                                  NO. 12-18-00280-CR

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 MICHAEL WILSON,                                   §      APPEAL FROM THE 114TH
 APPELLANT

 V.                                                §      JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                          §      SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Michael Wilson appeals his conviction for burglary of a habitation. In his sole issue,
Appellant argues that the trial court erroneously assessed a DNA testing fee as part of his court
costs. We affirm.


                                          BACKGROUND
       Appellant was charged by indictment with burglary of a habitation. Pursuant to a plea
agreement with the State, he pleaded “guilty,” and the trial court deferred a finding of guilt and
placed him on community supervision for a term of two years. The order of deferred adjudication
included a court cost assessment of $470.00, and apparently no bill of costs was generated.
       Subsequently, the State filed two motions to adjudicate guilt. The trial court denied the first
motion, and Appellant pleaded “true” to the allegations in the second motion. After a hearing, the
trial court adjudicated Appellant “guilty” of the offense, revoked his community supervision, and
assessed his punishment at imprisonment for fifteen years. The judgment adjudicating guilt
included a court cost assessment of $495.00, and a bill of costs was generated. This appeal
followed.
                                          COURT COSTS
         In Appellant’s sole issue, he argues that the trial court erred by including a DNA testing
fee among his court costs when such a fee is not statutorily authorized for the instant offense.
Standard of Review and Applicable Law
         The imposition of court costs upon a criminal defendant is a “nonpunitive recoupment of
the costs of judicial resources expended in connection with the trial of the case.” Johnson v. State
423 S.W.3d 385, 390 (Tex. Crim. App. 2014). In reviewing the assessment of court costs, we
review the record to determine whether there is a basis for the costs. Id. “[A] defendant placed on
deferred adjudication community supervision may raise issues relating to the original plea
proceeding, such as evidentiary sufficiency, only in appeals taken when deferred adjudication
community supervision is first imposed.” See Perez v. State, 424 S.W.3d 81, 85 (Tex. Crim. App.
2014).
Analysis
         Appellant argues that we should modify the judgment and withholding order in this case
to delete the DNA testing fee. The State concedes that the fee is unauthorized but argues that
Appellant failed to preserve his error. We agree with the State.
         The bill of costs in this case includes a $250.00 cost described as “DNA Testing Fee –
Sexual Offense $250.” The indictment alleges Appellant entered the habitation and committed or
attempted to commit an assault but not a sexual assault. The code of criminal procedure provides
that a person must pay a court cost of $250.00 for DNA testing when he is convicted of an offense
listed in Section 411.1471(a)(1) of the government code. TEX. CODE CRIM. PROC. ANN. art.
102.020(a)(3) (West 2018). The offense of which Appellant was convicted—burglary with intent
to commit an assault under penal code Section 30.02(a)(1) or burglary with commission of an
assault under penal code Section 30.02(a)(3)—is not listed in that section. TEX. GOV’T CODE ANN.
§ 411.1471(a)(1) (West 2019). Therefore, the DNA testing fee assessed in this case is
unauthorized.
         However, in accordance with the court of criminal appeals’s holding in Perez, we conclude
that Appellant procedurally defaulted his complaint regarding the DNA testing fee. In Perez, the
appellant was assessed $203.00 in court costs when placed on deferred adjudication community
supervision. Perez, 424 S.W.3d at 82. No bill of costs was generated at that time. Id. at 83. When
the appellant’s community supervision was revoked, the judgment adjudicating guilt included



                                                 2
court costs of $240.00, and a list of costs was generated. Id. at 82. On appeal, the appellant argued
that the newly generated list of costs afforded him no opportunity to object when the costs were
assessed. Id. He further complained that the list was not a bill of costs as required by law and that,
without a proper bill of costs, the evidence was insufficient to support the cost assessment. Id. The
court of criminal appeals observed that, even though no bill of costs was generated when the
appellant was placed on community supervision, he could have appealed the imposition of the
court costs in the deferred adjudication order or the specific amount of those costs. Id. at 86.
Consequently, the court held that he procedurally defaulted his court cost complaint with respect
to the $203.00 assessment and could appeal the imposition of only the remaining $37.00. 1 Id. at
85.
         Similarly, even though no bill of costs was generated when Appellant was placed on
deferred adjudication community supervision, like the appellant in Perez, he could have appealed
the imposition of court costs or the specific amount of those costs at that time. See id. at 86.
Therefore, by failing to raise his court cost complaint in a direct appeal from the deferred
adjudication order, he procedurally defaulted his complaint with respect to the $470.00 assessment
and can now appeal the imposition of only the remaining $25.00—which patently does not include
the $250.00 DNA testing fee—of the court costs assessed in the judgment adjudicating guilt. See
id. at 85. Accordingly, we overrule Appellant’s sole issue.


                                                  DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

                                                                        JAMES T. WORTHEN
                                                                           Chief Justice

Opinion delivered July 10, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)


         1
          The court further observed that the appellant specifically waived his right of appeal when he was placed on
deferred adjudication community supervision and held such waiver did not excuse his failure to appeal the court cost
assessment when he was placed on deferred adjudication community supervision. Perez, 424 S.W.3d at 85.




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JULY 10, 2019


                                         NO. 12-18-00280-CR


                                       MICHAEL WILSON,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 114th District Court
                         of Smith County, Texas (Tr.Ct.No. 114-1541-15)

                       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 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.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
