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


                  No. 06-12-00133-CR



       JAMES NATHAN ALEXANDER, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 188th District Court
                 Gregg County, Texas
               Trial Court No. 40028-A




       Before Morriss, C.J., Carter and Moseley, JJ.
         Memorandum Opinion by Justice Carter
                                MEMORANDUM OPINION
       James Nathan Alexander appealed his conviction by a jury for the murder of Brian

Barnett. Alexander admitted shooting Barnett, but claimed he acted in self-defense and under

the influence of sudden passion.       This Court affirmed Alexander’s conviction finding the

evidence legally sufficient to support the jury’s rejection of self-defense and legally and factually

sufficient to support the jury’s rejection of sudden passion. Alexander v. State, No. 06-12-

00133-CR, 2013 Tex. App. LEXIS 10511, at *22 (Tex. App.—Texarkana Aug. 21, 2013, no

pet.) (mem. op., not designated for publication), vacated on other grounds by No. PD-1309-13,

2014 Tex. Crim. App. Unpub. LEXIS 384 (Tex. Crim. App. Apr. 16, 2014). The clerk’s record

filed in this matter contained no bill of costs, and the State did not attempt to add a bill of costs

through supplementation. Id. at *21. Because the record lacked a bill of costs, this Court found

the evidence legally insufficient to support the trial court’s order to pay court costs and,

consequently, modified the judgment by deleting the costs and attorney’s fees assessed as court

costs. Id. at *22.

       The State filed a petition for discretionary review in the Texas Court of Criminal Appeals

raising two issues: (1) “Must the amount of court costs listed in the judgment be supported by a

bill of costs to be upheld on appeal” and (2) “Does an appellate court abuse its discretion by

refusing to sua sponte order supplementation of the record with an item that it deems the

evidence insufficient without?”     The Texas Court of Criminal Appeals granted the State’s

petition, vacated our opinion, and remanded for reconsideration in light of Johnson v. State, No.




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PD-0193-13, 2014 Tex. Crim. App. LEXIS 240 (Tex. Crim. App. Feb. 26, 2014). Alexander,

2014 Tex. Crim. App. Unpub. LEXIS 384.

       In light of Johnson, we modify the trial court’s judgment by deleting the attorney’s fees

assessed as court costs. We affirm the remaining court costs. The record, which has been

supplemented since our original opinion issued, provides some basis for the assessed court costs

other than the attorney’s fees.

I.     Attorney’s Fees

       Alexander argues that the trial court erred in assessing $9,647.50 in attorney’s fees as

court costs and requests that this assessment be deleted from the judgment. In both his original

brief and his brief on remand, Alexander argues that the trial court found he was indigent prior to

trial, he is presumed to remain indigent, and that there is no evidence he had the ability,

financially, to repay the attorney’s fees. In its original brief, the State argued that the trial

testimony constituted sufficient evidence that Alexander had adequate resources to repay the

county for his attorney’s fees and court costs.         On remand, the State relies upon the

supplemented bill of costs to support the award of attorney’s fee.

       Five months prior to trial, Alexander requested court-appointed counsel, and the trial

court found that Alexander was indigent and appointed trial counsel to represent him. Once a

defendant is found to be indigent, he or she is presumed to remain indigent unless there is

evidence of a material change in his or her financial circumstances and the trial court reconsiders

its indigence finding. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2013); see Mayer

v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Roberts v. State, 327 S.W.3d 880, 884

                                                3
(Tex. App.—Beaumont 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

record on appeal and appointment of appellate counsel).

        Before a trial court can order an individual previously adjudged to be indigent to pay all

or part of the fees of appointed counsel, the Texas Code of Criminal Procedure requires the court

to determine whether the “defendant has financial resources that enable him to offset in part or in

whole” the cost of his appointed counsel. 1 TEX. CODE CRIM. PROC. ANN. art 26.05(g) (West

Supp. 2013). “[T]he defendant’s financial resources and ability to pay are explicit critical

elements in the trial court’s determination of the propriety of ordering reimbursement of costs

and fees.” Mayer, 309 S.W.3d at 556 (reversing attorney’s fees ordered as costs). The record

must reflect some factual basis to support the trial court’s determination. Barrera v. State, 291

S.W.3d 515, 518 (Tex. App.—Amarillo 2009, no pet.); see Mayer, 309 S.W.3d at 557.

        Regarding Alexander’s financial status, the only explicit finding in the record is the trial

court’s pretrial finding on February 11, 2011, that Alexander was indigent.                        The State is

essentially arguing that this explicit finding should not control because there was evidence that

Alexander may not be indigent admitted at trial—albeit for a different purpose. We disagree.

        The State argues that Alexander lied on his initial application for appointed counsel and

that he had sufficient assets to offset the attorney’s fees all along. Alexander stated on the

Application that he was unemployed, that his only asset was a motorcycle, and that he lived with
1
 The trial court is authorized to order the payment of attorney’s fees as a condition of community supervision. See
TEX. CODE CRIM. PROC. ANN. art. 42.12, § 11(a)(11) (West Supp. 2013); cf. Bearden v. Georgia, 461 U.S. 660, 672
(1983) (recognizing imprisonment due to poverty can be equal protection violation and requiring trial court to
inquire into ability to pay).

                                                        4
friends. Alexander testified at trial that, at the time of the murder, he was employed as a

machinist in his brother-in-law’s machine shop, owned a Harley-Davidson motorcycle, owned a

pickup truck, and owned a recreational vehicle (RV), which served as his primary residence.

         The State’s argument, though, ignores the time gap between the murder and the

Application; almost six months passed between the murder and Alexander’s submission of the

Application. Although the record establishes that Alexander was employed at the time of the

murder, the record does not establish that Alexander was employed at the time of the

Application. The record establishes that Alexander returned to work after being arrested and

later quit his job. 2 We have been directed to nothing in the record that establishes the date

Alexander resigned. Alexander’s pickup truck was seized by the police as evidence in the

murder, and there is no evidence that Alexander owned the RV at the time of the Application.

Finally, the record contains no evidence concerning the monetary value of any of these assets—

either at the time of the Application or at the time of trial.

         The Texas Code of Criminal Procedure “requires a present determination of financial

resources.” Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013) (speculation about

future resources not allowed). There is no evidence that Alexander was not indigent at the time

he was ordered to pay attorney’s fees. At the time of the order, Alexander was unemployed and

facing immediate incarceration. As noted above, the record does not establish the monetary

value of Alexander’s assets.


2
 Alexander’s brother-in-law testified that Alexander returned to work after his arrest and was not fired. Alexander
resigned after his brother-in-law “tried to change some of his responsibilities in the shop, and he wasn’t happy with
the changes and decided he wanted to resign.”
                                                          5
       Second, the record contains no “present determination” or finding of Alexander’s

financial resources by the trial court. We cannot imply a finding that is in direct contravention of

an explicit finding previously made by the trial court. The evidence relied upon by the State was

not introduced to contest indigence. Alexander was never given any notice that the issue of his

indigence was being relitigated, and the trial court never made an explicit finding based on the

reconsideration of its earlier finding that Alexander was indigent.         See id. at 252 (“Here,

Appellant had been determined by the trial court to be indigent and there was never a finding by

the court that he was able to re-pay any amount of the costs of court-appointed legal counsel.”);

accord Wiley v. State, 410 S.W.3d 313, 317 (Tex. Crim. App. 2013) (“because the trial court

failed to find the applicant’s financial status changed after initially finding the appellant to be

indigent, the record is insufficient.”).    Similar to Cates, the trial court in this case never

reconsidered its initial indigence finding and, in fact, never made another indigence-related

finding.

       On remand, the State’s primary argument is that the bill of costs added to the record

through supplementation provides sufficient support for the assessment of attorney’s fees against

Alexander. This argument completely ignores the trial court’s determination that Alexander was

indigent. Further the argument fails because an appellate record cannot be supplemented with

evidence supporting attorney’s fees awarded as court costs. Mayer, 309 S.W.3d at 557.

       Because the trial court did not make a finding that Alexander had the financial resources

to offset all or a part of the fees of his appointed counsel and because the record lacks any

evidence to support such a finding, the trial court erred in assessing attorney’s fees as court costs.

                                                  6
II.    Court Costs

        Alexander’s final complaint is that the record contains no evidence to support the court

 costs assessed by the trial court. Unlike attorney’s fees, a trial court can order an indigent

 defendant to pay court costs, provided payment is not demanded before the trial court

 proceedings have concluded. See Hill v. State, No. 06-12-00163-CR, 2013 Tex. App. LEXIS

 5060, at *15 (Tex. App.—Texarkana Apr. 24, 2013, no pet.) (mem. op., not designated for

 publication). The original record in this case did not contain a bill of costs, and the State did not

 request supplementation of the record with a bill of costs

        The Texas Court of Criminal Appeals and this Court have held that the appellate record

 can be supplemented with a bill of costs. See Johnson, 2014 Tex. Crim. App. LEXIS 240; Allen

 v. State, No. 06-12-00166-CR, 2013 Tex. App. LEXIS 4171 (Tex. App.—Texarkana Apr. 3,

 2013, no pet.). The Texas Court of Criminal Appeals reasoned that “court costs are not part of

 the guilt or sentence of a criminal defendant, nor must they be proven at trial.” Johnson, 2014

 Tex. Crim. App. LEXIS 240, at *8. However, the State did not attempt to supplement the record

 in this case with a bill of costs, though it argued that the record could be supplemented.

        In Johnson, the Texas Court of Criminal Appeals held that a record can be supplemented

 with a bill of costs, but there is no requirement that an appellate record contain a bill of costs if

 the record contains some basis to support the court costs assessed. Johnson, 2014 Tex. Crim.

 App. LEXIS 240, at *23; see also Perez v. State, No. PD-0498-13, 2014 Tex. Crim. App. LEXIS

 269, at *15 (Tex. Crim. App. Mar. 12, 2014) (reaffirming limited review of court costs and




                                                  7
concluding complaints about court costs must be appealed at time community supervision

originally imposed).

        In Johnson the Texas Court of Criminal Appeals distinguished supplementation of the

appellate record with a bill of costs, on the one hand, from supplementation that creates a new

record, on the other. 3 See Johnson, 2014 Tex. Crim. App. LEXIS 240, at *13 n.4. The court

emphasized that they are distinguishable from other record supplementations because bills of

costs are authorized to be produced after trial, they are produced by the trial court clerk rather

than the trial judge, the trial court clerk has a ministerial duty to prepare and send a bill of costs,

and court costs are a collateral matter to a defendant’s guilt or punishment. Id. The court later

explained, “[T]he bill of costs merely documents reimbursable court costs already accrued in

connection with a defendant’s case.” Id. at *15–16. Johnson reasons that

        an appellant is not prejudiced by the supplementation of the record under these
        circumstances because he or she need not object at trial to contest the imposition
        of court costs on direct appeal, and an appellant has a separate statutory remedy to
        correct erroneous or unsupportable costs.

Id. at *16. The court also noted, “The State directs us to no statutory language or precedential

authority, nor have we found any, that would prevent a court of appeals from ordering an officer

of the trial court to supplement the record with a bill of costs.” See id. at *13. Thus, Johnson

suggests that this Court’s general obligation, held concurrently with the parties, to ensure an

accurate and complete record is filed applies to a bill of costs. See TEX. R. APP. P. 34.5, 35.3.




3
See LaPointe v. State, 225 S.W.3d 513, 522 (Tex. Crim. App. 2007); Berry v. State, 995 S.W.2d 699 (Tex. Crim.
App. 1999); Green v. State, 906 S.W.2d 937 (Tex. Crim. App. 1995); Duncan v. Evans, 653 S.W.2d 38, 39–40 (Tex.
Crim. App. 1983).
                                                      8
       The record has now been supplemented with a bill of costs signed by the district clerk

and with an itemized list of court costs totaling $464.00. The bill of costs provides some basis in

the record to support the trial court’s assessment of $464.00 in court costs in the judgment.

Conclusion

       For the reasons stated, we modify the judgment of the trial court by deleting the

$9,647.50 assessment of attorney’s fees and then affirm the judgment, as modified.



                                                     Jack Carter
                                                     Justice
Date Submitted:        May 15, 2014
Date Decided:          May 23, 2014

Do Not Publish




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