                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-11-00408-CR

TRISTAN LANDERS AKA TRISTAN MCNIEL,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee


                           From the 54th District Court
                            McLennan County, Texas
                           Trial Court No. 2010-1101-C2


                          MEMORANDUM OPINION


      Tristan Landers a/k/a Tristan McNiel appeals from her conviction for the offense

of tampering with a witness.       TEX. PEN. CODE ANN. § 36.05(a)(1).        On original

submission, this Court affirmed the judgment of the trial court. Landers v. State, No. 10-

11-00408-CR, 2012 Tex. App. LEXIS 7475 (Tex. App.—Waco Aug. 30, 2012) ("Landers I").

The Court of Criminal Appeals reversed our decision in part on the only ground before

it and determined that the preservation requirement of rule 33.1(a) of the rules of

appellate procedure did not apply to the imposition of the fees of the attorney pro tem
and State's investigator. Landers v. State, No. PD-1637-12, 2013 Tex. Crim. App. LEXIS

985 (Tex. Crim. App. July 3, 2013) ("Landers II"). That Court remanded this proceeding

to this Court to determine whether the trial court erred by assessing the fees of the

attorney pro tem and the State's investigator. Because we find that the trial court erred,

we modify the judgment of the trial court to delete the assessment of these fees. The

scope of this opinion is limited to the issue remanded from the Court of Criminal

Appeals. Because we resolved Landers's other issue in our prior opinion, we will not

address it here. See, generally, Landers I, 2012 Tex. App. LEXIS 7475.

Imposition of Special Prosecutor and Investigator Fees as Court Costs

        Landers complains that the trial court erred by assessing the costs of the special

prosecutor and investigator appointed to prosecute her case as court costs against her

because it lacked the statutory authority to do so. The State argues that Landers has

failed to preserve her complaint because she did not file a formal bill of exception or

comply with the procedure set forth in section 103.008 of the code of criminal

procedure. See TEX. R. APP. P. 33.2; TEX. CODE CRIM. PROC. ANN. art. 103.008 (West 2006).

In its brief on remand, the State does not argue or address whether or not the fees could

properly have been assessed.

        A formal bill of exception is required to complain on appeal "about a matter that

would not otherwise appear in the record." TEX. R. APP. P. 33.2. However, we agree

with Judge Keller's concurrence in Landers II that the error presented before us is not "a


Landers v. State                                                                    Page 2
matter that would not otherwise appear in the record." See Landers II, 2013 Tex. Crim.

App. LEXIS 985 at *10.

        Further, we do not find that Landers's purported failure to comply with the

procedure set forth in article 103.008 is applicable to the issue as set before us. See TEX.

CODE CRIM. PROC. ANN. art. 103.008 (setting forth procedure to correct assessed court

costs). We do not believe that article 103.008 is the only vehicle to challenge whether or

not the cost assessed is statutorily authorized or that the time limit of one year "after the

date of the final disposition of a case in which costs were imposed" has expired. Id. We

find that the issue of whether or not the cost of the attorney pro tem and the State's

investigator is properly before us.

        We further agree with Judge Keller's concurrence that "[t]he fee at issue in this

case—reimbursement for the cost of a prosecutor pro tem—is an item that is simply not

authorized by statute. There is nothing that can be proffered to show that the fee is

allowed." Landers II, 2013 Tex. Crim. App. LEXIS 985 at *10. Likewise, there is no

statutory authorization to assess the State's investigator's fee. We find that the trial

court erred in assessing the fee of the attorney pro tem and the State's investigator

against Landers. See Busby v. State, 984 S.W.2d 627, 630 (Tex. Crim. App. 1998). We

sustain Landers's issue.




Landers v. State                                                                       Page 3
Conclusion

        Having found that the trial court erred in assessing the costs of the attorney pro

tem and the State's investigator, we modify the judgment to delete the assessment of

those costs in the amount of $4,158.50, leaving a balance of $404.00 as court costs. We

otherwise affirm the judgment of the trial court.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Justice Davis concurs without a separate opinion)
Modified, and affirmed as modified
Opinion delivered and filed August 29, 2013
Do not publish
[CR25]




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