                                                                              PD-1092-15
                     PD-1092-15                             COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                            Transmitted 8/20/2015 3:59:20 PM
                                                              Accepted 8/25/2015 4:00:54 PM
                                                                              ABEL ACOSTA
                   CAUSE NO: ________________                                         CLERK

        IN THE TEXAS COURT OF CRIMINAL APPEALS
                     AUSTIN, TEXAS

                    JENNIFER NICOLE PENA
                           Appellant

                                 v.

                       THE STATE OF TEXAS
                            Appellee


            Appeal from the 156th Judicial District Court
                     of Live Oak County, Texas
                Trial Court Cause L-12-0036-CR-B

         THIRTEENTH COURT OF APPEALS NUMBER
                     13-13-00291-CR

          PETITION FOR DISCRETIONARY REVIEW
                      APPELLANT

                  ORAL ARGUMENT REQUESTED

                               Julie M. Balovich
                               Assistant Public Defender
                               State Bar No. 24036182
                               TEXAS RIOGRANDE LEGAL AID, INC.
                               Regional Public Defender
                               331A N. Washington Street
                               Beeville, Texas 78102
                               (361) 358-1926
                               (361) 358-5158 (fax)
                               jbalovich@trla.org
August 25, 2015
                               ATTORNEYS FOR APPELLANT
                               JENNIFER PENA
             IDENTITY OF JUDGE, PARTIES AND COUNSEL

TRIAL COURT JUDGE
Hon. Starr Bauer

APPELLANT
Jennifer Nicole Pena

APPELLEE
The State of Texas

DEFENSE COUNSEL AT TRIAL
Michelle Ochoa
TEXAS RIOGRANDE LEGAL AID, INC.
BEE COUNTY REGIONAL PUBLIC DEFENDER
331A North Washington
Beeville, Texas 78102

STATE’S ATTORNEY AT TRIAL
James Sales, Assistant District Attorney
111 S. St. Mary’s St., Suite 203
Beeville TX 78102

APPELLANT’S ATTORNEY ON APPEAL
Julie Balovich
TEXAS RIOGRANDE LEGAL AID, INC.
BEE COUNTY REGIONAL PUBLIC DEFENDER
331A North Washington
Beeville, Texas 78102

STATE’S ATTORNEY ON APPEAL
Edward F. Shaughnessy, III
206 E. Locust
San Antonio, Texas 78212




                                           ii
                                         TABLE OF CONTENTS
                                                                                                                    Page

IDENTITY OF JUDGES, PARTIES AND COUNSEL ..................................                                             ii

TABLE OF CONTENTS ..................................................................................                  iii

INDEX OF AUTHORITIES.............................................................................                     iv

STATEMENT REGARDING ORAL ARGUMENT ......................................                                               1

STATEMENT OF THE CASE .........................................................................                        1

STATEMENT OF PROCEDURAL HISTORY...............................................                                         2

SOLE GROUND FOR REVIEW………………………………… .................                                                                  2

Do the Texas statutes that impose mandatory court costs on conviction
require these costs to be multiplied by the number of charges that are
prosecuted within a single court case when there is no duplication of actual
court costs or services [CR 282]?

REASONS FOR REVIEW………………………………… ...........................                                                            2

STATEMENT OF FACTS……………………………… ...............................                                                         3

ARGUMENT ...................................................................................................           5

The Thirteenth Court of Appeals erred in holding that the statutes that
impose mandatory court costs on conviction require those costs to be assessed
for each conviction that is obtained within a single cause when there is no
actual duplication of court costs or services.

PRAYER ..........................................................................................................    16

CERTIFICATE OF SERVICE ........................................................................                      17

CERTIFICATE OF COMPLIANCE ................................................................                           17

INDEX OF APPENDIX ..................................................................................                 18

                                                            iii
                        INDEX OF AUTHORITIES


FEDERAL CASES

King v. Burwell, 135 S.Ct. 2480 (2015)……………………………………….. 8

TEXAS COURT OF CRIMINAL APPEALS CASES

Brown v. State, 98 S.W.3d 180 (Tex. Crim. App. 2003).……………………........ 8

Garcia v. State, 387 S.W.3d 20 (Tex. Crim. App. 2012).…………………….... 8, 9

Hernandez v. State, 127 S.W.3d 768 (Tex. Crim. App. 2004)…………….… 7, 8, 9

Lane v. State, 933 S.W.2d 504 (Tex. Crim. App. 1996).……………………......... 8

Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581
      (Tex. Crim. App.1993)…………………………………………………… 8

Salinas v. State, No. PD-0419-14, 2014 WL 3988955 (Tex. Crim. App. 2015)..14

State. Crook, 248 S.W.3d 172 (Tex. Crim. App. 2008)…………………. ... 10, 11

State v. Neesley, 239 S.W.3d 780 (Tex. Crim. App. 2007)…………………... 9, 10

Weir v. State, 278 S.W.3d 364 (Tex. Crim. App. 2009)…………………….. .. 9, 10

Whitelaw v. State, 29 S.W.3d 129 (Tex. Crim. App. 2000)……………………… 7

TEXAS SUPREME COURT CASES

Jones v. Fowler, 969 S.W.2d 429 (Tex. 1998)………………………………. …. 8

TEXAS COURT OF APPEALS CASES

Drisker v. State, No. 03-13-00356-CR, 03-13-00357-CR; 2014 WL 4063339
      (Tex. App.—Austin, Aug. 14, 2014, no pet.h)……………………………. 9

Pena v. State, No. 13-14-00291-CR, 2015 WL 3634463

                                     iv
     (Tex. App.—Corpus Christi-Edinburg, June 11, 2015, pet. filed)
      (mem. op)………………………………………………………………. 2, 7

TEXAS CODES

TEX. CODE CRIM. PROC. art. 42.12, § 24………………………………………... 8

TEX. CODE CRIM. PROC. art. 102.0045(a)……………………………………….. 6

TEX. CODE CRIM. PROC. art. 102.005(a)………………………….. ... 10, 11, 14, 15

TEX. CODE CRIM. PROC. art. 102.008(a)……………………………………….. 12

TEX. CODE CRIM. PROC. art. 102.011…………………………………..…            12, 16

TEX. CODE CRIM. PROC. art. 102.017…………………………………………               15

TEX. CODE CRIM. PROC. art. 102.0169………………………………………….. 15

TEX. CODE CRIM. PROC. art. 102.0178……………………………………..... 4, 16

TEX. GOV’T CODE § 51.851………………………………………...................... 15

TEX. GOV’T CODE § 102.021………………………………….............. 6 , 7, 13, 16

TEX. GOV’T CODE § 102.0212………………………………….………… 6, 13, 14

TEX. GOV’T CODE § 102.041………………………………………….. … 6, 14, 15

TEX. GOV’T CODE § 102.0415 ………………………………………………. 6, 15

TEX. GOV’T CODE § 311.023…………………………………………………….. 8

TEX. HEALTH & SAFETY CODE § 481.102(3)(D)………………………………… 1

TEX. HEALTH & SAFETY CODE § 481.115(b)…………………………………….. 1

TEX. LOCAL GOV’T CODE § 133.102……………………………………………. 13

TEX. LOCAL GOV’T CODE § 133.103……………………………………………. 14

                                 v
TEX. LOCAL GOV’T CODE § 133.105……………………………………………. 13

TEX. LOCAL GOV’T CODE § 133.107……………………………………………. 14

TEX. PEN. CODE § 37.09(a)(1), (c)………………………………………………. 1

TEXAS RULES

TEX. R. APP. P. 66.3(c)…………………………………………………………… 3

TEX. R. APP. P. 66.3(d)…………………………………………………………… 2

TEX. R. APP. P. 68.2(a)………………………………………………………….. 2

SECONDARY SOURCES

OFFICE OF COURT ADMINISTRATION, A Study of the Necessity of
     Certain Court Costs and Fees in Texas, as directed by Senate Bill
     1908, 83rd Legislature (September 1, 2014, published online at
      http:/www.txcourts.gov/media/495634/SB1908-Report-FINAL.pdf)..     5-6

Practice Commentary to Section 3.03…………………………………………. 10




                                     vi
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

      Appellant Jennifer Nicole Pena files this petition for discretionary review.


              STATEMENT REGARDING ORAL ARGUMENT

      Appellant requests oral argument. Argument would aid this court in its

decision-making because the issue is one of statutory construction, the text of the

statutes governing court costs is ambiguous on its face, and the statutes are applied

differently throughout the state without this Court’s guidance.



                          STATEMENT OF THE CASE

      In one cause number, the State indicted Appellant on two charges: (1)

possession of controlled substance less than one gram, a state jail felony, and (2)

tampering with physical evidence, a third degree felony. CR 6; see TEX. HEALTH &

SAFETY CODE §§ 481.102(3)(D), 481.115(b); TEX. PEN. CODE § 37.09(a)(1), (c).

Appellant pled guilty/nolo contendere to both counts and her adjudication was

deferred for a period of five years during which time she was placed on community

supervision. CR 125-26, 137. The State moved to revoke Appellant’s community

supervision. CR 157. Following a hearing, the trial court revoked her community

supervision and sentenced her to two years in state jail for each charge to run

concurrently and court costs. RR 17.



                                          1
                 STATEMENT OF PROCEDURAL HISTORY

      On June 11, 2015, the Thirteenth Court of Appeals issued an unpublished

memorandum opinion that affirmed the judgment of the trial court as modified. See

Pena v. State, No. 13-14-00291-CR, 2015 WL 3634463 (Tex. App.—Corpus

Christi-Edinburg, June 11, 2015, pet. filed) (mem. op.). Appdx 1.         Appellant

moved for rehearing and for reconsideration en banc, both of which were denied

on July 24, 2015. Appdx 2, 3. Appellant’s petition for discretionary review is

timely filed. TEX. R. APP. P. 68.2(a).



                         SOLE GROUND FOR REVIEW

Do the Texas statutes that impose mandatory court costs on conviction

require these costs to be multiplied by the number of charges that are

prosecuted within a single court case when there is no duplication of actual

court costs or services?



                            REASONS FOR REVIEW

      The petition for discretionary review should be granted because the court of

appeals has misconstrued a statute, TEX. R. APP. P. 66.3(d), and has decided an

important question of state law in a way that conflicts with an applicable decisions




                                         2
of this Court regarding the construction of statutes and the purpose of the statutes

that impose court costs, id. 66.3(c)



                            STATEMENT OF FACTS

       The relevant facts are simple and undisputed.

       Based on facts that arose during a single incident, the State charged

Appellant Jennifer Pena by a single indictment under a single cause number with a

state jail felony (possession) and a third-degree felony (tampering with physical

evidence). CR 6.

       In a single proceeding, Appellant entered a plea bargain for both counts. CR

125. The Court signed one order of deferred adjudication for both charges. CR

137.

       The conditions of community supervision for each offense were listed in two

different documents attached to the order, but were identical except that there was

no assessment of restitution, fine, court costs, community service, or statutory

supervision fees for one of the causes (tampering). CR 126, 130, 133-34.

       The State filed two identical motions to revoke that each referenced the

violation of payment obligations that were the terms of community supervision for

only one of the offenses. CR 226-42. Appellant was only arrested one time on the




                                          3
capiases issued for the motion to revoke. CR 259-60, 267-68. Appellant was

determined to be indigent and appointed a public defender. CR 246.

      One revocation hearing took place. RR 1. Appellant entered a plea of true

for nine alleged violations in “the” motion to revoke. RR 4-6. A single exhibit was

offered: her stipulation of identity. RR 6-7; State’s Exh. 1. Based upon that plea,

the Court found Appellant guilty of both counts, revoked her community

supervision and entered two sentences for jail time to run concurrent. RR 13, 17.

Two judgments were entered, one that assessed court costs in the amount of $359

and one that assessed court costs in the amount of $277. CR 272, 277. The bill of

costs, issued May 5, 2014 reflects that each itemized court cost was assessed twice

except for the drug court cost which was assessed once for the possession charge,

pursuant to TEX. CODE CRIM. PROC. art. 102.0178:

      Criminal Court Cost                           $ 266.00
      Judicial Support Fee/Criminal 9-13            $ 12.00
      Juror Reimbursement Fee                       $ 8.00
      Time Pay                                      $ 50.00
      Drug Court Cost                               $ 60.00
      Dist. Clk Fine/Crim. Clerks Fee               $ 80.00
      Criminal Records Management                   $ 50.00
      District Court Technology Fund                $ 8.00
      Criminal Courthouse Security                  $ 10.00
      Criminal e-filing fund                        $ 10.00
      Motion to revoke                              $ 100.00




                                          4
CR 283. The court also signed two orders to withdraw funds, one for each

judgment, authorizing TDCJ to withdraw funds from Appellant’s inmate trust

account up to a certain percentage of each balance. CR 284, 289.

      Appellant asked the Thirteenth Court of Appeals to reform the judgment as

to court costs, arguing that the assessment of duplicate court costs in the single

case was erroneous where there was no duplication of court or law enforcement

services. Appellant asserted that the statutes that assess court costs are ambiguous

or silent as to whether costs may be assessed on a per conviction basis when all

convictions were obtained as part of a single prosecution under a single court case,

but that the legislative history and the statutory scheme as a whole indicates that

costs should only be assessed per court case unless actually incurred. The court of

appeals disagreed with Appellant’s argument that the statutes are ambiguous and

declined to rehear the matter or reconsider en banc.


                                   ARGUMENT

The Thirteenth Court of Appeals erred in holding that the statutes that
impose mandatory court costs on conviction require these costs to be assessed
for each conviction that is obtained within a single cause number when there
is no actual duplication of court costs or services.

      “The court fee and cost system that has been established in Texas over the

past two centuries is quite complex.” OFFICE OF COURT ADMINISTRATION, A Study

of the Necessity of Certain Court Costs and Fees in Texas, as directed by Senate


                                          5
Bill 1908, 83rd Legislature at 1 ( September 1, 2014, published online at

http://www.txcourts.gov/media/495634/SB1908-Report-FINAL.pdf).

       Even so, this case presents a straightforward question of statutory

interpretation as to one phrase: “convicted of an offense.” This phrase appears in

many court-cost statutes, for example:

       A person convicted of an offense shall pay the following under the
       Code of Criminal Procedure, in addition to all other costs: (1) court
       cost on conviction of any offense, other than a conviction of an
       offense relating to a pedestrian or the parking of a motor vehicle
       {Art. 102.0045, Code of Criminal procedure) . . . $4; . . .

TEX. GOV’T CODE § 102.021(1). While the Government Code authorizes

imposition of cost, a separate statute states the purpose of each authorized cost.

See TEX. CODE CRIM. P. art 102.0045(a) (the purpose of the cost authorized by

Gov’t Code § 102.021(1) is to reimburse the counties for the cost of juror

services).

       The phrase “convicted of an offense” appears in many other court-cost

statutes. See TEX. GOV’T CODE §102.0212 (court costs on conviction per Local

Government Code); § 102.041 (court costs on conviction in district court); §

102.0415 (additional court costs on conviction in district court).1




1
 With the exception of the motion to revoke fee and the time to pay fee, none of the challenged
court costs at issue in this case are related to a performance-related cost actually incurred in the
case.

                                                  6
      On its face, the statutory text “convicted of an offense” says nothing about

whether costs may be imposed multiple times. Despite the fact that the statute

nowhere references a situation where multiple convictions are obtained as part of

one prosecution, the court of appeals interpreted the “plain language” of this text to

mean that multiples of court costs must be imposed for each conviction of an

offense even when there has been a single adjudication in a single cause without a

showing that services or costs were multiplied. This Court should grant review to

resolve the important question of whether the court of appeals’ interpretation of the

statute is correct which would result in court costs to be assessed as a penalty and

not as an actual recoupment of costs.

      The court’s error below occurred when it decided that article 102.021 was

not ambiguous, and therefore, declined to consider the legislative purpose of the

court-cost statutes and the consolidation statute which authorized the State to bring

these offenses to trial in one cause. 2015 WL 3634463, at *4 & n.7. The cardinal

rule of statutory construction is to interpret a statute in accord with its plain

meaning. Whitelaw v. State, 29 S.W.3d 129, 131 (Tex. Crim. App. 2000). When a

statute is silent as to how or whether it applies in a specific circumstance, it is

reasonably subject to more than one meaning and is, therefore, ambiguous. See

Hernandez v. State, 127 S.W.3d 768, 771-772 (Tex. Crim. App. 2004) (finding the




                                            7
term “an indictment” ambiguous in the tolling statute because the Legislature

provided no guidance as to how prior and subsequent indictments affect tolling)

Even if the plain language of a statute appears to be unambiguous on its face, its

meaning or ambiguity can becomes evident when placed in the context of the

overall statutory scheme. See King v. Burwell, 135 S.Ct. 2480, 2492 (2015). The

Code Construction Act expressly authorizes a court to consider the object of the

statute, the consequences of a construction, and the legislative history, whether or

not a statute is ambiguous. TEX. GOV’T CODE § 311.023. Legislative intent is

determined from an entire act, not just portions of text read in isolation. Jones v.

Fowler, 969 S.W.2d 429, 432 (Tex. 1998).

      This Court has applied the principle that an otherwise “plain” meaning is

ambiguous where the statute does not provide guidance on application in a specific

situation. See, e.g., Hernandez, 127 S.W.3d at 771; Garcia v. State, 387 S.W.3d

20, 24 (Tex. Crim. App.2012) (whether article 42.12, section 24 of the Code of

Criminal Procedure replaces a common law defense); Brown v. State, 98 S.W.3d

180, 183-85 (Tex. Crim. App. 2003) (finding ambiguous a statute silent on

definition of “voluntarily”); Lanford v. Fourteenth Court of Appeals, 847 S.W.2d

581, 587 (Tex. Crim. App.1993) (finding ambiguous a statute silent on whether “a

case” refers to a criminal case or a civil case). Similarly, the statutes that authorize

imposition of mandatory court costs in Government Code Chapter 102 are entirely


                                            8
silent as to whether costs should be assessed for each offense when multiple

convictions are obtained in one cause. That silence is ambiguity.

      The statutes could be read to mean that costs are triggered on conviction of

each offense; they could also be read to mean that costs are triggered by the

conviction itself which in this case was one adjudication based upon one plea

agreement following one revocation hearing. Because the language can be read to

have two different meanings as applied in this circumstance, the statutes are

ambiguous and the court of appeals erred in refusing to consider extra textual

factors such as the legislative history and the statutory scheme. Garcia, 387

S.W.3d at 24; Hernandez, 127 S.W.3d at 771; State v. Neesley, 239 S.W.3d 780,

783 (Tex. Crim. App. 2007).

      Consideration of the standard tools for resolving statutory ambiguity

compels the conclusion that the Legislature did not intend to assess court costs for

each offense that is tried in one case as such a result would be punitive, and not

consistent with the purposes of court costs. An assessment of court costs in a

criminal case is “intended by the Legislature as a nonpunitive recoupment of the

costs of judicial resources expended in connection with the trial of a case.” Weir v.

State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009). The purpose of assessing

costs is to offset the fixed overhead expenses of judicial resources that must be

available for any one case. See Drisker v. State, No. 03-13-00356-CR, 03-13-


                                          9
00357-CR; 2014 WL 4063339, *2 (Tex. App.—Austin, Aug. 14, 2014, no pet.h.);

Weir, 278 S.W.3d at 367. Fixed costs in criminal causes are, in that way, similar to

the court costs assessed against a losing party in civil litigation – compensatory

costs to support the overhead of the judicial process. See Weir, 278 S.W.3d 366

n.4. Accordingly, just as in a civil case where the losing party is not assessed

separate costs for each individual cause of action, the convicted defendant should

not be assessed separate costs for each conviction tried as part of a single filed

case. In a cause where everything has been consolidated, there is not any extra

expenditure of fixed overhead costs associated with the case.

      Moreover, the State alone enjoys complete discretion as to whether to file

multiple charges in multiple cases or in a single court case. Section 3.02 of the

Penal Code allows the State to prosecute a defendant in a single criminal action for

all offenses arising out of the same criminal episode. Section 3.03 provides that if

an accused is found guilty for more than one offense in a consolidated action, the

sentences must run concurrently. “In effect this section treats multiple convictions

resulting from prosecution of joined offenses as a single conviction for sentencing

purposes.” Practice Commentary to Section 3.03, cited with approval in State v.

Crook, 248 S.W.3d 172, 175 (Tex. Crim. App. 2008).

      In Crook, this Court reviewed the legislative history behind Section 3.03.

One of the reasons for the legislation was to “provide prosecutors with a way to


                                          10
clear crowded dockets and to save tax-payer money by disposing of multiple

crimes in one trial.” Crook, 248 S.W.3d at 177 (quoting prosecutor Tom Hanna’s

testimony before the House Criminal Jurisprudence Sub-Committee). Should a

defendant wish to sever the offenses, she would have the right to do so but then

would face the risk of stacked sentences. Id. She would also risk the imposition of

additional court costs because the prosecution would involve additional resources

of the court.

      The Legislature’s intent that mandatory court costs be assessed per

proceeding becomes evident when other court-cost statutes are analyzed. For

instance, article 102.005 of the Code of Criminal Procedure provides that a

“defendant convicted of an offense” shall pay for the services of the clerk of court.

TEX. CODE CRIM. PROC. art. 102.005(a). Those services include all clerical duties

of a clerk, including filing the complaint, docketing the case, taxing costs, issuing

writs and subpoenas, swearing in and impaneling a jury, receiving and recording

the verdict, filing each paper in the case, and swearing in the witnesses. Id. art.

102.005(c). Appellant was assessed this cost twice. CR 283.

      But when the State chooses to consolidate the prosecution of more than one

offense in one cause, as it did in this case, these services are only provided once:

one docket, one proceeding, one jury. There is only one appeal. The same is true

for each of the other mandatory costs that were assessed twice against Appellant


                                          11
such as the jury reimbursement fee, the e-filing fund fee, the records management

fee, and the courthouse security fee. These are costs that reimburse the courts for

the judicial overhead potentially associated with a case brought in court, and

should therefore only be assessed once per cause.

      Other evidence that costs were intended to be assessed only once per

proceeding are found within the statutory scheme. For instance, article 102.008 of

the Code of Criminal Procedure, which refers to the prosecution of misdemeanors

or gambling offenses, provides that the defendant “convicted of a misdemeanor or

a gambling offense” shall pay the fee for the trial. TEX. CODE CRIM. P. art.

102.008(a). However, if two or more defendants are tried jointly, only one fee

may be charged. Id. art. 102.008(c). Under the court of appeals’ interpretation of

the “plain language” of “convicted of an offense,” the trial court must impose the

prosecutor fee twice if one defendant were convicted of two offenses in one trial,

even though the Legislature expressly provided that two defendants convicted in

one trial would share the cost.

      In sum, the language of the court-cost statutes cannot be read apart from the

statutory purpose to recoup costs associated with judicial overhead in the

administration of a case. Once the State has made the decision to conserve

resources by prosecuting multiple offenses in one consolidated cause, those court

costs are consolidated as well. Absent a showing that multiple costs were actually


                                         12
incurred, imposing duplicate costs against the defendant because she was convicted

of more than one offense in a single proceeding is punitive.

         Based upon the clear legislative intent that court costs are compensatory and

that consolidated prosecutions save money, this Court should hold that court costs

assessed when a defendant is “convicted of an offense” may only be assessed once

when a defendant is convicted of multiple offenses tried in one cause unless

services are actually incurred. With that premise, Appellant asks this Court to

order that the following court costs be reformed:

         Criminal Court Cost $ 266. Texas Local Government Code § 133.102 and

Government Code § 102.0212(a) impose an assessment of $133 on conviction of a

felony. The judgment should be reformed to $133 if its assessment is not

unconstitutional pursuant to pending litigation.2

         Judicial Support Fee $12.00. Texas Local Government Code § 133.105

and Government Code § 102.0212(5) impose an assessment of $6.00 for court-

related purposes for the support of the judiciary. This amount should be reformed

to $6.

         Juror reimbursement fee $8.00. A defendant convicted of an offense is

liable for a fee to reimburse the county for juror services. TEX. CODE CRIM. PROc.

2
  Appellant notes that the constitutionality of this court cost is being reviewed, on remand from
this Court. Salinas v. State, No. PD-0419-14, 2014 WL 3988955, *4 (Tex. Crim. App. 2015)
(reversing judgment and remanding to the court of appeals to address the merits of defendant’s
constitutionality challenge).

                                                13
§ 102.0045(a); TEX. GOV’T CODE § 102.021(1). The amount should be reformed to

$4.

      Criminal indigent defense fee $4. Local Government Code § 133.107

authorizes assessment of a $2 fee to fund indigent defense representation. This

amount should be reformed to $2.

      Time pay $50. Local Government Code § 133.103 and Government Code §

102.0212(4) impose a $25 fee for a convicted defendant’s failure to pay a fine,

court costs, restitution on or after the 31st date on which judgment is entered. This

amount should be reformed to $25 because no fine was assessed and court costs

should only have been assessed once.

      District Clerk Fine/Criminal Clerk Fee $80. Code of Criminal Procedure

§ 102.005 and Government Code § 102.041(2) impose a fee of $40 for the services

of the clerk of court to be assessed against a defendant convicted of an offense in

district court. The fee is for all clerical duties performed by the court including

filing the complaint, docketing the case, and filing papers in the case. TEX. CODE

CRIM. PROc. § 102.005(c). This amount should be reformed to $40.

      Criminal Records Management $50. The $25 fee for records management

is assessed for the services performed by the County under Chapter 203 of the

Local Government Code (records management). TEX. CODE CRIM. PROc. §




                                          14
102.005(f); TEX. GOV’T CODE § 102.041(3). The amount should be reformed to

$25.

         District court technology fund $8. A $4 fee is assessed against convicted

defendants for the cost of education and training regarding technical enhancements

and purchase and maintenance of technical enhancements for the court. TEX.

CODE CRIM. PROc. § 102.0169; TEX. GOV’T CODE § 102.041(4). This amount

should be reformed to $4.

         Criminal courthouse security $10. Code of Criminal Procedure § 102.017

and Government Code § 102.041(5) impose a $5 security fee against a defendant

convicted of a criminal offense in district court. This amount should be reformed

to $5.

         Criminal e-filing fund $10. Government Code sections 51.851 and

102.0415 impose a $5 fee for e-filing to be assessed against a defendant upon

conviction of any criminal offense. Section 51.851(e) authorizes waiver of a fee

for an individual a court determines is indigence. As Appellant was determined to

be indigent, this amount should be reformed to 0.

         Motion to revoke $100. No statute authorizes a fee for a motion to revoke.

In this case, two motions were filed that were identical; Appellant was arrested

once for both motions. Assuming that the clerk intended this fee to apply to the

services of law enforcement in arresting her pursuant to Government Code §


                                          15
102.021(3)(B) and Code of Criminal Procedure § 102.011(a)(2)(A), the fee should

only have been assessed once. This amount should be reformed to $50.

      The Clerk properly assessed a $60 cost for drug court pursuant to article

102.0178 of the Code of Criminal Procedure.



                                      PRAYER

      WHEREFORE, premises considered, Appellant prays that her petition for

discretionary review be granted and that the Court grant oral argument. On

consideration of the issue presented in the petition, Appellant requests that the

Court reverse the judgment of the Thirteenth Court of Appeals with respect to her

challenge to court costs, vacate the judgment as to court costs, and reform the

judgment as requested below to reflect court costs reduced to $334 and that the

second order to withdraw funds from her inmate trust account vacated.

      Appellant further prays for such other relief to which she may be entitled.

                                       Respectfully submitted,


                                       /s/ Julie Balovich
                                       Julie Balovich
                                       SBN 24036182
                                       Bee County Regional Public Defender
                                       331A North Washington Street
                                       Beeville, Texas 78102
                                       Tel: (361) 358-1925
                                       Fax: (361) 358-5158
                                       jbalovich@trla.org

                                          16
                         CERTIFICATE OF SERVICE

      I hereby certify that a true copy of the foregoing brief was served on

Jose Aliseda, 111 S. St. Mary’s, Suite 203, Beeville, TX 78102

Edward Shaughnessy, III, 203 E. Locust, San Antonio, TX 78212

State Prosecuting Attorney, P.O. Box 13046, Austin, TX 78711-3046

Via their addresses on file with the electronic filing manager on this 20th day of

August, 2015.

                                       /s/ Julie Balovich
                                       Julie Balovich


                      CERTIFICATE OF COMPLIANCE

      I hereby certify that this brief complies with Texas Rule of Appellate

Procedure 9.4. The computer-generated word count for the items required to be

counted in this document pursuant to Rule 9.4(i)(1) is 3,252 words.



                                       /s/ Julie Balovich
                                       Julie Balovich




                                         17
                             Appendix

Tab 1   Copy of the Fourth Court of Appeals Opinion in Jennifer Nicole
        Pena v. State of Texas

Tab 2   Order Denying Motion for Rehearing

Tab 3   Order Denying Motion for Reconsideration En Banc




                                 18
                             NUMBER 13-14-00291-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTl- EDINBURG

JENNIFER PENA,                                                               Appellant,

                                             v.

THE STATE OF TEXAS,                                                          Appellee.


                    On appeal from the 156th District Court
                         of Live Oak County, Texas.


                         MEMORANDUM OPINION

              Before Justices Rodriguez, Garza and Longoria
                Memorandum Opinion by Justice Longoria

      By three issues, appellant Jennifer Pena challenges the trial court's judgments

revoking her deferred-adjudication community supervision and imposing two concurrent

sentences of two years' imprisonment in a state jail facility. We affirm as modified.
                                         I. BACKGROUND

       The State charged appellant under a single cause number with possession of less

than one gram of cocaine, a state-jail felony (Count 1), and tampering with physical

evidence, a third-degree felony (Count 2).       See TEX. HEALTH & SAFETY CODE ANN.

§ 481.115(b) (West, Westlawthrough 2013 3d C.S.); TEX. PENAL CODE ANN.§ 37.09(a)(1 ),

(c) (West, Westlaw through 2013 3d C.S.). The charges arose from a traffic stop on

November 23, 2011, in George West, Texas, during which police found a bag containing

a white powdery substance on the ground near appellant after police asked her to exit the

front passenger seat of the vehicle. The contents of the bag later tested positive for

cocaine.

       Pursuant to a plea agreement, the trial court signed an order placing appellant on

deferred-adjudication community supervision for a term of five years. In the same order,

the trial court ordered appellant to pay $140 in restitution on Count 1, a $1,500 fine on

Count 2, and court costs. On April 2, 2014 the State filed two motions to revoke alleging

nine identical violations on each count of the terms and conditions of appellant's

community supervision. The State alleged that appellant: (1) failed to report to her

supervision officer; (2) failed to attend substance abuse treatment; (3) failed to complete

substance abuse treatment; (4) failed to submit to urinalysis testing; (5) failed to pay the

fine and court costs; (6) failed to pay restitution; (7) failed to pay community supervision

fees; (8) failed to attend moral reconation therapy; and (9) failed to complete moral

reconation therapy.

       Appellant was taken into custody on April 6, 2014.         She filed an affidavit of

indigence on April 9, 2014.     Appellant averred in the affidavit that her three minor



                                             2
daughters resided with her and that she paid $500 a month in child support. On April1 0,

2014, appellant sent a letter to the district court asking to be notified of the date of her

court appearance so she could "get back to my kids, work, and home." The trial court

held a hearing on the State's motion to revoke on April 25, 2014. At the beginning of the

hearing, appellant plead "true" to all of the allegations contained in the State's motions.

Appellant's counsel called appellant to testify to explain why she violated the terms and

conditions of her community supervision. During this testimony, appellant stated that her

monthly bills included "child support." The trial judge asked whether she had custody of

her children. Appellant responded, "No, not at the moment, I have visitation and joint

[custody]."

       Based on appellant's pleas of true, the trial court found that appellant violated the

terms and conditions of her supervision. The State recommended that the court place

appellant in an Intermediate Sanction Facility's cognitive program to address her

decision-making abilities. Appellant's counsel had no objection, but recalled appellant to

the stand to testify regarding her requested sentence. The following exchange occurred

between appellant, her counsel, and the trial court:

       [Defense]:     What is it that you're asking the Court to consider today?

       [Appellant]:   For a stronger probation. I mean, I'll do house arrest, monitor,
                      the works, report every week. I have to get back to my girls.
                      There is a CPS case against the dad and it's horrible. They're
                      missing school, they were being left home alone while they
                      work on like holidays and weekends and stuff. I have an
                      eleven, seven and a five-year old and there's six kids in their
                      house and they're all being left alone. There's been a past of
                      abuse from their stepmother. She's been removed from the
                      house by CPS and then she was gone for like three months
                      and then she came back and she took her classes. My girls
                      are begging for me. Before I came in I had my life in order,
                      things were going great. I was getting to where I needed to

                                              3
                      be and my girls were begging for me, mom we don't want to
                      live with daddy anymore. They were telling me stories that
                      was happening to them. Just, you· know, their physical
                      appearance is horrible-

       The Court:     Okay, I've heard enough. Ms. Pena, you have written a letter
                      which is in the Court's file saying that you have three children,
                      that you are a single mom and you need my help. While on
                      the face of that, that is true, but you have led me to believe
                      through that letter that you had custody of these children and
                      you do not.

       [Appellant]:   No, not full custody.

      The Court:      I don't want to hear any more about that.            You have
                      deliberately misled this Court.

       [Appellant]:   No, I don't have full custody of them.

      The Court:      Anything further?

       [Defense]:     Ms. Pena, is there anything else you want the Court to
                      consider? You're asking for house arrest with an ankle
                      monitor?

      The Court:      I don't want to hear anything else.

       [Defense]:     What are you going to do about getting to the classes?

       [Appellant]:   My license is, I think, it was February or March that I could get
                      it back and get my license so I could take myself to class to
                      get to, you know, where I need to be. I can't depend on
                      anybody else, all I can depend on is myself.

      Appellant continued to testify following this exchange. At the end of the hearing,

the trial court orally pronounced sentence at two years' imprisonment in state jail on each

count, no fine or restitution, and court costs. The court later issued a separate written

judgment of conviction for each count. The judgment for Count 1 assessed $359 in court

costs, and the judgment for Count 2 assessed $299 in court costs. The district clerk




                                              4
issued a single certified bill of costs that assessed the total amount of costs in each

judgment as $658.

                                       II. DUE PROCESS

       Appellant asserts in her first issue that the trial court denied her due process by

arbitrarily refusing to consider the full range of punishment. We disagree.

   A. Preservation of Error

       As a preliminary matter, the State argues that appellant has waived this issue by

failing to object. The State analogizes to Rhoades v. State, where the Texas Court of

Criminal Appeals concluded that the defendant waived a claim that a sentence constituted

cruel and unusual punishment by failing to object. 934 S.W.2d 113, 120 (Tex. Grim. App.

1996). However, the Texas Court of Criminal Appeals recently decided that no objection

is necessary to preserve an issue that the trial court arbitrarily refused to consider the full

range of punishment in a revocation hearing. Grado v. State, 445 S.W.3d 736, 741 (Tex.

Grim. App. 2014). We reject the State's waiver argument and will address appellant's

first argument on the merits. See id.

   B. Applicable Law

       "Due process requires a neutral and detached hearing body or officer." Brumit v.

State, 206 S.W.3d 639, 645 (Tex. Grim. App. 2006) (citing Gagnon v. Scarpelli, 411 U.S.

778, 786 (1973)). A court's arbitrary refusal to consider the entire applicable range of

punishment denies the defendant due process. Grado, 445 S.W.3d at 739; Ex parte

Brown, 158 S.W.3d 449, 454 (Tex. Grim. App. 2005). In the absence of a clear showing

to the contrary, we will presume that the trial judge was neutral, detached, and unbiased.

Brumit, 206 S.W.3d at 645 (citing Thompson v. State, 641 S.W.2d 920, 921 (Tex. Grim.



                                               5
App. [Panel. Op.]1982)). Indications that the trial judge was not biased include: (1) the

record reflects that the trial court heard extensive evidence before assessing punishment;

(2) the record contains explicit evidence that the trial court considered the full range of

punishment; and (3) the trial court made no comments indicating that it considered less

than the full range of punishment. See id.

   C. Discussion

       Appellant argues that the record rebuts the presumption that the trial judge was

impartial because "the record clearly shows [that] the trial court did not consider the full

range of punishment nor the evidence presented once she became convinced that

[appellant] had attempted to deceive the court." Appellant, however, does not direct us

to any evidence in the record that the trial court did not consider the entire applicable

range of punishment or refused to consider any evidence. The record reflects only that

the trial court stated that she did not wish to hear more about the living situation of

appellant's children after permitting appellant to testify at length on that matter.

Furthermore, the trial court permitted appellant to continue testifying until her counsel

passed the witness and rested. In the absence of any indication that the trial court did

not consider the full range of punishment, we must presume that the trial court was fair

and impartial. See id. We overrule appellant's first issue.

                                        Ill. COURT COSTS

       By her second issue, appellant challenges the assessment of courts costs against

her in both judgments. She asserts that section 102.021 of the Texas Government Code

is ambiguous regarding whether costs are to be assessed each time a person is convicted




                                             6
of an offense or each time a criminal trial terminates in one or more convictions. See TEX.

Gov'T CODE ANN. § 102.021 (West, Westlaw through 2013 3d C.S.). We disagree.

       A. Standard of Review and Applicable Law

       Statutory interpretation is a question of law that we review de novo. Tha Dang

Nguyen v. State, 359 S.W.3d 636, 641 {Tex. Crim. App. 2012). Our goal in interpreting

a statute is to effect the collective intent of the Texas Legislature. /d. We begin our

analysis with language of the statute and "attempt to discern the fair, objective meaning

of that text at the time of its enactment." Reynolds v. State, 423 S.W.3d 377, 382 (Tex.

Crim. App. 2014) (citing and quoting Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim.

App. 1991 )). If the statute's language is clear and unambiguous, we will give effect to its

plain meaning unless that interpretation would lead to absurd consequences that the

Legislature could not have intended. Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim.

App. 2014). Terms not defined in a statue are to be given their "plain and ordinary

meaning." /d. at 171.

       The Texas Code of Criminal Procedure requires that a convicted defendant pay

court costs. TEX. CoDE CRIM. PROC. ANN. arts. 42.15 (applying when the punishment is

only a fine), 42.16 (applying when punishment imposed is other than a fine) (West,

Westlaw through 2013 3d C.S.); see Johnson v. State, 423 S.W.3d 385, 389 {Tex. Crim.

App. 2014).     Only statutorily-authorized court costs may be assessed against a

defendant. TEX. CODE CRIM. PROC. ANN. art. 103.002. All costs assessed against a

defendant "can be separated into two categories:           (1) mandatory costs and (2)

discretionary costs."   Johnson, 423 S.W.3d at 389.        Section 102.021 of the Texas

Government Code provides a mandatory, non-exclusive list of costs in the Texas Code



                                             7
of Criminal Procedure that "[a] person convicted of an offense shall pay." TEX. Gov'T

CODE ANN. § 102.021 (West, Westlaw through 2013 3d C.S.); see Armstrong v. State,

340 S.W.3d 759, 763 (Tex. Grim. App. 2011) (observing that the assessment of costs in

section 102.021 of the Texas Government Code is mandatory).

       B. Discussion

       Appellant asserts that the trial court erred by assessing court costs against her in

both judgments. Appellant argues that the phrase "a person convicted of an offense shall

pay" in section 102.021 of the Texas Government Code is ambiguous because it could

mean either that the court must assess costs for each offense on which the defendant is

convicted or for each proceeding that ends with a conviction on one or more offenses.

The State responds that by issuing two judgments, the trial judge was obligated to assess

court costs in both.

       We reject appellant's argument that the statute is ambiguous.         "A statute is

ambiguous when it is reasonably susceptible to more than one understanding." Chase v.

State, 448 S.W.3d 6, 11 (Tex. Grim. App. 2014) (internal quotations omitted); Baird v.

State, 398 S.W.3d 220, 229 (Tex. Grim. App. 2013). The statute provides that "[a] person

convicted of an offense shall pay" a non-exclusive list of costs provided for in the Texas

Code of Criminal Procedure. TEX. Gov'T CODE ANN. § 102.021 (emphasis added). The

Legislature opted to use the term "offense" in the statute, the ordinary meaning of which

is "a violation of the law; a crime." BLACK's LAW DICTIONARY 1187 (9th ed. 2009). Thus,

the plain meaning of the words the Texas Legislature chose for the statute refer to

conviction for a particular offense and not a proceeding or hearing. See Dobbs, 434

S.W.3d at 171 (observing that we give terms not defined by the statute their common and



                                             8
ordinary meaning). We see nothing in the statute which makes it susceptible to a different

meaning, and appellant does not explain further. 1 Applying the plain meaning of the

words of the statute as we must, we conclude that the trial court did not err in assessing

court costs in both judgments. See id. at 170. We overrule appellant's second issue.

                                                 IV. MODIFICATION

        By her final issue, appellant requests that we modify the judgment. On Count 1,

appellant requests that we modify the judgment to reflect that: (1) appellant's sentence

on this count of two years' imprisonment was not the result of a plea bargain; and (2) the

trial court ordered appellant to pay court costs but no fine or restitution.                       Appellant

requests that we modify the judgment on Count 2: (1) to reflect that the correct penal

code section of the charged offense was section 37.09(a)(1 ); (2) to reflect that the court

ordered that appellant serve the sentence on Count 2 in a state jail facility; and (3) to

delete the notation that the trial court assessed a $1 ,500 fine. Appellant further requests

that we modify both judgments to reflect the trial court's findings as to how she violated

the terms and conditions of her community supervision. The State does not oppose

appellant's requests.

        This Court has the authority to modify the judgment when we have the information

to do so, see TEX. R. APP. P. 43.2(b), including when the written judgment is inconsistent

with the trial court's oral pronouncement of sentence. See Forcey v. State, 265 S.W.3d

921, 925 (Tex. App.-Austin 2008, no pet.); see also Burt v. State, 445 S.W.3d 752, 757

(Tex. Crim. App. 2014) (restating the general rule that "when there is a conflict between


         1 Appellant spends the remaining portion of her second issue discussing the legislative history of

several provisions of the Texas Penal Code and the Texas Government Code. However, when construing
a statute, appellate courts may not consider extrinsic aids such as legislative history without first concluding
that the meaning of a statute is ambiguous. Chase v. State, 448 S.W.3d 6, 11 (Tex. Crim. App. 2014).

                                                       9
the oral pronouncement [of sentence] and the written judgment, the oral pronouncement

controls.").

            With one exception, we conclude that the record supports appellant's requests. 2

Accordingly, we modify the judgment on Count 1 to reflect that the sentence of

imprisonment for two years was not imposed pursuant to a plea bargain and that the trial

court did not assess any fine or restitution on this count. We modify the judgment on

Count 2 to reflect that appellant was convicted under section 37.09(a)(1) of the Texas

Penal Code, that appellant was sentenced to two years' imprisonment in a state jail

facility, and that there was no fine assessed. See TEX. PENAL CODE ANN.§ 37.09(a)(1).

However, we decline appellant's request to modify the judgment to reflect the trial court's

findings because we do not have the necessary information; the trial court did not specify

which of the alleged violations it relied on in revoking appellant's probation. 3 With the

forgoing exception, we sustain appellant's third issue.




        2   The record reflects that the trial court orally pronounced sentence as follows:

        The Court is going to revoke the community supervision for [appellant] and sentence her
        in count one to two years in the State Jail division of the Texas Department of Criminal
        Justice. As to count two, the third-degree felony, two years to run concurrent with the State
        Jail felony sentence. There will be no fine, there will be no restitution, court costs will be
        assessed.

         3 A defendant whose probation is revoked has a due process right to a written statement of "the
fact finder as to the evidence relied on and the reasons for revoking probation." Ex parte Carmona, 185
S.W.3d 492,495 (Tex. Crim. App. 2006) (citing Gagnon v. Scarpelli, 411 U.S. 778, 786, (1973)). However,
an order revoking probation is sufficient without a recitation of the findings and conclusions on which the
factfinder acted unless the appellant timely requested that the trial court to make such findings. King v.
State, 649 S.W.2d 42, 46 (Tex. Crim. App. 1983) (en bane). The record does not reveal that appellant
made any such request. See id.; see also Lindsay v. State, No. 03-10-00817-CR, 2012 WL 3797604, at *2
n.1. (Tex. App.-Austin Aug. 28, 2012, no pet.) (mem. op, not designated for publication) (collecting
numerous cases applying the holding in King).

                                                       10
                                         V. CONCLUSION

       We affirm the judgment of the trial court as modified.



                                                 NORA L. LONGORIA
                                                 Justice


Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
11th day of June, 2015.




                                            11
                                                                                       FILE COPY

                                                                           NUECES COUNTY COURTHOUSE
CHIEF JUSTICE
                                                                           901 LEOPARD, 10TH FLOOR
  ROGELIO VALDEZ
                                                                           CORPUS CHRISTI, TEXAS 78401
                                                                           361-888-0416 (TEL)
JUSTICES
                                                                           361-888-0794 (FAX)
  NELDA V. RODRIGUEZ
  DORI CONTRERAS GARZA
                                                                           HIDALGO COUNTY
  GINA M. BENAVIDES

                                    Court of Appeals
                                                                           ADMINISTRATION BLDG.
  GREGORY T. PERKES
                                                                           100 E. CANO, 5TH FLOOR
  NORA L. LONGORIA
                                                                           EDINBURG, TEXAS 78539
                                                                           956-318-2405 (TEL)
CLERK
  CECILE FOY GSANGER              Thirteenth District of Texas             956-318-2403 (FAX)

                                                                           www.txcourts.gov/13thcoa

                                            July 24, 2015

      Hon. Julie Michele Balovich                   Hon. Edward F. Shaughnessy III
      Texas Rio Grande Legal Aid, Inc.              Attorney at Law
      114 N. 6th St.                                206 E. Locust Street
      Alpine, TX 79830                              San Antonio, TX 78212
      * DELIVERED VIA E-MAIL *                      * DELIVERED VIA E-MAIL *

      Hon. Jose L. Aliseda
      Bee County District Attorney
      111 S. St. Mary's St., Ste. 203
      Beeville, TX 78102
      * DELIVERED VIA E-MAIL *

      Re:       Cause No. 13-14-00291-CR
      Tr.Ct.No. L-12-0036-CR-B
      Style:    Jennifer Pena v. The State of Texas


               Appellant’s motion for rehearing in the above cause was this day DENIED by this
      Court.



                                               Very truly yours,



                                               Cecile Foy Gsanger, Clerk

      CFG:jgp

      cc:      State Prosecuting Attorney (DELIVERED VIA E-MAIL)
                                                                                     FILE COPY

                                                                         NUECES COUNTY COURTHOUSE
CHIEF JUSTICE
                                                                         901 LEOPARD, 10TH FLOOR
  ROGELIO VALDEZ
                                                                         CORPUS CHRISTI, TEXAS 78401
                                                                         361-888-0416 (TEL)
JUSTICES
                                                                         361-888-0794 (FAX)
  NELDA V. RODRIGUEZ
  DORI CONTRERAS GARZA
                                                                         HIDALGO COUNTY
  GINA M. BENAVIDES

                                    Court of Appeals
                                                                         ADMINISTRATION BLDG.
  GREGORY T. PERKES
                                                                         100 E. CANO, 5TH FLOOR
  NORA L. LONGORIA
                                                                         EDINBURG, TEXAS 78539
                                                                         956-318-2405 (TEL)
CLERK
  CECILE FOY GSANGER             Thirteenth District of Texas            956-318-2403 (FAX)

                                                                         www.txcourts.gov/13thcoa

                                          July 24, 2015

      Hon. Julie Michele Balovich                Hon. Edward F. Shaughnessy III
      Texas Rio Grande Legal Aid, Inc.           Attorney at Law
      114 N. 6th St.                             206 E. Locust Street
      Alpine, TX 79830                           San Antonio, TX 78212
      * DELIVERED VIA E-MAIL *                   * DELIVERED VIA E-MAIL *

      Hon. Jose L. Aliseda
      Bee County District Attorney
      111 S. St. Mary's St., Ste. 203
      Beeville, TX 78102
      * DELIVERED VIA E-MAIL *

      Re:       Cause No. 13-14-00291-CR
      Tr.Ct.No. L-12-0036-CR-B
      Style:    Jennifer Pena v. The State of Texas



           Appellant’s motion for rehearing en banc in the above cause was this day
      DENIED by this Court.



                                             Very truly yours,



                                             Cecile Foy Gsanger, Clerk

      CFG:jgp

      cc:   State Prosecuting Attorney (DELIVERED VIA E-MAIL)
