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


                  No. 06-17-00009-CR



     WILLIAM MELVIN EDWARDS, JR., Appellant

                           V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 52nd District Court
                Coryell County, Texas
              Trial Court No. 16-23,249




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                                     MEMORANDUM OPINION
           After William Melvin Edwards, Jr., entered an open plea of guilty to driving while

intoxicated with a child passenger,1 the 52nd Judicial District Court of Coryell County2 found

Edwards guilty, sentenced him to fifteen months’ confinement in state jail, and assessed him court

costs of $414.00 and attorney fees of $500.00 for his court-appointed attorney. On appeal,

Edwards contends that there is insufficient evidence to support the assessment of attorney fees and

that the trial court erred in assessing an excessive jury fee and a time payment fee, and in reciting

that the conviction was the result of a plea bargain. We will modify the trial court’s judgment by

removing the purported terms of a plea bargain, removing the assessment of attorney fees,

removing the incorporation of Attachment A to the judgment, and reducing the assessment of costs

to $412.00. As modified, we will affirm the judgment.

I.         No Plea Bargain Agreement

           Under the section titled “Terms of Plea Bargain,” the trial court’s judgment of conviction

recites, “OPEN PLEA; FIFTEEN (15) MONTHS TDCJ-STATE JAIL DIVISION; $414 COURT

COST; $500 ATTORNEY FEE.” In his fourth point of error, Edwards argues that since his

conviction resulted from an open plea, the trial court’s judgment should be modified to remove all

of the language under this section. The State agrees that there was no plea bargain in this case.



1
    See TEX. PENAL CODE ANN. § 49.045 (West 2011).
2
 Originally appealed to the Tenth 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 Tenth Court of Appeals and that of this Court on any relevant issue. See TEX.
R. APP. P. 41.3.


                                                          2
After reviewing the record, we agree. The record shows that Edwards pled guilty under an open

plea. Further, nothing in the record supports the implication in this section that Edwards agreed

to the punishment, or to the assessment of court costs and attorney fees. An appellate court has

the authority to modify the judgment to make the record speak the truth when the matter has been

called to our attention by any source. French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App.

1992). This includes removing all language in the judgment incorrectly reflecting that the matter

was submitted to the trial court pursuant to a plea bargain. See Jones v. State, No. 06-12-00195-

CR, 2013 WL 1933007, at *3 (Tex. App.—Texarkana May 9, 2013, no pet.) (mem. op., not

designated for publication).3 Therefore we modify the judgment to remove all of the language

under the “Terms of Plea Bargain” section.

II.     Indigent Attorney Fees

        In his first point of error, Edwards challenges the sufficiency of the evidence supporting

the imposition of attorney fees. The State does not contest this issue and agrees that attorney fees

cannot be assessed against an indigent defendant unless there is evidence and a finding that he is

no longer indigent. We agree. Before an indigent defendant may be ordered to pay the costs of

his court-appointed attorney, the trial court must determine and find that he “has the financial

resources that enable the defendant to offset” the cost of his appointed counsel. TEX. CODE CRIM.

PROC. ANN. art. 26.05(g) (West Supp. 2016); Cates v. State, 402 S.W.3d 250, 251 (Tex. Crim.




3
 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
App. 2013); Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). Further, the record

must show a factual basis to support the trial court’s determination. See Cates, 402 S.W.3d at

251–52. In addition, a “defendant who is determined by the court to be indigent is presumed to

remain indigent for the remainder of the proceedings in the case unless a material change in the

defendant's financial circumstances occurs.” Id. at 251 (quoting TEX. CODE CRIM. PROC. ANN. art.

26.04(p) (West Supp. 2016)). In this case, there was a determination by the trial court that Edwards

was indigent, and there was never a finding by the trial court that he was able to pay any of the

costs of his appointed counsel. Therefore, there is no factual support in the record to sustain the

imposition of attorney fees in the judgment. Id. at 252.

       Consequently, in order to make the judgment speak the truth, we modify the judgment by

removing any language imposing attorney fees. Further, we note that the judgment provides,

“Attachment A, Order to Withdraw Funds, is incorporated into this judgment and made a part

hereof.” As Edwards points out, Attachment A purports to be an order to withdraw funds and

recites that the amount of court costs, fees, fines, or restitution equals $914.00. Since there were

no fines or restitution ordered by the trial court, this amount necessarily includes the $500.00 in

attorney fees and $414.00 in other costs assessed in the judgment. Therefore, since the purported

order to withdraw funds was incorporated into the judgment, in order to modify the judgment, it

would also be necessary to modify that order.

       However, the order to withdraw funds is not signed by the district judge. Rather it is signed

by the district clerk. The order purports to be entered pursuant to Section 501.014 of the Texas

Government Code. Although Section 501.014 authorizes a district court to enter an order to

                                                 4
withdraw funds, it does not authorize a district clerk to do so.         TEX. GOV’T. CODE ANN.

§ 501.014(e) (West Supp. 2016). Since Section 501.014 does not authorize the district clerk to

enter an order to withdraw funds, it is void. Therefore, we need not modify that order. However,

since the order to withdraw funds is void, and since it would be improper for the judgment to

incorporate a void order, we modify the judgment by removing the language incorporating

Attachment A.

III.   Jury Fee

       The bill of costs in this case shows that the costs included a $6.00 jury reimbursement fee.

In his second point of error, Edwards asks this Court to modify the judgment to reflect the

statutorily authorized amount of $4.00. The State does not contest this issue. With two exceptions

not applicable in this case, Article 102.0045 of the Texas Code of Criminal Procedure provides

that a person convicted of an offense shall pay, as court costs, a fee of $4.00 for the reimbursement

of juror services. TEX. CODE CRIM. PROC. ANN. art. 102.0045(a) (West Supp. 2016). Only those

costs of court authorized by statute may be assessed against a defendant. Johnson v. State, 423

S.W.3d 385, 389 (Tex. Crim. App. 2014). Since the judgment of conviction included an excessive

fee for reimbursement of juror services, we modify the judgment by reducing the costs by $2.00.

IV.    Time Payment Fee

       In his third point of error, Edwards argues that the costs of court shown in the judgment

improperly included a $25.00 time payment fee. Edwards argues that the time payment fee is

statutorily authorized only if the defendant “pays any part of a fine, court costs, or restitution on

or after the 31st day after the day on which” the judgment assessing the fine, court costs, or

                                                 5
restitution is entered. TEX. LOC. GOV’T CODE ANN. § 133.103(a)(2) (West 2008). Since the

judgment was entered on the same day as his conviction, Edwards reasons that the statutorily

required condition for assessing the time payment fee had not accrued. Thus, he argues, there is

no factual basis to assess that fee. We disagree.

            “[W]e review the assessment of court costs on appeal to determine if there is a basis for

the cost, not to determine if there was sufficient evidence offered at trial to prove each cost, and

traditional Jackson evidentiary-sufficiency principles do not apply.” Johnson, 423 S.W.3d at 390.

“[W]hen a specific amount of court costs is written in the judgment, an appellate court errs when

it deletes the specific amount if there is a basis for the cost.” Id. at 389.

            Edwards acknowledges that Section 133.103(a) provides a statutory basis for the

assessment of the time payment fee, but argues that the facts in the record do not support its

premature assessment. Essentially the same argument was made in Davis v. State, No. 04-13-

00413-CR, 2013 WL 5950128 (Tex. App.—San Antonio Nov. 6, 2013, no pet.) (mem. op., not

designated for publication), and in Perez v. State, No. 07-12-00451-CR, 2014 WL 2191995 (Tex.

App.—Amarillo May 23, 2014, pet. ref’d) (mem. op., not designated for publication).4 In holding

that the trial court properly assessed the time payment fee, the San Antonio Court of Appeals

pointed out that the bill of costs allowed Davis to pay the court costs 120 days after her release

from prison, and that nothing in the record showed that she had paid her costs before the thirty-

first day after the judgment was signed. Davis, 2013 WL 5950128, at *1. Likewise, the Amarillo

Court of Appeals upheld the assessment of a time payment fee when the bill of costs dated two


4
    See supra note 3.
                                                    6
days after the judgment was entered showed a balance owed of $70.00 and noted that since the

time payment fee is legislatively mandated, it is not subject to an evidentiary sufficiency challenge.

Perez, 2014 WL 2191995, at *3 (citing Johnson, 423 S.W.3d at 389–90).

            In this case, the judgment of conviction ordered that Edwards be immediately remanded to

the custody of the sheriff of Coryell County and then delivered to state jail for his fifteen month

sentence. It further provided that upon release from confinement, Edwards was ordered to proceed

to the district clerk’s office to pay any remaining court costs. Further, in determining whether

there is a factual basis for the assessment of costs, we may request the district clerk to supplement

the record with a current bill of costs. See Cook v. State, No. 10-12-00204-CR, 2014 WL 1016242,

at *1 (Tex. App.—Waco Mar. 13, 2014, no pet.) (mem. op., not designated for publication)5 (citing

Johnson, 423 S.W.3d at 391–92). The district clerk has supplemented the record with a bill of

costs dated July 18, 2017, which shows a balance remaining, after reduction of the attorney fees

and juror reimbursement fee, of $412.00. We find that the assessment of the time payment fee has

a factual basis in the record. We overrule Edwards’ third point of error.




5
    See supra note 3.
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       For the reasons stated, we modify the judgment by (1) removing all of the language under

the “Terms of Plea Bargain” section, (2) removing any language assessing attorney fees,

(3) removing the language incorporating Attachment A, and (4) reducing the assessed court costs

to $412.00. As modified, we affirm the judgment of the trial court.




                                                    Bailey C. Moseley
                                                    Justice

Date Submitted:       June 26, 2017
Date Decided:         August 1, 2017

Do Not Publish




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