, the

trial court ordered Allen to pay $495.00 in court costs.

         Allen raises two issues on appeal. Allen’s first issue complains that the trial court erred

in imposing court costs prior to a bill of costs being created and erred in ordering those costs be

withdrawn from Allen’s inmate trust account. Allen’s second issue argues there is legally

insufficient evidence to support the court costs in this case. We conclude (1) any error in

ordering payment of court costs prior to the preparation of a bill of costs has not been preserved

for review, and (2) the record supports an order to pay $195.00 in court costs.




1
 Originally appealed to the Tyler 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 2005). Except as
discussed, we are unaware of any conflict between precedent of the Tyler Court of Appeals and that of this Court on
any relevant issue. See TEX. R. APP. P. 41.3.
2
 The State had filed at least one previous motion to adjudicate alleging possession of marihuana, contact with a drug
user, and failure to pay fees. The trial court modified Allen’s conditions of community supervision and ordered
Allen to participate in “SAFPF Inpatient Program.”

                                                         2
I.          Failure to Preserve Error

            In his first issue, Allen complains that the trial court erred in ordering him to pay court

costs prior to a bill of costs being prepared. The record does not contain any objection to the trial

court’s oral pronouncement that Allen would be required to pay court costs, and there is no

indication that Allen objected in the trial court to the written judgment on this basis. “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). We conclude that Allen has failed to preserve any error for

appellate review.

II.         The Record Contains Insufficient Evidence

            In his second issue, 3 Allen challenges the sufficiency 4 of the evidence of $495.00 in court

costs ordered by the trial court. After Allen filed his appellate brief, the State supplemented the

record with a bill of costs totaling $195.00. 5 The State concedes that the $300.00 difference

between the judgment and the bill of costs is error and requests we modify the judgment to

require payment of $195.00 in court costs. See TEX. R. APP. P. 43.2(b).




3
 We note that Allen also complains about the withdrawal orders in his first issue. Since these complaints are
intertwined with his second issue, we will address these complaints with the second issue.
4
 Texas law is clear that sufficiency of the evidence cannot be forfeited and does not need to be preserved for
appellate review. Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010) (“[S]sufficiency 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).
5
    Allen, in this appeal, did not request permission to file a supplemental brief due to the record supplementation.
                                                              3
           The Texas Court of Criminal Appeals has held that this issue concerns a criminal matter

and can be addressed in a direct appeal. 6 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). “In other words, a certified bill of costs

imposes an obligation upon a criminal defendant to pay court costs, irrespective of whether or

not that bill is incorporated by reference into the written judgment.” Owen v. State, 352 S.W.3d

542, 547 (Tex. App.—Amarillo 2011, no pet.).

           We first note that 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” 7 and no bill of

costs had been prepared. See Tafolla v. State, No. 06-12-00122-CR, 2012 Tex. App. LEXIS

10555, *1 (Tex. App.—Texarkana Dec. 20, 2012, no pet. h.) (mem. op., not designated for

publication); Cuba v. State, No. 06-12-00106-CR, 2012 Tex. App. LEXIS 10260, *3 (Tex.

App.—Texarkana Dec. 11, 2012, no pet.) (mem. op., not designated for publication). 8 We

further note that supplementation of the record with something that did not exist at trial would

6
 The Texas Court of Criminal Appeals has recognized that an award of costs and/or attorney’s fees in a judgment of
conviction is a criminal proceeding. Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011). We note,
however, that the appeal of withdrawal orders are civil law matters if not raised as a collateral matter in connection
with a criminal appeal. See id.; Harrell v. State, 286 S.W.3d 315, 318 (Tex. 2009) (concluding matter was civil
because “the criminal case is over” and concluding post-deprivation due process sufficient for withdrawal from
inmate trust account); see also State ex rel. Holmes v. Court of Appeals, 885 S.W.2d 389, 394 (Tex. Crim. App.
1994) (orig. proceeding) (“Although civil and criminal law matters may occasionally overlap, when a matter is
essentially criminal, the presence of civil law issues will not remove the matter from our jurisdiction.”).
7
    TEX. CODE CRIM. PROC. ANN. art. 103.001.
8
 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).
                                                          4
normally be prohibited. “[T]he supplementation rules cannot be used to create new evidence.”

Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004) (further noting appellate

court’s review of record itself generally limited to evidence before trial court at time of trial

court’s ruling); see Mayer, 309 S.W.3d at 557 (rejecting State’s request for remand to

supplement record with evidence supporting attorney’s fees awarded as court costs); see also

TEX. R. APP. P. 34.5(c).

         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, 9 we are not aware of any authority limiting the district clerk’s jurisdiction to

prepare the bill of costs after an appellate record has been filed.

         The Texas Court of Criminal Appeals has explicitly held that court costs are not part of

the sentence and do not need to be orally pronounced or incorporated by reference into the

judgment. Armstrong, 340 S.W.3d at 766–67. Further, a bill of costs certified by the district

clerk is not evidence, 10 but rather a governmental record. While the preparation of a bill of costs

has significance, 11 it is merely a documentation of what occurred during the trial. 12                          The


9
 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).
10
  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.
11
 TEX. CODE CRIM. PROC. ANN. art. 103.001 (court costs not payable until bill of costs produced or “ready to be
produced”).
                                                          5
substance of the bill of costs is not newly created, only the compilation of the substance is new.

The bill of costs is an “omitted” item because it is only a compilation of records that existed

previously. See TEX. R. APP. P. 34.5(c) (allowing for supplementation of clerk’s record “[i]f a

relevant item has been omitted”). Thus, we conclude the State can supplement the record with

the bill of costs. 13

         On October 12, 2011, Allen filed an affidavit of indigency certifying that he had an

income of $400.00 and no assets and that he helped provide for his mother and four siblings.

The trial court found Allen indigent on October 12 and appointed him counsel.                                 After

pronouncing sentence and ordering payment of court costs, the following exchange occurred

between the trial court and Allen’s attorney:

                [Defense]: Your Honor, Mr. Allen wishes to withdraw his previously
         executed waiver and he would show the Court that he continues to be indigent and
         would ask the Court to appoint counsel to give notice of appeal.

                THE COURT: All right. The Court does continue the finding of
         indigence previously made with regard to you, Mr. Allen, and appoints
         Mr. Huggler to represent you on appeal.

         Once a defendant is found to be indigent, he or she is presumed, for the purpose of

assessing attorney’s fees, 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


12
 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).
13
 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.) (failure to prepare a bill of costs before entry of judgment not a due process violation).
                                                         6
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 appellate record and appointment

of appellate counsel). The record does not demonstrate that the trial court found a material

change in Allen’s financial circumstances. See TEX. CODE CRIM. PROC. ANN. arts. 26.04(p),

26.05(g) (West Supp. 2012).

       The State argues the record supports an order that Allen pay $195.00 in court costs.

Although this amount differs from the written judgment, the Texas Court of Criminal Appeals

has observed, “Court costs, as reflected in a certified bill of costs, need neither be orally

pronounced nor incorporated by reference in the judgment to be effective.” Armstrong, 340

S.W.3d at 766–67. Since Allen was declared indigent, we must determine whether an indigent

can be ordered to pay court costs.

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

solely because of inability to pay, access to its courts. 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 only prohibits the requirement for prepayment or

payment in advance, which effectively denies appellate review. 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 from the Tyler Court of Appeals on this issue. The Amarillo Court of Appeals has

held a defendant’s ability to pay is not relevant with respect to legislatively mandated court costs.

See Owen, 352 S.W.3d at 546; Williams v. State, 332 S.W.3d 694, 700 (Tex. App.—Amarillo

                                                 7
2011, pet denied). Other Texas Courts of Appeals, including this one, have agreed with the

Amarillo court. 14

         In Armstrong, the Amarillo Court of Appeals concluded that “the clerk’s certified bill of

costs imposes an obligation upon [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, only reversed part of the Amarillo

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

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

         We conclude 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 evidence in this case is insufficient to uphold the trial

court determination of the amount of court costs, 15 the bill of costs does support an assessment of

$195.00 for court costs (omitting attorney’s fees). We agree with the State that the trial court’s




14
  See, e.g., Rodriguez v. State, No. 06-12-00167-CR, 2013 Tex. App. LEXIS 847 (Tex. App.—Texarkana Jan. 31,
2013, no pet. h.) (mem. op., not designated for publication); 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). We note that the Tyler court vacated the entire amount
of court costs in Proctor v. State, No. 12-11-00335-CR, 2012 Tex. App. LEXIS 7452, **6–7 (Tex. App.—Tyler
Aug. 31, 2012, pet. ref’d, untimely filed) (mem. op., not designated for publication). But in Proctor, all of the costs
were for attorney’s fees, not other administrative court costs.
15
 Because they are compensatory rather than punitive in nature, court costs and attorney’s fees do not need to be
orally pronounced or incorporated by reference into the judgment. Armstrong, 340 S.W.3d at 766–67.
                                                          8
judgment and withdrawal order should be modified to order that Allen pay only $195.00 in court

costs. 16

            We modify the trial court’s judgment and withdrawal order to order payment of $195.00

in court costs. We affirm the judgment, as modified.




                                                          Jack Carter
                                                          Justice

Date Submitted:               March 27, 2013
Date Decided:                 April 3, 2013

Publish




16
     We note that the bill of costs indicates Allen has already paid $107.48.
                                                              9
