                                    NOS. 12-12-00333-CR
                                         12-12-00334-CR

                           IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                       TYLER, TEXAS

CARMEL MITCHELLE FOSTER,                              §        APPEALS FROM THE 7TH
APPELLANT

V.                                                    §        JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                             §         SMITH COUNTY, TEXAS

                                       MEMORANDUM OPINION
       Carmel Mitchelle Foster appeals her two convictions for practicing medicine without a
license. In one issue, Appellant challenges the sufficiency of the evidence to support the trial court’s
assessment of court costs in each case. We affirm the trial court’s judgment in cause number
12-12-00333-CR.         We modify the judgment and affirm as modified in cause number
12-12-00334-CR.


                                                BACKGROUND
       A Smith County grand jury charged Appellant by two separate indictments with the offense of
practicing medicine without a license.1 Appellant pleaded guilty in both cases without an agreement
on punishment. The trial court found Appellant guilty in one case, sentenced her to eight years of
imprisonment, and assessed a $10,000.00 fine. In the other case, the trial court found Appellant
guilty, sentenced her to ten years of imprisonment, assessed a $10,000.00 fine, and ordered restitution
in the amount of $9,270.31. The trial court ordered that court costs be paid in each case.

       1
           See TEX. OCC. CODE ANN. § 165.152(a) (West 2012).
         The judgment of conviction in both cases assessed the amount of court costs, but at the time
they were signed, a bill of costs was not filed in the record for either case. After Appellant filed her
brief, the record was supplemented with a bill of costs in both cases.


                                      SUPPLEMENTATION OF THE RECORD
         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 TEX. CODE
CRIM. PROC. ANN. arts. 103.001, 103.006 (West 2006). 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
with a bill of costs 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)(1); TEX. CODE CRIM. PROC. ANN. art. 103.006; Ballinger v. State, No.
12-12-00280-CR, 2013 WL 3054935, at *1 (Tex. App.—Tyler June 19, 2013, no pet. h.) (not yet
released for publication); Johnson v. State, No. 12-12-00289-CR, 2013 WL 3054994 at *1 (Tex.
App.—Tyler June 19, 2013, no pet. h.) (not yet released for publication). Supplementation of the
record is not appropriate, however, to provide evidence of a defendant’s ability to pay attorney’s fees.
See id. at *2 (citing Mayer v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010)).


                       SUFFICIENCY OF THE EVIDENCE SUPPORTING COURT COSTS
         In her 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 [her] inmate trust
account.”      She 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.” Because
the record has been supplemented in each case to include a bill of costs, we review Appellant’s issue
as a challenge to the sufficiency of the evidence.2
Standard of Review
         A challenge to the sufficiency of the evidence supporting court costs is reviewable on direct
appeal in a criminal case. See Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011).


         2
           Appellant argues that the withdrawal order is not valid because it was issued without ensuring her right to due
process. As a result, Appellant argues that she has no way to “challenge whether the costs were correctly assessed.” We
need not discuss the alleged due process violation because the records were supplemented with a bill of costs. See TEX.
R. APP. P. 47.1.
                                                            2
We measure sufficiency by reviewing the record in the light most favorable to the award. Mayer,
309 S.W.3d at 557; Cardenas v. State, No. 01-11-01123-CR, 2013 WL 1164365, at *6 (Tex.
App.—Houston [1st Dist.] Mar. 21, 2013, no pet.) (not yet released for publication) .
Applicable Law
           A judgment shall “adjudge the costs against the defendant, and order the collection
thereof. . . .” See TEX. CODE CRIM. PROC. ANN. art. 42.16 (West 2006). 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).
           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).3 Once a criminal defendant has been determined to be indigent, she is “presumed to remain
indigent for the remainder of the proceedings . . . unless a material change in [her] financial
circumstances occurs.” See TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2012). Thus,
the trial court must determine that the defendant has the financial resources to enable her 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. Wolfe v. State, 377 S.W.3d 141, 144 (Tex. App.—Amarillo 2012,
no pet.); see also Barrera v. State, 291 S.W.3d 515, 518 (Tex. App.—Amarillo 2009, no pet.). If
there is no determination of a defendant’s ability to pay that is supported by the record, the evidence is
insufficient to impose attorney’s fees as court costs. See TEX. CODE CRIM. PROC. ANN. arts.
26.04(p), 26.05(g); Mayer, 309 S.W.3d at 553; Wolfe, 377 S.W.3d at 146.
Discussion
           In cause number 12-12-00333-CR, the judgment of conviction reflects that the trial court
assessed $274.00 in court costs and a $10,000 fine. The judgment 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 $10,274.00. The bill of costs

3
    Article 26.05 provides,
                    If the court determines that a defendant has financial resources that enable [her] 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.

TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2012).
                                                              3
itemizes the fine and the court costs imposed, which total $10,274.00. This reflects the amounts
assessed in the judgment of conviction and its attachment. We have reviewed each of the fees listed
in the bill of costs. All fees are authorized by statute. 4 Accordingly, the evidence is sufficient to
support the trial court’s assessment of $274.00 in court costs in cause number 12-12-00333-CR. We
overrule Appellant’s sole issue as it pertains to cause number 12-12-333-CR.
         In cause number 12-12-00334-CR, the judgment of conviction reflects that the trial court
assessed $574.00 in court costs, a $10,000 fine, and $9,270.31 in restitution. The judgment 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
$19,844.31. The bill of costs itemizes the fine and the court costs imposed, which total $10,574.00.
This reflects the amount of court costs and the fine assessed in the judgment of conviction and the
attachment. We have reviewed each fee listed in the bill of costs.
         In addition to the costs imposed in cause number 12-12-00333-CR, the bill of costs in cause
number 12-12-00334-CR imposes $300.00 in attorney’s fees.                           The State concedes that the
assessment of attorney’s fees in cause number 12-12-00334-CR is improper. The record shows that
the trial court made two separate findings of Appellant’s indigence—by appointing counsel to
represent Appellant before her guilty plea and by appointing appellate counsel after her guilty plea.
There is no evidence in the record that Appellant’s financial circumstances materially changed after
the trial court determined that she was indigent. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p).
There is no determination by the trial court that Appellant has the financial resources which enable
her to offset in whole or in part the costs of the legal services provided. See Wolfe, 377 S.W.3d at
144. Consequently, the evidence is insufficient to support the imposition of attorney’s fees as court
costs. See TEX. CODE CRIM. PROC. ANN. art. 26.04(p), 26.05(g); Mayer, 309 S.W.3d at 553; Wolfe,
377 S.W.3d at 146. The evidence, however, is sufficient to support the imposition of $274.00 in
court costs. Appellant’s sole issue on appeal is sustained in part as it pertains to cause number

         4
            The bill of costs for cause number 12-12-00333-CR includes a jury service fee, clerk’s fee, records
management, records management and preservation fee—DC, warrant fee, arrest fee (commit and release), technology
fee, courthouse security, consolidated court fees, judiciary fund state, judiciary fund county, and indigent defense court
cost. See 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. arts. 102.011(a)(2), (6); 102.0169(a); 102.017(a) (West Supp. 2012);
TEX. LOC. GOV’T CODE ANN. § 133.102(a)(1) (West Supp. 2012); TEX. LOC. GOV’T CODE ANN. § 133.105(a), (b) (West
2008); TEX. LOC. GOV’T CODE ANN. § 133.107(a) (West Supp. 2012).

                                                            4
12-12-00334-CR.


                                                     DISPOSITION
         Having overruled Appellant’s sole issue as it pertains to cause number 12-12-00333-CR, we
affirm the judgment of the trial court and its attachment in that cause number. See TEX. R. APP. P.
43.2(a).
         Having sustained Appellant’s sole issue in part in cause number 12-12-00334-CR, 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 attorney’s fees and to state that
the total amount of “court costs, fees and/or fines and/or restitution” is $19,544.31. 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 in cause number 12-12-00334-CR. 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)



                                                                5
                                COURT OF APPEALS
           TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                          JUDGMENT
                                             JUNE 25, 2013


                                       NO. 12-12-00333-CR

                               CARMEL MITCHELLE FOSTER,
                                        Appellant
                                           V.
                                  THE STATE OF TEXAS,
                                        Appellee

_____________________________________________________________________________
                               Appeals from the 7th Judicial District Court
                           of Smith County, Texas. (Tr.Ct.No. 007-0398-12)
 _____________________________________________________________________________
                        THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being considered, it is the opinion of this court that there was no error in
the judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                        Sam Griffith, Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                      6
                                COURT OF APPEALS
            TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                          JUDGMENT
                                             JUNE 25, 2013


                                       NO. 12-12-00334-CR

                               CARMEL MITCHELLE FOSTER,
                                        Appellant
                                           V.
                                  THE STATE OF TEXAS,
                                        Appellee

_____________________________________________________________________________
                              Appeals from the 7th Judicial District Court
                          of Smith County, Texas. (Tr.Ct.No. 007-0399-12)
 _____________________________________________________________________________
                       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; that
Attachment A should be modified to delete the assessment of attorney’s fees and to state that the
total amount of “court costs, fees and/or fines and/or restitution” is $19,544.31; 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.




                                                      7
                     THE STATE OF TEXAS
                        MANDATE
                    *********************************************


TO THE 7TH DISTRICT COURT of SMITH COUNTY, GREETING:

        Before our Court of Appeals for the 12th Court of Appeals District of Texas, on the 25th
day of June, 2013, the cause upon appeal to revise or reverse your judgment between

                        CARMEL MITCHELLE FOSTER, Appellant

                      NO. 12-12-00333-CR; Trial Court No. 007-0398-12

                                Opinion by Sam Griffith, Justice.

                              THE STATE OF TEXAS, Appellee

was determined; and therein our said Court made its order in these words:

       “THIS CAUSE came on to be heard on the appellate record and the briefs filed herein; and
the same being considered, it is the opinion of this court that there was no error in the judgment.

       It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court
below be in all things affirmed, and that this decision be certified to the court below for
observance.”

        WHEREAS, WE COMMAND YOU to observe the order of our said Court of Appeals
for the Twelfth Court of Appeals District of Texas in this behalf, and in all things have it duly
recognized, obeyed, and executed.

        WITNESS, THE HONORABLE JAMES T. WORTHEN, Chief Justice of our Court of
Appeals for the Twelfth Court of Appeals District, with the Seal thereof affixed, at the City of
Tyler, this the ______ day of __________________, 201____.

                      CATHY S. LUSK, CLERK


                      By:_______________________________
                          Deputy Clerk



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