MODIFY and AFFIRM; November 18, 2013.




                                             In The
                                  Court of Appeals
                           Fifth District of Texas at Dallas
                                      No. 05-12-01642-CR
                                      No. 05-12-01643-CR

                             ELLIS EDWARD JAMES, Appellant

                                                V.

                              THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 7
                                    Dallas County, Texas
                      Trial Court Cause Nos. F12-16679-Y, F12-16678-Y

                               MEMORANDUM OPINION
                         Before Justices O’Neill, Lang-Miers, and Evans
                                 Opinion by Justice Lang-Miers

         Ellis Edward James appeals his two convictions for unlawful possession of a firearm by a

felon.   After finding him guilty and two enhancement paragraphs true, the jury assessed

punishment at thirty-three years’ imprisonment. The trial court’s judgments also include orders

that appellant pay $264 in court costs. In four issues, appellant contends the trial court erred by

ordering him to pay court costs and the judgments should be modified to show he pleaded true to

two enhancement paragraphs and the jury found them true.            We modify the trial court’s

judgments and affirm as modified.
                                           COURT COSTS

       In his first two issues, appellant contends the evidence is insufficient to support the trial

court’s judgment in each case that appellant pay $264 in court costs because the clerk’s records

do not contain bills of costs. The State responds that the trial court did not err in assessing court

costs in each case.

       If a criminal action is appealed, “an officer of the court shall certify and sign a bill of

costs stating the costs that have been accrued and send the bill of costs to the court to which the

action or proceeding is . . . appealed.” TEX. CODE CRIM. PROC. ANN. art. 103.006 (West 2006).

Costs may not be collected from the person charged with the costs until a written bill, containing

the items of cost, is produced and signed by the officer who charged the cost or the officer

entitled to receive payment for the cost. Id. art. 103.001.

       The clerk’s record in these cases initially did not contain a copy of the bill of costs. We,

however, ordered the Dallas County District Clerk to file supplemental records containing

certified bills of costs associated with each case, and the clerk did so. See TEX. R. APP. P.

34.5(c)(1) (rules of appellate procedure allow supplementation of clerk’s record if relevant items

has been omitted).     Appellant’s complaints that the evidence is insufficient to support the

imposition of costs because the clerk’s records did not contain bills of costs are now moot. See

Coronel v. State, No. 05-12-00493-CR, 2013 WL 3874446, at *4 (Tex. App.––Dallas July 29,

2013, no pet. h.); Franklin v. State, 402 S.W.3d 894, 895 (Tex. App.—Dallas 2013, no pet.). We

overrule his first and second issue.

       In response to the Court’s order requiring supplementation of the records, appellant filed

an objection that the bills of costs in the supplemental records are not “proper bill[s] of costs”




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and the bills of costs were not filed in the trial court or brought to the trial court’s attention

before costs were entered into the judgments. We reject both arguments.

        Appellant first contends that the bills of costs in the records are not “proper bill[s] of

costs” because they are “unsigned, unsworn computer printout[s].” Appellant acknowledges the

district clerk has certified that the documents constitute costs that have accrued to date,” but says

this does not “set out the costs as required by statute.” While the code of criminal procedure

requires a record to be kept, the code is silent on the form of such a record except to the extent it

must be certified and signed “by the officer who charged the costs or the officer who is entitled

to receive payment for the cost.” See TEX. CODE CRIM. PROC. ANN. art. 103.001, .006; Coronel,

2013 WL 3874446, at *4.

       Here, in each case, the district clerk provided a “Bill of Costs Certification” containing

the costs that have accrued to date in the respective case, and the documents are certified and

signed by the district clerk. Because the documents meet the mandate of the code of criminal

procedure, we conclude appellant’s objection that the bills of costs are not “proper” lacks merit.

See Coronel, 2013 WL 3874446, at *4.

       Appellant further argues there is no indication the bills of costs were filed in the trial

court or brought to the trial court’s attention before costs were entered in the judgments.

Nothing in the code of criminal procedure or the statutes addressing the assessment of costs

against defendants requires that a bill of costs be presented to the trial court at any time before

judgment. See id. at *5.

       Article 42.16 provides that the judgment shall “adjudge the costs against the defendant,

and order the collection thereof as in other cases.” TEX. CODE CRIM. PROC. ANN. art. 42.16

(West 2006). Court costs, as reflected in a certified bill of costs, are not part of the sentence, do



                                                 -3-
not alter the range of punishment, and need not be orally pronounced or incorporated by

reference in the judgment to be effective. Armstrong v. State, 340 S.W.3d 759, 766 (Tex. Crim.

App. 2011); Coronel, 2013 WL 3874446, at *5. The code of criminal procedure does not require

the bill of costs be filed at the time the trial court signs the judgment of conviction; it only

requires a bill of costs be produced if a criminal case is appealed or costs are collected. See

Coronel, 2003 WL 3874446, at *5. Because there is no requirement that the costs be presented

to the trial court, we conclude appellant’s second objection to the supplemented record lacks

merit. See id. We overrule appellant’s objection to the supplemented record.

                                      MODIFY JUDGMENTS

       In his third and fourth issues, appellant asks us to modify the judgments to show he

pleaded true to the two enhancement paragraphs in each case and the jury found the

enhancement paragraphs to be true. The State agrees that the judgments should be modified as

appellant requests.

       The records show that in each case, appellant pleaded true to two enhancement

paragraphs during the punishment phase. The jury found the two enhancement paragraphs true

and assessed punishment in each case within the enhanced range. The judgments, however, recite

"N/A" for the plea and findings on the second enhancement paragraph. We sustain appellant’s

third and fourth issue.   We modify the judgments to show appellant pleaded true to two

enhancement paragraphs and the jury found the enhancement paragraphs true. See TEX. R. APP.

P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813

S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref d).

       We further note the judgment in each case incorrectly recites the statute of the offense for

which appellant was convicted. Appellant was convicted of unlawful possession of a firearm by



                                               -4-
a felon pursuant to section 46.04 of the penal code. See TEX. PENAL CODE ANN. § 46.04(a)

(West 2011). The judgments, however, incorrectly identify the statute as “46.05 Penal Code.”

We modify each judgment to show the statute for the offense is “46.04 Penal Code.” See TEX.

R. APP. P. 43.2(b); Bigley, 865 S.W.2d at 27–28; Asberry, 813 S.W.2d at 529–30.

       As modified, we affirm the trial court’s judgments.




                                                    /Elizabeth Lang-Miers/
                                                    ELIZABETH LANG-MIERS
                                                    JUSTICE

Do Not Publish
TEX. R. APP. P. 47

121642F.U05




                                              -5-
                               Court of Appeals
                        Fifth District of Texas at Dallas

                                      JUDGMENT


ELLIS EDWARD JAMES, Appellant                       Appeal from the Criminal District Court
                                                    No. 7 of Dallas County, Texas (Tr.Ct.No.
No. 05-12-01642-CR        V.                        F12-16679-Y).
                                                    Opinion delivered by Justice Lang-Miers,
THE STATE OF TEXAS, Appellee                        Justices O’Neill and Evans participating.



       Based on the Court’s opinion of this date, the trial court’s judgment is MODIFIED as
follows:

       The section entitled “Statute for Offense” is modified to show “46.04 Penal Code.”
       The section entitled “Plea to 2nd Enhancement/Habitual Paragraph” is modified to show
“True.”
       The section entitled “Findings on 2nd Enhancement/Habitual Paragraph” is modified to
show “True.

       As modified, we AFFIRM the trial court’s judgment.

       Judgment entered November 18, 2013.




                                                   /Elizabeth Lang-Miers/
                                                   ELIZABETH LANG-MIERS
                                                   JUSTICE




                                             -6-
                               Court of Appeals
                        Fifth District of Texas at Dallas

                                      JUDGMENT


ELLIS EDWARD JAMES, Appellant                       Appeal from the Criminal District Court
                                                    No. 7 of Dallas County, Texas (Tr.Ct.No.
No. 05-12-01643-CR        V.                        F12-16678-Y).
                                                    Opinion delivered by Justice Lang-Miers,
THE STATE OF TEXAS, Appellee                        Justices O’Neill and Evans participating.



       Based on the Court’s opinion of this date, the trial court’s judgment is MODIFIED as
follows:

       The section entitled “Statute for Offense” is modified to show “46.04 Penal Code.”
       The section entitled “Plea to 2nd Enhancement/Habitual Paragraph” is modified to show
“True.”
       The section entitled “Findings on 2nd Enhancement/Habitual Paragraph” is modified to
show “True.

       As modified, we AFFIRM the trial court’s judgment.

       Judgment entered November 18, 2013.




                                                   /Elizabeth Lang-Miers/
                                                   ELIZABETH LANG-MIERS
                                                   JUSTICE




                                             -7-
