                                 NO. 12-12-00316-CR

                        IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS

JEROME JONES,                                   §           APPEAL FROM THE 114TH
APPELLANT

V.                                              §           JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §           SMITH COUNTY, TEXAS

                                   MEMORANDUM OPINION
       Jerome Jones appeals his conviction for the felony offense of burglary of a habitation. In one
issue, Appellant challenges the sufficiency of the evidence to support the trial court’s assessment of
court costs. We modify and affirm as modified.

                                           BACKGROUND
       In April 2012, after consuming large amounts of alcohol and cocaine, Appellant approached
an open garage door, where he observed a chain saw and weed eater. Appellant intended to steal the
items, sell them, and obtain a hotel room with the proceeds. Before he could fully execute the plan,
the homeowner, a deputy employed by the Smith County Sheriff’s Department, pulled into the
driveway and observed Appellant attempting to steal the tools. The homeowner held Appellant at
gunpoint until the police arrived. Appellant was indicted for the offense of burglary of a habitation.
The indictment contained a punishment enhancement based on a prior felony conviction. Appellant
pleaded “guilty” to the charge and the enhancement.        The trial court, after accepting the plea,
assessed punishment at thirty years of imprisonment.
       In its formal pronouncement, the trial court stated, “[C]ourt costs are ordered paid. . . .” In
the judgment of conviction, the trial court ordered the payment of $574.00 in court costs. At that
time, the certified bill of costs was not in the record. After Appellant filed his notice of appeal, the
State filed a motion to supplement the appellate record, which was granted by this court. The
supplemental record contains a certified copy of the bill of costs.

                                              COURT COSTS
        In his sole issue, Appellant contends that the trial court erred by “imposing court costs not
supported by the . . . bill of costs and by ordering that the same be withdrawn from [his] inmate trust
account.”     He argues that because we cannot determine from the record the basis of the court costs
imposed, we “should modify the trial court’s judgment to delete any unsupported costs.” We construe
Appellant’s argument as a challenge to the sufficiency of the evidence.
Standard of Review
        A challenge to the sufficiency of the evidence supporting court costs is reviewable on direct
appeal in a criminal case. Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011). We
measure sufficiency by reviewing the record in the light most favorable to the award. Mayer v.
State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Johnson v. State, No. 12-12-00289-CR, 2013
WL 3054994, at *2 (Tex. App.—Tyler June 19, 2013, no pet. h.) (not yet released for publication).
Applicable Law
        A judgment shall “adjudge the costs against the defendant, and order collection thereof. . . .”
See TEX. CODE CRIM. PROC. ANN. art. 42.16 (West 2006). If a criminal action is appealed, “an
officer of the court shall certify and sign a bill of costs stating the costs that have accrued and send the
bill of costs to the court to which the action or proceeding is transferred or appealed.” Id. art.
103.006 (West 2006). The code of criminal procedure does not require that a certified bill of costs be
filed at the time the trial court signs the judgment of conviction or before a criminal case is appealed.
See id. arts. 103.006, 103.001 (West 2006). However, “[a] cost is not payable by the person charged
with the cost until a written bill is produced or is ready to be produced, containing the items of cost,
signed by the officer who charged the cost or the officer who is entitled to receive payment for the
cost.” Id. art. 103.001. Requiring a convicted defendant to pay court costs does not alter the range
of punishment and is authorized by statute. See id.; Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim.
App. 2009).

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       The rules of appellate procedure permit supplementation of the clerk’s record “[i]f a relevant
item has been omitted. . . .” See TEX. R. APP. P. 34.5(c)(1). Furthermore, when a trial court’s
assessment of costs is challenged on appeal and no bill of costs is in the record, it is appropriate to
supplement the record pursuant to Rule 34.5(c) because a bill of costs is required by Article 103.006.
See TEX. R. APP. P. 34.5(c); TEX. CODE CRIM. PROC. ANN. art. 103.006. Supplementation is
permissible because a bill of costs is a governmental record that is “merely a documentation of what
occurred during . . . the trial.” See Johnson, 2013 WL 3054994, at *1.
       In certain circumstances, a trial court has the authority to assess attorney’s fees against a
criminal defendant who received court-appointed counsel. See TEX. CODE CRIM. PROC. ANN. art.
26.05(g) (West Supp. 2012). But once a criminal defendant has been determined to be indigent, he
“is presumed to remain indigent for the remainder of the proceedings unless a material change in his
financial circumstances occurs.” Id. art. 26.04(p) (West Supp. 2012). Thus, the trial court must
determine that the defendant has financial resources which enable him to offset in part or in whole the
costs of the legal services provided, and that determination must be supported by some factual basis in
the record before attorney’s fees are imposed. See Johnson, 2013 WL 3054994, at *3. If the record
does not show that the defendant’s financial circumstances materially changed after the previous
determination that he was indigent, the evidence will be insufficient to support the imposition of
attorney’s fees.    See id. (citing Mayer, 309 S.W.3d at 553).            Unlike other court costs,
supplementation of the record to provide evidence of Appellant’s ability to pay attorney’s fees is not
appropriate. See Johnson, 2013 WL 3054994, at *2 (citing Mayer, 309 S.W.3d at 557).
Discussion
       Here, the judgment of conviction reflects that the trial court assessed $574.00 as court costs.
The judgment of conviction also includes a document identified as “Attachment A Order to Withdraw
Funds.” The attachment states that Appellant has incurred “[c]ourt costs, fees and/or fines and/or
restitution” in the amount of $574.00.
       Appellant argues that his due process rights were violated because the district clerk did not
prepare a written bill of costs before the costs were “taxed against” him. Because the record was
properly supplemented to include a certified bill of costs, we need not discuss the alleged due process
violation. See id., at *2 n.3; see also TEX. R. APP. P. 47.1.
       Appellant next contends that the portions of the costs assessed are unsupported by the

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evidence. The bill of costs itemizes the costs and fees assessed against Appellant. The attorney’s
fees total $300.00, and the remaining fees total $274.00. The court costs set out in the trial court’s
judgment are the same as those shown in the clerk’s certified bill of costs. We have verified that
each fee listed in the bill of costs is authorized by statute.1 Appellant is required to pay all of these
costs, except the attorney’s fees, regardless of his indigence. See TEX. CODE CRIM. PROC. ANN. arts.
26.05(g), 42.16; see also Johnson v. State, No. 12-12-00263-CR, 2013 WL 2286077, at *2 (Tex.
App.—Tyler May 22, 2013, no pet. h.) (mem. op., not designated for publication) (“[T]he legislature
has not preconditioned the collection of court costs or fines on an inmate’s ability to pay.”).
Therefore, the evidence is sufficient to support the trial court’s assessment of $274.00 in court costs
against Appellant.
         There is no evidence in the record, however, that Appellant’s financial circumstances
materially changed after the trial court determined that he was indigent. See TEX. CODE CRIM. PROC.
ANN. art. 26.04(p). The record shows that the trial court made two separate findings of Appellant’s
indigence—by appointing counsel to represent Appellant before his guilty plea and by appointing
appellate counsel after it found him guilty and assessed his punishment. The trial court made no
finding that Appellant has financial resources which enable him to offset in whole or in part the costs
of the legal services he was provided. Consequently, the evidence is insufficient to support the
imposition of attorney’s fees as court costs. See id. art. 26.04(p), 26.05(g); see also Johnson, 2013
WL 3054994, at *4.
         Appellant’s sole issue is sustained in part.

                                                    DISPOSITION
         Having sustained Appellant’s sole issue in part, we modify the trial court’s judgment to reflect
that the amount of court costs is $274.00. See TEX. R. APP. P. 43.2(b). We also modify Attachment
A to delete the assessment of $300.00 in attorney’s fees and to state that the total amount of “court


         1
           The bill of costs lists attorney’s fees, jury service fee, clerk’s fee, records management, records management
and preservation fee—DC, warrant fee, bond fee, arrest fee (commit and release), courthouse security, consolidated court
fees, judiciary fund county, judiciary fund state, and indigent defense court cost. All of these fees are authorized by
statute. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g); TEX. CODE CRIM. PROC. ANN. art. 102.0045(a) (West Supp.
2012); TEX. CODE CRIM. PROC. ANN. art. 102.005(a), (f) (West 2006); TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(2),
(5), (6) (West Supp. 2012); TEX. CODE CRIM. PROC. ANN. art. 102.017(a) (West Supp. 2012); TEX. LOCAL GOV’T CODE
ANN. § 133.102(a)(1) (West Supp. 2012); TEX. LOCAL GOV’T CODE ANN. § 133.105(a), (b) (West 2008); TEX. LOCAL
GOV’T CODE ANN. § 133.107(a) (West Supp. 2012).
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costs, fees and/or fines and/or restitution” is $274.00. See, e.g., Reyes v. State, 324 S.W.3d 865, 868
(Tex. App.—Amarillo 2010, no pet.). We affirm the judgment of the trial court as modified. See
TEX. R APP. P. 43.2(b).
                                                                    SAM GRIFFITH
                                                                       Justice


Opinion delivered June 25, 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
                                             JUNE 25, 2013


                                       NO. 12-12-00316-CR

                                        JEROME JONES,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee

_____________________________________________________________________________
                            Appeal from the 114th Judicial District Court
                          of Smith County, Texas. (Tr.Ct.No. 114-0750-12)
 _____________________________________________________________________________
                       THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below should be modified and, as modified, affirmed.
                       It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment below be modified to reflect that the amount of court costs is $274.00; we also
modify Attachment A to delete the assessment of $300.00 in attorney’s fees and to state that the
total amount of “court costs, fees and/or fines and/or restitution” is $274.00; that as modified, the
trial court’s judgment is affirmed; and that this decision be certified to the trial court below for
observance.
                       Sam Griffith, Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.



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