Affirmed as Modified; Opinion Filed November 12, 2013




                                            Court of Appeals
                                                             S     In The


                                     Fifth District of Texas at Dallas
                                                        No. 05-13-00013-CR

                                          CHARLES EARL ALLEN, Appellant
                                                       V.
                                           THE STATE OF TEXAS, Appellee

                                 On Appeal from the 291st Judicial District Court
                                              Dallas County, Texas
                                      Trial Court Cause No. F12-60768-U

                                           MEMORANDUM OPINION
                                       Before Justices Bridges, Fillmore, and Lewis
                                               Opinion by Justice Bridges
           In two issues,1 appellant Charles Earl Allen contends: (1) the evidence is insufficient to

support the trial court’s judgment that appellant pay $244 in court costs and (2) the judgment

should be reformed to properly reflect appellant was convicted of a state jail felony.                                                       As

modified, we affirm the judgment of the trial court.

Costs

           In his first issue, appellant argues the evidence is insufficient to support the trial court’s

order for him to pay $244 in court costs because the clerk’s record does not contain a bill of

costs.



     1
      Appellant filed his original point of error, alleging the insufficiency of the evidence to support the costs assessed and then later filed a
supplemental point of error, seeking to reform his conviction to a state jail felony.
       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. . . 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. at art. 103.001.

       The clerk’s record in this case did not contain a copy of the bill of costs and appellant’s

three-page designation of record on appeal did not request that a copy of the bill of costs be

included. In light of this and appellant’s specific complaint that the clerk’s record did not

contain a bill of costs, we ordered the Dallas County District Clerk to file a supplemental record

containing the certified bill of costs associated with this 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 item has been omitted).

       Appellant’s complaint that the evidence is insufficient to support the imposition of costs

because the clerk’s record did not contain a bill of costs is now moot. See Franklin v. State, 402

S.W.3d 894, 895 (Tex. App.—Dallas 2013, no pet.). We overrule his first issue.

       In response to the Court's order requiring supplementation of the record, appellant filed

two objections that the bill of costs in the supplemental clerk’s record is not a “proper bill of

costs” and the bill of costs was not filed in the trial court or brought to the trial court’s attention

before costs were entered in the judgment. For the reasons outlined below, we reject both

arguments.

       With respect to his first objection, appellant argues the bill of costs in the record is not a

“proper bill of costs,” because it is “unsigned, unsworn computer printouts.” Appellant

acknowledges the computer printouts are “certified by a deputy district clerk,” but contends they

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are improper because they have not been certified as “a proper bill of costs in accordance with

Article 103.001 or that these costs have actually been assessed against Appellant.” 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,” “stating the costs that have

accrued” if the cause is appealed.    See TEX. CODE CRIM. PROC. ANN. arts. 103.001, 103.006.

Here, the district clerk provided the costs that have accrued to date in the appellant’s case; it is

certified and signed by the district clerk. Because it meets the mandate of the code of criminal

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

       With respect to his second complaint that there is no indication the bill of costs was filed

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

judgment, 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 Coronel v. State, No. 05-12-00493, 2013 WL 3874446 at *5 (Tex. App.—

Dallas July 29, 2013, pet. filed).

       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

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). Costs are compensatory in nature and are a “nonpunitive recoupment of the costs of

judicial resources expended in connection with the trial of the case.” Id. In contrast, fines

generally must be orally pronounced in the defendant’s presence, are punitive, and are intended




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to be part of the convicted defendant’s sentence. TEX. CODE CRIM. PROC. ANN. art. 42.03 (West

Supp. 2012); Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004).

       Costs are defined and mandated by statute; a bill of costs is a governmental record which

documents those costs that have been assessed based on various factors including the crime for

which the defendant is convicted, the procedural history of the defendant’s case, and costs

incurred in trying and convicting the defendant. See, e.g., TEX. GOV’T CODE ANN. §102.041

(West Supp. 2012); see Allen v. State, No. 06-12-00166-CR, 2013 WL 1316965, at *2 (Tex.

App.—Texarkana 2013, no pet.) (bill of costs certified by district clerk is governmental record,

“merely a documentation of what occurred during trial”). The costs listed in the bill of costs are

not newly created; only the compilation of those costs is new. Further, unlike the statute

governing the award of attorney’s fees, the statutes governing costs provide that a person

convicted of an offense “shall pay” said costs without making any reference to the defendant’s

ability to pay. See, e.g., TEX. GOV’T CODE ANN. §§102.021, 102.041 (West Supp. 2012); cf.

TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2012) (explicitly conditions trial court’s

authority to order defendant to pay attorney fees on defendant’s ability to pay).

       In sum, court costs are mandated by statute; they are not discretionary and, therefore, are

not subject to approval or authorization by the trial court. Colonel, 2013 WL 3874446 at *5.

Likewise, the code does not require the bill of costs be filed at the time the trial court signs the

judgment of conviction. Id. The code only requires a bill of costs be produced if a criminal case

is appealed or costs are collected. Id. 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. We overrule his objections to the supplemented record.




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       Finally, we note that in his original brief and his objection to the bills of costs, appellant

does not challenge the propriety or legality of the specific costs assessed; therefore, we do not

address these matters.

Reformation of the Judgment

       In his supplemental issue, appellant contends the judgment should be reformed to

properly reflect that appellant was convicted of a state jail felony. The State agrees with

appellant that the judgment should be reformed “to reflect the truth that Appellant was convicted

of an offense that was a state jail felony.” The judgment states the offense is a “3rd Degree

Felony.” However, the record reflects the charge of which appellant was convicted was Evading

Arrest or Detention. See TEX. PENAL CODE ANN. §38.04. Therefore, we order the trial court’s

judgment to be modified to remove “3rd Degree Felony” and now read “State Jail Felony,”

instead. Estrada v. State, 334 S.W.3d 57, 63 (Tex. App.—Dallas 2009, no pet.) (“This Court has

the power to modify an incorrect judgment to make the record speak the truth when we have the

necessary information to do so.”) (citing 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)). As modified, we affirm the judgment of the trial court.




                                                      /David L. Bridges/
                                                      DAVID L. BRIDGES
Do Not Publish                                        JUSTICE
TEX. R. APP. P. 47
130013F.U05




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

CHARLES EARL ALLEN, Appellant                       On Appeal from the 291st Judicial District
                                                    Court, Dallas County, Texas
No. 05-13-00013-CR         V.                       Trial Court Cause No. F12-60768-U.
                                                    Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                        Justices Fillmore and Lewis participating.

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

We remove “3rd Degree Felony” and MODIFY the judgment to state appellant is convicted of a
“State Jail Felony.”

As REFORMED, the judgment is AFFIRMED.


Judgment entered November 12, 2013




                                                    /David L. Bridges/
                                                    DAVID L. BRIDGES
                                                    JUSTICE




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