## IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S

NO. PD-0498-13 EDUARDO PEREZ , Appellant

v. THE STATE OF TEXAS ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS

HARRIS COUNTY J O H N S O N 

### , J., delivered the opinion o f the Court in w hich KE L L E R 

### , P.J., and M E Y E R S 

### , W O M A C K 

### , KE A S L E R 

### , H E R V E Y 

### , C O C H R A N 

### , and A L C A L Á 

### , JJ., joined. A L C A L Á 

### , J., filed a concurring opinion in w hich KE L L E R 

### , P.J., and H E R V E Y 

### , and C O C H R A N 

### , JJ., joined. P R IC E 

### , J., concurred. O P I N I O N As stated by the court of appea ls, “This is an appea l about court costs.” Perez v. State , 2013 Tex. App. L EXI S 5121, No. 14-12-00893- CR (Tex. App.—Housto n [14 Dist.] , memorandum t h opinion filed April 25, 2013) (not desig nated for publ i ca t i o n ). The state points out that the fac ts reg arding the underlying offe nse are not rele vant to this appea l about court costs, but notes that the cler k’s re cord c ontains information rele vant to the assessment of court c osts. I. BACKG ROUND2

I n J une of 2008, appellant plead g uilty to burg lary of a h ab i t at i o n and, pursuant to a plea ag r e e me nt, was place d on three y ear s’ defe rre d-adjudication community supervision and fined $300. The Order of Def

err ed Adjudica

tion included a desig nation of court costs of $203. Appellant did not appea l. I n October

of 2008, the state f

iled a motion to adjudicate a ppellant’s guilt. I n 2012, the trial court adjudicate d appellant’ s g uilt and assessed punishment at two y ear s’ incar cer ation and a $300 fine. The judgme nt adjudicating g uilt also specific ally included a desig nation of court costs of $240. Acc ompanying that judgme nt in the cler k’s rec ord on appea l are three pag es that purport to be a “cost bill assessment” and contain specific amounts for sever al kinds of costs. Those pag es also contain a stamp and the signa ture of a deputy district cler k and are dated “11/7/12,” which is sever al wee ks afte r the September 20, 2012 date on which the trial judge signe d and ente red the judgme nt adjudicating g uilt. II. COURT OF A P P EALS On direc t appea l, appellant complained that the judgme nt ref lected court costs that wer e not substantiated by the rec ord and asser ted that the list of court costs was n o t a p roper “cost bill” b ec au s e it was g ener ated well afte r the judgme nt and aff orded him no opportunity to o b j ec t

. Appellant ar gu ed t h at this listi ng of court costs was made up of “scr een shots” from the county ’s proprieta ry information-mana g ement sy stem and contained no details reg arding when it was cre ated

or that the trial court saw the list befor e signing the judgme nt. He contende d that this newly cre ated document was not a bill of costs as con t em p l at ed, and require d, by law and failed to fulfill dueproce ss require ments. He also pointed out that he was never g iven the opportunity to challeng e the actua l costs or their constitutionalit y beca use no bill of costs was produce d at the time of sentenc ing. Appellant asser

ted that due proce ss is thwarte d if the cler k can simply cre ate a list of court costs afte r3

the conviction. Be cause there was no evidenc e in that rec ord that the computer scre en printout was prese nted to the trial judge befor e the specific dollar amount was included in the judgme nt, the court of appea ls conclude d that there was no evidenc e in the rec ord to support the specific dollar amount i n court costs. Perez v. State , 2013 Tex. App. L EXI S 5121, No. 14-12-00893- CR (Tex. App.—Houston [14 t h Dist.] , memorandum opinion filed April 25, 2013)(not desig nated for publication). I t also held that, while the trial court did not err in or dering appellant to pa y costs, the trial court err ed in e nteringa specific dollar amount of cos t s i n the j udg ment without any rec ord support. Id

. Acc ording ly , the court of appea ls ref

ormed the trial court’s judgme nt, deleted the specific amount of costs assessed, and af firmed the judg ment as modified. Id

. III. GROUN DS F OR REVIEW We g rante d the state’s petition for discretionar y revie w on four g rounds: the court of appea ls

err ed in deleting 1) the spec ific amount of court costs on the judg ment of convic tion based upon the lack of a ce rtified bill of costs in the rec ord; 2) court costs on the written judgme nt when appellant failed to prese rve his claim for ap p el l ate revie w, the issue is not ripe for revie w, and by implicitl y overr uling th i s Court[ ’s] opini on in Manuel v . State which held that he must ra ise issues about the sufficie ncy

of the e vidence in an appe al from the or der de fer ring g uilt; 3) t he court costs on the writt en judgment when the di strict clerk ’s o ffice i ncluded an itemized list of costs in the appe llate re cord; 4) t he court cost s on the writt en judgment based upon the l ack of a certified bill of costs in the rec ord when the evidenc e was otherwise sufficie nt to sustain the assessed court c osts. IV. ARG UMENT4

The state argues t h at n o t h i n g in Texas statutes or the opinions of the Court of Criminal Appea ls require d the district cler k to attach a cer

tified bill of co s t s t o t h e judgme nt in order to support the amount or to show that the trial judge had acc ess to his own co u rt re co rds when deter mining and assessing the amount on a judgme nt. I t adds that, “eve n wer e this Court to hold that the mandatory assessment of court costs require s separ ate evidenti ar y support in the form of available documentation, this rec ord contained sufficie nt documentar y evidenc e to support the costs assessed.” The state also contends that appellant waived h i s s u ff i ci ency claim to at least $203 in court costs when he did not raise it in an appea l from the order defe rring g uilt. I t also maintains that appellant’ s claims reg arding the mandatorily assessed costs wer e not prese rved in the trial court and

wer e not ripe f

or re view on appe al bec ause no attempt to collect them had y et bee n made. Appellant asserts t h at “[ w] i t h out a cost bill, there is insufficient evidence to support court costs” and that “[t] he court costs s h o u l d be struck beca use there is no evidenc e in the rec ord to support them.” He maintains that “[t] here is no evidenc e the trial court had the cost bill befor e the costs wer e asse ssed on the judg ment[,] ” and notes that “the tra nscript from the he aringshows that the trial court n ev er ev en m entioned owing court costs.” He arg ues that “[t] he rules of appellate proce dure do not allow any objections to a particula r cost to be made in the appellate court” and sug g ests that “with no cost bill in the trial court, the only proper challeng e is throug h the sufficie ncy of the e vidence .” The state argues the first, t h i rd , an d fourth g rounds toge ther. I t asks this Court to sustain those g rounds and reve rse the judgme nt of the court of appea ls and reinstate t he trial court’s judgme nt in its entirety

“bec ause the rec ord supports the costs assessed, and the tr ial court did not

err by failing to attach a bill of costs to the judgme nt.” I t specific ally contends that “the documentar y5

evidenc e in the cler

k’s rec ord supported eac h mandatory fee and costs assessed beca use: (1 ) the itemiz ed cost bill provided sufficie nt evidenc e to support all the costs and fee s; a nd (2) even had it been insufficient the addi t i o nal documents in the Court’s file supported them.” (State’s Br ief on Discre tionary

Review at 11.) The state points to the laws reg arding court costs, which state that a convicted person has a statutory obligation to pay court co s ts. See T E X

. C O D E C R I M

. P R O C

. art. 42.15 (whe n a fine is assessed the judgme nt shall be that the defe ndant pay the amount of the fine and all costs to the state) and art. 42.16 (judg ments imposing punishments other than fines shall specify the costs ag ainst the defe ndant and order the collection of tho s e co s t s ). The state also notes that Articles 103.001 1 throug h 103.012 g overn the collection and dispositi on of costs. I t also asser ts that a defe ndant must pay the statutorily assessed costs reg ardle ss of indige nce. T EX

. G O V ’ T C O D E § 102.021 (a convicted defe ndant “sha ll pay ” the spe cified a ssociated c ourt costs). Appellant argues that a bill of costs is a prer equisite to a trial court’s authority to order that court costs be paid and that those court costs wer e not memorialized at the sentenc ing hear ing. He also asser ts, “Not only is this information necessar y –it is constituti o n al l y require d.” (Appe llant’s Br ie f on Petition for Discre tionary Review at 13.) He maintains that the due-c ourse- of-law provision of the Texas Constit ution and the due-pr ocess clause of the Fe dera l Constitution p re cl u d e t he imposit ion of court costs without providing advanc e notice of those costs and that due proce ss was not aff orded to him beca

use he was not notified of the court costs and thus was never g iven the opportunity

to contest those costs.

Unless otherw ise noted, all r eferences to “Article” a nd “Section” are to the T exas Code o f Crim inal 1 P ro cedure.6

The state’s second gr ound for r eview a sserts that the cour t of appe als err ed by

considering an unpre serve d claim that cha lleng ed the acc urac y of the amount of asse ssed costs. The state also

asser ts that the issue of t he amount of court costs assesse d was not ripe f or re view on appe al from the judgme nt without appellant making some attempt in the trial court to corr ect them. I t insists that the judgme nt’s assessment does not make the costs pay able, and there fore , appea l from that judgme n t wo u l d n o t make the issue of the amount viable. I t sug g ests that, to protest the amount assessed, appellant must there fore pursue some other vehicle that would provide the trial court with

an opportunity to corr ect any inacc urac y . The state also asser ts that appellant was require d to make any evidentiar

y challeng es to the order defe rring g uilt with a timely appea l from that order , and since he did not do so, he cannot tardily raise them for the first time in an appea l from t he judgme nt adjudicating him. I t argues that Manuel v. State , 994 S.W .2 d 6 5 8 , 6 6 2 (Tex. Crim. App. 1999) direc ts that Article 44.01(j) re fl ects a leg islative intent that “wa s not to permit two revie ws to the leg ality of a defe rre d adjudication order , namely when first imposed and ag ain upon adjudication.” (State’s B rief on D iscretionar y Review at 45.) Appellant asser

ts that Manuel does not apply and that the court of appea ls corr ectly rea soned that he did have the rig ht to appea l the sufficie ncy of the court costs under Article 42.12 § 5(b). He also sug g ests that this is espec ially true in light of the fac t that he was not g rante d the rig ht to appea l from the or der g rantingdefe rre d adjudication. V. ANALYSIS I n Johnson v. State , ___ S.W .3d ___, No. PD-0193-13 (Tex. Crim. App. delivere d Fe bruar y 26, 2014), we held that “a claim with respe ct to the basis of court costs need not be prese rved at trial to be raised for the first time on appea l,” t hat “a rec ord on appea l can be s upplemented with a bil l7

of costs,” and the fac t that most court costs are mandated by statute dispenses with the need f or an ordinary sufficie ncy revie w. Neve rtheless, we addre ss the state’s prese rvation claims and consider, in the circ umstances be fore us, whether appellant ne eded to pr eser ve er ror. The rec ord here ref

lects that the Orde r of Def err ed Adjudication was signe d and enter ed on J une 20, 2008, and included t h e as s es s ment of $203 for court costs. The state’s Motion to Adjudicate Guilt included an alleg ation that appellant v i o l at ed the terms and conditions of community supervision by failing to pay court costs. Appellant signe d a Stipul ation of Evidence that included a para g raph in which he judicially confe ssed that he had violated the terms and conditions and that the alleg ations in the state’s motion wer e true. Be fore the court, appellant answe red “Ye s” when asked if it was true that he had violated the terms and conditions. The judgme nt adjudicating g uilt reflec ts that a

ppellant was se ntence d to two y ear s’ incar cer ation, a $300 fine , and cour t costs of $240. “A timely notice of appea l is nece ssary to invoke a court of appea ls’ jurisdiction.” Olivo v. State , 918 S.W .2d 519, 522 (Tex. Crim. App. 1996). Appellant failed to file notice of appea l within thirty day s of being place d on defe rre d-adjudication community supervision, thus this appea l raising court-c ost complaints is not timely with respe ct to the court costs that wer e assessed in the Orde r of Def err ed Adjudication. I n W iley v. State , we held that a defe ndant, whose community supervision had been revoke d, forf eited his c halleng e to the court-a ppointed attorney fee s as court costs by failing to br ing such a claim in a direc t appea l from the order orig inally imposing community supervision. W iley v. State , 410 S.W .3d 313, 318 (Tex. Crim. App. 2013). We pointed out that Wil ey “could rea dily have raised this sufficie ncy claim in a direc t appea l from the initial judgme nt imposing community supervision”8

and failing to do so “constituted a proce dural defa ult under Manuel .” We noted that Manu el h ad

re cognized that “a defe ndant place d on defe rre d adjudication community supervision may raise issues relating to the orig inal plea proce eding , such as evidentiar y sufficie ncy , only in appea ls taken when de fer

red a djudication community supervision is first imposed.” Id . at 319, n.33. We also observe that appellant specific ally waived his rig ht to appea l at that time. The rec ord ref lects that, when appell an t plead g uilty and was place d on defe rre d-adjudication community supervision, he waived his rig ht to appea l. Specifica lly , appellant signe d a Waiver of Constit utional Rights, Agre ement to Stipul ate, and J udicial C onfession, which included a para g raph in which he “wa ive[d] any rig ht of appea l which [he] may have [had] ,” and the trial court acc epted the fore g oing plea ag ree ment betwee n him and the pro s ec utor. Appellant also signe d an acknow ledg ment of

rec eipt of a copy of the Trial Court’s Certification of Def endant’ s Right of Appea l, which denoted that this “ is a plea- barg ain case , and the defe ndant has NO rig ht of appea l.” These wer e all signe d

on J une 20, 2008, the same date that the Orde r of Def err ed Adjudication was signe d and enter ed. That Orde r included the challeng ed assessment of court costs of $203. Thus appellant, at that time of the orig inal order , specific ally waived his rig ht to appea l the imposit ion of those court costs. As

we held in Manuel , supra , the time to raise such a complaint via appeal i s wh en defe rre dadjudication community supervision was first imposed. “[A]n appe l l an t wi ll not be permitted to raise on appea l from the revoc ation of h i s community supervision any claim that he could have broug ht on an appea l from the orig inal imposit ion of that community supervision.” W iley , 410 S.W .3d at 319, citing Manuel , 994 S.W .2d at 661-62. Appellant’s waiver of his rig ht to appea l does not e x cuse his f

ailure to a ppeal the a ssessment of cour t costs a t the time of the orig inal imposit ion of community

supervision.9

T h e co u rt o f appea ls acknow ledg ed Manuel ’s holding, but noted that, afte r we decide d Ma n u el , an amendment to Article 42.12 § 5(b) permitted appellate revie w of the trial court’s deter mination to proce ed with an adjudication of g uilt. I t deter mined that appellant was “appe aling the judgme nt adjudicating his g uilt” rathe r than “cha lleng ing the assessment of costs in the orig inal defe rre d adjudication order [,] ” and was “cha lleng ing the ev i d ence to support the specific dollar amount listed in the judgme nt adjudicating his guilt.” Perez v. State , 2013 Tex. App. L EXI S 5121 at *4. The r ecor d does not support this conclusion. 2 C o u rt costs of $203 wer e included in the Order of Def err ed Adjudication. Thus appella n t could have appea led the imposit ion of such costs or the specific amount of those costs. Any and all complaints about the imposit ion of the court costs could and shou l d h av e b ee n made in a timely appea l of the defe rre d-adjudicati o n o rder. “F ailing to do so, we hold, constituted a proce dural defa ult under Manuel .” W

iley , 410 S.W .3d at 320. Appellant did timely appea l the $240 court costs, which were noted in the j udg ment adjudicatingg uilt and included t he $203 that had been i nitially assessed in the defe rre d-adjudication order

. Since appellant failed to challeng e the $203 assessment of costs in a tim el y appea l of that defe rre d adjudication order and thus forf eited any appellate complaint as to that sum, the instant, timely , appea l proper ly challeng es only the $37 of court costs that wer e adde d to the initial $203. Thus the court of appe als had jurisdiction to addre ss only $37 of appe llant’s challeng e to the asse ssment of $240 in court costs. VI. CONCLUSION A defe ndant must raise issues relating to the orig inal plea proce eding , including evidentiar y

“In a sing le issue on app eal, a pp ellant contends that there is ins uf ficien t evidence in the reco rd to suppor t 2 the court co sts asses sed against hi m in the judgm ent.” Perez v. Sta te , 2 01 3 T ex. App. LEXIS 5 12 1 a t * 1.10

sufficie ncy , only in a timely appea l taken when defe rre d-adjudica tion community supervision is first imposed. Manuel , 994 S.W .2d at 661-62. Court costs of $2 0 3 we re i n cluded in appellant’ s defe rre d-adjudication order , and appellant failed to appea l those costs at that time. Acc ording ly , we sustain the state’s g round 2, in part; we reve rse the judgme nt of t h e co u rt of appea ls and dismiss appellant’ s appea l with respec t to $203 of the $240 of cour t costs. The court of appeals does have jurisdiction to consider the appea l of t he remaining $37 of the assessed cou rt co s t s . I n Johnson v. State , supra , we held that “a rec ord on appea l can be supplemented with a bill of costs,” and the fac t that most court co s t s ar e mandated by statute dispen s es with the need for an ordinary sufficie ncy revie w. Be cause the court of appea ls did not have the benef

it of Johnson when it addre ssed appe l l ant’s claims challeng ing the court-c osts assessment, we dismiss the state’s g rounds one, three , and four and rema nd to the court of appea ls to rec onsider appe llant’s claims reg ardingthe assessment of court c osts in li g ht of Johnson

.

Deliver ed: Marc h 12, 2014 Publis h