                                        NO. 12-12-00263-CR

                             IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                          TYLER, TEXAS

JOHN JOHNSON,                                             §             APPEAL FROM THE THIRD
APPELLANT

V.                                                        §             JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                 §              ANDERSON COUNTY, TEXAS

                                          MEMORANDUM OPINION
           John Johnson appeals from his conviction for possession of a prohibited item in a correctional
facility. In one issue, Appellant argues that the evidence is insufficient to support the trial court’s
order garnishing his inmate trust account to pay court costs and a fine. We dismiss in part and affirm
in part.


                                                   BACKGROUND
           Appellant was convicted of possessing a cellular telephone while in prison. The jury
assessed a sentence of imprisonment for four years and a fine of $5,000. The trial court imposed that
sentence. In the judgment of conviction, the trial court assessed court costs in the amount of $375.
In a separate document, the trial court ordered that Appellant’s inmate trust account be garnished to
pay a total of $5,375.1 That amount represented the $5,000 fine imposed by the jury and court costs
of $375. Appellant filed notice of appeal stating that he wished to appeal from the “judgment of
conviction.”

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           The court ordered an immediate payment of fifteen percent of the first one hundred dollars in the account,
twenty-five percent of the next four hundred dollars, and fifty percent of any amount over five hundred dollars. The court
also ordered ten percent of each additional deposit into the account to be applied to the outstanding balance.
                                   PAYMENT OF FINES AND COSTS
       In a single issue, Appellant argues that there is insufficient evidence to support the trial court’s
“assessment and garnishment order.”         Specifically, Appellant argues that the trial court was
obligated by Texas Code of Criminal Procedure Section 26.05(g) to conduct a hearing into his ability
to pay a fine, court costs, and the costs of his legal representation. We have construed this broadly as
an argument that both the garnishment order and the imposition of the fine and costs were improper.
       Appellant’s notice of appeal vested this court with jurisdiction to consider the judgment of
conviction and the sentence in this case. See TEX. R. APP. P. 25.2 (governing right to and perfection
of appeal in criminal case); Stansberry v. State, 239 S.W.3d 260, 263 (Tex. Crim. App. 2007). The
validity of a garnishment order may only be challenged in a civil appeal. See Harrell v. State, 286
S.W.3d 315, 317-19 (Tex. 2009), Johnson v. Tenth Judicial District Court of Appeals at Waco, 280
S.W.3d 866, 873-74 (Tex. Crim. App. 2008); In re Pannell, 283 S.W.3d 31, 34-35 (Tex. App.–Fort
Worth 2009, no pet.); Reed v. State, 269 S.W.3d 619, 624 (Tex. App.–San Antonio 2008, no pet.).
Accordingly, we lack jurisdiction to consider the portion of Appellant’s argument that challenges the
garnishment order. Therefore, we dismiss this part of Appellant’s issue for want of jurisdiction.
       The sufficiency of the evidence supporting an order to pay fees is a criminal law matter and
may be challenged on direct appeal from a conviction in a criminal case. See Armstrong v. State,
340 S.W.3d 759, 766 (Tex. Crim. App. 2011). In Armstrong, the court of criminal appeals reversed
a decision holding that a challenge to the imposition of attorney’s fees was a civil law matter. Id.
Instead, citing Article 26.05(g) and its decision in Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App.
2010), the court held that the sufficiency of the evidence to support the costs could be considered in a
direct appeal from a criminal conviction. See Armstrong, 340 S.W.3d at 766 & n.13.
       Appellant is correct that Section 26.05(g) predicates the court’s ordering payment of the costs
of legal services on a determination that the defendant has the financial resources to offset those costs.
TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West 2012) (“If the court determines that a defendant has
financial resources that enable him to offset in part or in whole the costs of the legal services
provided, including any expenses and costs, the court shall order the defendant to pay during the
pendency of the charges or, if convicted, as court costs the amount that it finds the defendant is able to
pay.”). In the Mayer decision, the court held that a “defendant’s financial resources and ability to
pay are explicit critical elements in the trial court’s determination of the propriety of ordering

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reimbursement of costs and fees.” Mayer, 309 S.W.3d at 556–57. Because the record in that case
lacked any evidence of the defendant’s ability to pay for legal services, the court did not disturb the
court of appeals’ decision striking the portion of the judgment that ordered reimbursement for the cost
of legal services. Id. at 557.
         By contrast, the trial court in this case did not order Appellant to pay the cost of the legal
services provided to him. The trial court ordered Appellant to pay, prospectively, the court costs and
the fine. Unlike it did for legal services reimbursement, the legislature has not preconditioned the
collection of court costs or fines on an inmate’s ability to pay. See TEX. GOV'T CODE ANN.
§§ 102.021 (court costs on conviction), 501.014(e)(5) (withdrawal pursuant to court order) (West
2012). Accordingly, this case is like Williams v. State, 332 S.W.3d 694, 700 (Tex. App.–Amarillo
2011, pet. denied), in which the trial court did not assess fees for an attorney to an indigent defendant
but did assess a fine and costs. The court of appeals noted that “[s]uch fees are properly collectable
by means of a withdrawal notification regardless of a defendant's ability to pay.” Id.
         Because Appellant’s ability to pay is not an element necessary to support the imposition of a
fine or court costs, the trial court’s judgment imposing a fine and court costs is supported by sufficient
evidence. We overrule the portion of Appellant’s sole issue relating to the imposition of the fine and
costs.


                                                     DISPOSITION
         Having dismissed Appellant’s sole issue in part and overruled it in part, we affirm the
judgment of the trial court.
                                                                    BRIAN HOYLE
                                                                      Justice


Opinion delivered May 22, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                (DO NOT PUBLISH)



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                                  COURT OF APPEALS
      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                           JUDGMENT

                                              MAY 22, 2013


                                         NO. 12-12-00263-CR


                                        JOHN JOHNSON,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                              Appeal from the 3rd Judicial District Court
                            of Anderson County, Texas. (Tr.Ct.No.30157)


                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that this court is without
jurisdiction of that portion of the appeal pertaining to the garnishment order, and that portion of the
appeal should be dismissed; in all other respects the judgment of the trial court is affirmed.
                       It is therefore ORDERED, ADJUDGED and DECREED by the court that
portion of the appeal pertaining to the garnishment order be, and the same is, hereby dismissed for
want of jurisdiction; that in all other respects the judgment of the court below is hereby affirmed;
and that this decision be certified to the court below for observance.
                       Brian Hoyle, Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.



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