MODIFY and AFFIRM; November 18 , 2013.

In The 

## Court of Appeals **Fifth District of Texas at Dallas**
No. 05
- 12
- 0 1642
- CR No. 05
- 12
- 01643
- CR
ELLIS EDWARD JAMES , Appellant
V. THE STATE OF TEXAS , Appellee On Appeal from the Criminal Distri ct Court No. 7 D allas County, Texas Trial Court Cause No s . F 12
- 16679
- Y, F12
- 16678
- Y 

### MEMORANDUM OPINION
Before Justices O’Neill, Lang

- Miers, and Evans Opinion b y 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 order s that appellant pay $264 in court costs. In four issues, appellant cont ends 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.- 2

- C OURT C OS TS 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 record s do not contain bill s of costs. The State responds that the tr ial court did n ot 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
act ion or proceeding is . . . appealed.” T EX
. C ODE C RIM
. P ROC
. A NN
. 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 cha rged the cost or the officer entitled to receive payment for the cost. Id

. a rt. 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 r ecords containing certified bill s of costs associated with each case, and the clerk did so. See T EX
. R. A PP
. P. 34.5(c)(1) (rules of appellate procedure allow supplementation of clerk’s record if relevant items has been omitted). Appellant’s complaint s t hat the evidence is insufficient to support the imposition of costs because the clerk’s record s did not contain bill s 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.); Fr anklin v. State , 402 S.W.3d 894, 89 5 (Tex. App.

— Dallas 2013, no pet.). We overrule his first and second issue. In response to the Court’s order requiring supplementation of the record s , appellant filed an object ion that the bill s of costs in the supplemen tal record s are not “proper bill [s] of costs”- 3

- and the bill s of costs w ere 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.
A ppellant first contends that the bil l s of costs in the record s 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 d oes 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 cos ts or the officer who is entitled to receive payment for the cost.” See T EX
. C ODE C RIM
. P ROC
. A NN
. 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 th at 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 bill s of costs are not “ proper” lack s merit.
See Coronel , 2013 WL 3874446, at *4.
A ppellant further argues there is no indication the bill s 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 th e 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 “ad judge the costs against the defendant, and order the collection thereof as in other cases.” T EX
. C ODE C RIM
. P ROC
. A NN
. art. 42.16 (West 2006 ). Court costs, as reflected in a certified bill of costs, are not part of the sentence, do- 4

- 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 requirem ent 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.
M ODIFY J UDGMENTS In his third and fourth issues, a ppellant 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.
T he rec ord s show that in each case, appellant pleaded true to two enhancement paragraphs during the punishment phase . T he jury found the two enhancement paragraphs true and assessed punishment in each case within the enhanced range . The judgment s , however, recit e "N/A" for the plea and f in dings on the second enhancement paragraph. We sustain appellant’s third and fourth issue. We modify the judgment s to show appellant pleaded true to two enhancement paragraphs and the jury found the enhancement paragraphs true. See T EX
. R. A PP
. 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 recite s the statute of the offens e for which appellant was convicted. Appellant was convicted of unlawful possession of a firearm by- 5

- a felon pursuant to section 46.04 of the penal code

. See T EX
. P ENAL C ODE A NN
. § 46.04(a) (West 2011 ). The judgments, however, incorrectly identify the st atute as “46.05 Penal Code

. ” We modify each judgment to show the statute for the offense is “46.04 Penal Code.” See T E X
. 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 aff ir m the trial court ’ s judgment s.

Do Not Publish T EX
. R. A PP
. P. 47 121642F.U05 /Elizabeth Lang

- Miers/ ELIZABETH LANG

- MIERS JUSTICE- 6

- 

## Court of Appeals **Fifth District of Texas at Dallas**

JUDGMENT

ELLIS EDWARD JAMES , Appellant No. 05

- 12

- 01642

- CR V.
THE STATE O F TEXAS , Appellee Appeal from the Criminal District Court No. 7 of Dallas County, Texas (Tr.Ct.No. F12

- 16679

- Y). Opinion delivered by Justice Lang

- Miers, Justices O’Neill and Evans participating.

Based on the Court’s opinion of this date, the trial co urt’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 En hancement/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

- 

## Court of Appeals **Fifth District of Texas a t Dallas** 

JUDGMENT

ELLIS EDWARD JAMES , Appellant No. 05

- 12

- 01643

- CR V.
THE STATE OF TEXAS , Appellee Appeal from the Criminal District Court No. 7 of Dallas County, Texas (Tr.Ct.No. F12

- 16678

- Y). Opinion delivered by Justice Lang

- Miers, Just ices 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 Enh ancement/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 L ang - Miers/ ELIZABETH LANG

- MIERS JUSTICE