In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-12-00166-CR

LECHRISTOPHER CHARLES ALLEN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 114th District Court

Smith County, Texas

Trial Court No. 114-2251-09

Before Morriss, C.J., Carter and Moseley, JJ.

Opinion by Justice Carter
2

OPINION

Lechristopher Charles Allen appeals his conviction for aggravated robbery with a deadly 

weapon finding.1

 See TEX. PENAL CODE ANN. § 29.03 (West 2011). After negotiating an agreed 

punishment recommendation, Allen pled guilty on April 1, 2010, and the trial court deferred 

adjudication of guilt and placed him on ten years’ community supervision. On August 6, 2012, 

the State filed an application2 to proceed to final adjudication alleging that Allen failed to 

complete alcohol and drug treatment. Allen pled true to the State’s allegations, the trial court 

found Allen guilty, and sentenced him to twenty-five years’ imprisonment. In the judgment, the 

trial court ordered Allen to pay $495.00 in court costs. 

Allen raises two issues on appeal. Allen’s first issue complains that the trial court erred 

in imposing court costs prior to a bill of costs being created and erred in ordering those costs be 

withdrawn from Allen’s inmate trust account. Allen’s second issue argues there is legally 

insufficient evidence to support the court costs in this case. We conclude (1) any error in 

ordering payment of court costs prior to the preparation of a bill of costs has not been preserved 

for review, and (2) the record supports an order to pay $195.00 in court costs.

 1

Originally appealed to the Tyler Court of Appeals, this case was transferred to this Court by the Texas Supreme 

Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2005). Except as 

discussed, we are unaware of any conflict between precedent of the Tyler Court of Appeals and that of this Court on 

any relevant issue. See TEX. R. APP. P. 41.3.

2

The State had filed at least one previous motion to adjudicate alleging possession of marihuana, contact with a drug 

user, and failure to pay fees. The trial court modified Allen’s conditions of community supervision and ordered 

Allen to participate in “SAFPF Inpatient Program.” 
3

I. Failure to Preserve Error

In his first issue, Allen complains that the trial court erred in ordering him to pay court 

costs prior to a bill of costs being prepared. The record does not contain any objection to the trial 

court’s oral pronouncement that Allen would be required to pay court costs, and there is no 

indication that Allen objected in the trial court to the written judgment on this basis. “In contrast 

to evidence-sufficiency challenges, for which no preservation of error is required, challenges to 

the propriety of trial-court rulings must be preserved for appeal.” Moore v. State, 371 S.W.3d 

221, 225 (Tex. Crim. App. 2012). We conclude that Allen has failed to preserve any error for 

appellate review.

II. The Record Contains Insufficient Evidence 

In his second issue,3 Allen challenges the sufficiency4 of the evidence of $495.00 in court 

costs ordered by the trial court. After Allen filed his appellate brief, the State supplemented the 

record with a bill of costs totaling $195.00.

5

 The State concedes that the $300.00 difference 

between the judgment and the bill of costs is error and requests we modify the judgment to 

require payment of $195.00 in court costs. See TEX. R. APP. P. 43.2(b).

 3

We note that Allen also complains about the withdrawal orders in his first issue. Since these complaints are 

intertwined with his second issue, we will address these complaints with the second issue.

4

Texas law is clear that sufficiency of the evidence cannot be forfeited and does not need to be preserved for 

appellate review. Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010) (“[S]sufficiency of evidence of 

[defendant’s] financial resources and ability to pay were likewise not waived by his failure to raise such a complaint 

at trial.”); Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004); Flanary v. State, 316 S.W.2d 897, 898 (Tex. 

Crim. App. 1958) (op. on reh’g).

5

Allen, in this appeal, did not request permission to file a supplemental brief due to the record supplementation. 
4

The Texas Court of Criminal Appeals has held that this issue concerns a criminal matter 

and can be addressed in a direct appeal.6

 The Texas Code of Criminal Procedure provides:

A cost is not payable by the person charged with the cost until a written bill is 

produced or is ready to be produced, containing the items of cost, signed by the 

officer who charged the cost or the officer who is entitled to receive payment for 

the cost. 

TEX. CODE CRIM. PROC. ANN. art. 103.001 (West 2006). “In other words, a certified bill of costs 

imposes an obligation upon a criminal defendant to pay court costs, irrespective of whether or 

not that bill is incorporated by reference into the written judgment.” Owen v. State, 352 S.W.3d 

542, 547 (Tex. App.—Amarillo 2011, no pet.). 

We first note that this Court has modified judgments in at least two cases because court 

costs are not payable until a bill of costs is produced or “ready to be produced”7 and no bill of 

costs had been prepared. See Tafolla v. State, No. 06-12-00122-CR, 2012 Tex. App. LEXIS 

10555, *1 (Tex. App.—Texarkana Dec. 20, 2012, no pet. h.) (mem. op., not designated for 

publication); Cuba v. State, No. 06-12-00106-CR, 2012 Tex. App. LEXIS 10260, *3 (Tex. 

App.—Texarkana Dec. 11, 2012, no pet.) (mem. op., not designated for publication).

8

 We 

further note that supplementation of the record with something that did not exist at trial would 

 6

The Texas Court of Criminal Appeals has recognized that an award of costs and/or attorney’s fees in a judgment of 

conviction is a criminal proceeding. Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011). We note, 

however, that the appeal of withdrawal orders are civil law matters if not raised as a collateral matter in connection 

with a criminal appeal. See id.; Harrell v. State, 286 S.W.3d 315, 318 (Tex. 2009) (concluding matter was civil 

because “the criminal case is over” and concluding post-deprivation due process sufficient for withdrawal from 

inmate trust account); see also State ex rel. Holmes v. Court of Appeals, 885 S.W.2d 389, 394 (Tex. Crim. App. 

1994) (orig. proceeding) (“Although civil and criminal law matters may occasionally overlap, when a matter is 

essentially criminal, the presence of civil law issues will not remove the matter from our jurisdiction.”).

7

TEX. CODE CRIM. PROC. ANN. art. 103.001. 

8

Although unpublished cases have no precedential value, we may take guidance from them “as an aid in developing 

reasoning that may be employed.” Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.––Amarillo 2003, pet. ref’d).
5

normally be prohibited. “[T]he supplementation rules cannot be used to create new evidence.” 

Whitehead v. State, 130 S.W.3d 866, 872 (Tex. Crim. App. 2004) (further noting appellate 

court’s review of record itself generally limited to evidence before trial court at time of trial 

court’s ruling); see Mayer, 309 S.W.3d at 557 (rejecting State’s request for remand to 

supplement record with evidence supporting attorney’s fees awarded as court costs); see also

TEX. R. APP. P. 34.5(c). 

We conclude, however, that supplementation with a newly created bill of costs is not 

prohibited by this general rule. Unlike actions taken by the trial court after an appellate record 

has been filed,9 we are not aware of any authority limiting the district clerk’s jurisdiction to 

prepare the bill of costs after an appellate record has been filed. 

The Texas Court of Criminal Appeals has explicitly held that court costs are not part of 

the sentence and do not need to be orally pronounced or incorporated by reference into the 

judgment. Armstrong, 340 S.W.3d at 766–67. Further, a bill of costs certified by the district 

clerk is not evidence,

10 but rather a governmental record. While the preparation of a bill of costs 

has significance,11 it is merely a documentation of what occurred during the trial.12 The 

 9

The trial court lacks jurisdiction once the appellate record is filed. See TEX. R. APP. P. 25.2(g) (“Once the record 

has been filed in the appellate court, all further proceedings in the trial court—except as provided otherwise by law 

or by these rules—will be suspended until the trial court receives the appellate-court mandate.”); Green v. State, 906 

S.W.2d 937, 939 (Tex. Crim. App. 1995) (findings of fact and conclusions of law entered after appellate record filed 

were void). 

10Hill cites Johnson v. State, 389 S.W.3d 513 (Tex. App.—Houston [14th Dist.] 2012, no pet. h.), in support of his 

argument. In Johnson, though, the “new evidence” excluded by the court was a computer printout of the costs, not a 

bill of costs. We believe Johnson is distinguishable because the supplementation of a computer printout was more 

akin to evidence than a certified bill of costs.

11TEX. CODE CRIM. PROC. ANN. art. 103.001 (court costs not payable until bill of costs produced or “ready to be 

produced”). 
6

substance of the bill of costs is not newly created, only the compilation of the substance is new. 

The bill of costs is an “omitted” item because it is only a compilation of records that existed 

previously. See TEX. R. APP. P. 34.5(c) (allowing for supplementation of clerk’s record “[i]f a 

relevant item has been omitted”). Thus, we conclude the State can supplement the record with 

the bill of costs.13

On October 12, 2011, Allen filed an affidavit of indigency certifying that he had an 

income of $400.00 and no assets and that he helped provide for his mother and four siblings. 

The trial court found Allen indigent on October 12 and appointed him counsel. After 

pronouncing sentence and ordering payment of court costs, the following exchange occurred 

between the trial court and Allen’s attorney:

[Defense]: Your Honor, Mr. Allen wishes to withdraw his previously 

executed waiver and he would show the Court that he continues to be indigent and 

would ask the Court to appoint counsel to give notice of appeal.

THE COURT: All right. The Court does continue the finding of 

indigence previously made with regard to you, Mr. Allen, and appoints 

Mr. Huggler to represent you on appeal. 

Once a defendant is found to be indigent, he or she is presumed, for the purpose of 

assessing attorney’s fees, to remain indigent unless there is evidence of a material change in his 

or her financial circumstances. TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (West Supp. 2012); 

see Mayer, 309 S.W.3d at 557; Roberts v. State, 327 S.W.3d 880, 884 (Tex. App.—Beaumont 

 12Unless relevant, a bill of costs is not normally required to be part of an appellate record. See Gonzales v. State, 

No. 07-10-00383-CR, 2012 Tex. App. LEXIS 6905 (Tex. App.—Amarillo Aug. 17, 2012, pet. ref’d) (mem. op., not 

designated for publication). 

13See Cardenas v. State, No. 01-11-01123-CR, 2013 Tex. App. LEXIS 2980 (Tex. App.—Houston [1st Dist.] 

Mar. 21, 2013, no pet. h.) (failure to prepare a bill of costs before entry of judgment not a due process violation).
7

2010, no pet.); cf. McFatridge v. State, 309 S.W.3d 1, 6 (Tex. Crim. App. 2010) (explaining twostep process for indigency determinations for purposes of free appellate record and appointment 

of appellate counsel). The record does not demonstrate that the trial court found a material 

change in Allen’s financial circumstances. See TEX. CODE CRIM. PROC. ANN. arts. 26.04(p), 

26.05(g) (West Supp. 2012). 

The State argues the record supports an order that Allen pay $195.00 in court costs. 

Although this amount differs from the written judgment, the Texas Court of Criminal Appeals 

has observed, “Court costs, as reflected in a certified bill of costs, need neither be orally 

pronounced nor incorporated by reference in the judgment to be effective.” Armstrong, 340 

S.W.3d at 766–67. Since Allen was declared indigent, we must determine whether an indigent 

can be ordered to pay court costs.

The Due Process Clause of the United States Constitution prohibits a state from denying, 

solely because of inability to pay, access to its courts. See Boddie v. Connecticut, 401 U.S. 371, 

374 (1971); Griffin v. Illinois, 351 U.S. 12, 18 (1956). This does not mean, though, that court 

costs cannot be recovered. The Constitution only prohibits the requirement for prepayment or 

payment in advance, which effectively denies appellate review. Boddie, 401 U.S. at 374; Griffin, 

351 U.S. at 18. 

We have not been directed to binding precedent from either the Texas Court of Criminal 

Appeals or from the Tyler Court of Appeals on this issue. The Amarillo Court of Appeals has 

held a defendant’s ability to pay is not relevant with respect to legislatively mandated court costs. 

See Owen, 352 S.W.3d at 546; Williams v. State, 332 S.W.3d 694, 700 (Tex. App.—Amarillo 
8

2011, pet denied). Other Texas Courts of Appeals, including this one, have agreed with the 

Amarillo court.

14

In Armstrong, the Amarillo Court of Appeals concluded that “the clerk’s certified bill of 

costs imposes an obligation upon [Armstrong] to pay the costs, again other than attorney’s fees, 

whether or not that bill is incorporated by reference into the judgment.” Armstrong v. State, 320 

S.W.3d 479, 481 (Tex. App.—Amarillo 2010), rev’d in part by 340 S.W.3d 759 (Tex. Crim. 

App. 2011). The Texas Court of Criminal Appeals, though, only reversed part of the Amarillo 

court’s opinion. Armstrong, 340 S.W.3d at 763. The court reversed the Amarillo court on the 

attorney’s fees issue, but left in place the court’s decision relating to court costs. Id. 

We conclude the more persuasive authority indicates that a trial court can order an 

indigent defendant to pay court costs provided payment is not demanded before the trial court 

proceedings have concluded. Although the evidence in this case is insufficient to uphold the trial 

court determination of the amount of court costs,15 the bill of costs does support an assessment of 

$195.00 for court costs (omitting attorney’s fees). We agree with the State that the trial court’s 

 14See, e.g., Rodriguez v. State, No. 06-12-00167-CR, 2013 Tex. App. LEXIS 847 (Tex. App.—Texarkana Jan. 31, 

2013, no pet. h.) (mem. op., not designated for publication); Bell v. State, No. 09-11-00462-CR, 2012 Tex. App. 

LEXIS 646 (Tex. App.—Beaumont Jan. 25, 2012, no pet.) (mem. op., not designated for publication) (subtracting 

attorney’s fees but retaining administrative costs and fees); Ludlow v. State, No. 03-11-00212-CR, 2012 Tex. App. 

LEXIS 289 (Tex. App.—Austin Jan. 11, 2012, no pet.) (mem. op., not designated for publication) (subtracting 

attorney’s fees but retaining administrative costs and fees). We note that the Tyler court vacated the entire amount 

of court costs in Proctor v. State, No. 12-11-00335-CR, 2012 Tex. App. LEXIS 7452, **6–7 (Tex. App.—Tyler 

Aug. 31, 2012, pet. ref’d, untimely filed) (mem. op., not designated for publication). But in Proctor, all of the costs 

were for attorney’s fees, not other administrative court costs. 

15Because they are compensatory rather than punitive in nature, court costs and attorney’s fees do not need to be 

orally pronounced or incorporated by reference into the judgment. Armstrong, 340 S.W.3d at 766–67. 
9

judgment and withdrawal order should be modified to order that Allen pay only $195.00 in court 

costs.16 

We modify the trial court’s judgment and withdrawal order to order payment of $195.00

in court costs. We affirm the judgment, as modified.

Jack Carter

Justice

Date Submitted: March 27, 2013

Date Decided: April 3, 2013

Publish

 16We note that the bill of costs indicates Allen has already paid $107.48.