## NO. 12

- 1 2

- 00 388

- C R

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CAMERON FLOYD WHITE , § APPEAL FROM THE 7 TH APPELLANT

V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION Cameron Floyd White appeals his conviction for the offense of burglary of a building. In two issues, Appellant challenges the sufficiency of the evidence to support the trial court’s assessment of
court costs. We modi fy and affirm as modified.

B ACKGROUND In 2011, Appellant pleaded guilty to the offense of burglary of a building, with an agreement as to punishment. The trial court accepted Appellant’s plea, deferred further proceedings without entering an adjudication of guilt, and ordered that Appellant be placed on deferred adjudication community supervision for four years. In 2012, the State filed a motion to proceed to final adjudication, alleging that Appellant violated the terms of his community supervision in m any respects. Appellant admitted several violations, and consequently, the trial court found the allegations to be true, found him guilty of the underlying offense, and assessed punishment at twelve months of confinement in a state jail facility. In the j udgment of conviction, the trial court ordered the payment of $584.00 in court costs. The district clerk initially included an incorrect bill of costs in the record that did not match the amount of costs ordered in the trial court’s written judgment. How ever, the2

district clerk later supplemented the record to include a certified bill of costs matching the amount of costs ordered as part of the judgment

.

C OURT C OSTS In two issues, Appellant challenges the trial court’s order to withdraw funds from his inmate trust account because there was no bill of costs in the record. Appellant also challenges the court costs assessed in the judgment adjudicating guilt. Because t he withholding order is contained in the judgment as an attachment, we construe Appellant’s issues as a sufficiency challenge to the trial
court’s assessment of costs.
Standard of Review A challenge to the sufficiency of the evidence supporting court costs is reviewable on direct appeal in a criminal case. Armstrong v. State , 340 S.W.3d 759, 767 (Tex. Crim. App. 2011). We measure sufficiency by reviewing the record in the light most favo rable to the award. Mayer v.
State , 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Johnson v. State , No. 12

- 12

- 00289

- CR, 2013 WL 3054994, at *2 (Tex. App.

— Tyler June 19, 2013, no pet.) (not yet released for publication). Applicable Law A judgment shall “a djudge the costs against the defendant, and order collection thereof.

. . .”
See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 42.16 (West 2006). If a criminal action is appealed, “an officer of the court shall certify and sign a bill of costs stating the costs that h ave accrued and send the bill of costs to the court to which the action or proceeding is transferred or appealed.” Id. art. 103.006 (West 2006). Requiring a convicted defendant to pay court costs does not alter the range of punishment and is authorized b y statute. See id

. art. 103.001; Weir v. State , 278 S.W.3d 364, 367 (Tex. Crim. App. 2009). The clerk’s record may be supplemented to add the bill of costs. See T EX

. R. A PP

. P. 34.5( c); T EX

. C ODE C RIM

. P ROC

. A NN

. art. 103.006; Johnson
, 2013 WL 3054994 , a t *1

- 2. In certain circumstances, a trial court has the authority to assess attorney’s fees against a
criminal defendant who received court

- appointed counsel. See T EX

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. A NN

. art. 26.05(g) (West Supp. 2012). But once a criminal defendant has been determined to be indigent, he “is presumed to remain indigent for the remainder of the proceedings unless a material change in his financial circumstances occurs.” Id. art. 26.04(p) (West Supp. 2012). If the record does not show that the defendant’s financial circumstances materially changed after the previous determination that he was indigent, the evidence will be insufficient to support the imposition of attorney’s fees. See3

Johnson
, 2013 WL 3054994 , at *3 (citi ng Mayer , 309 S.W.3d at 553).
Discussion Here, the judgment of conviction reflects that the trial court assessed $584.00 as court costs. The judgment of conviction also includes a document identified as “Attachment A Order to Withdraw
Funds.” The attach ment states that Appellant has incurred “[c]ourt costs, fees and/or fines and/or restitution” in the amount of $584.00. In his brief, Appellant argues that his right to due process was violated when the trial court
ordered the withdrawal of funds from hi s inmate account without a bill of costs because he had no ability to know or challenge the legal basis for the costs assessed against him. Because we conclude that supplementation of the record with the bill of costs is appropriate, this argument is moot

. See Ballinger v. State , No. 12

- 12

- 00280

- CR, 2013 WL 3054935, at *2 n.4 (Tex. App.

— Tyler June 19, 2013, no. pet.) (not yet released for publication). Appellant next contends that portions of the costs assessed are unsupported by the evidence.
We have ve rified that each fee listed in the bill of costs is authorized by statute. 1 Appellant is required to pay all of these costs, except the attorney’s fees, regardless of his indigence. See T EX

. C ODE C RIM

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. A NN

. arts. 26.05(g), 42.16; see also Johnson v . State , No. 12

- 12

- 00263

- CR, 2013 WL 2286077, at *2 (Tex. App.

— Tyler May 22, 2013, no pet. h.) (mem. op., not designated for publication) (“[T]he legislature has not preconditioned the collection of court costs or fines on an inmate’s ability to pay.”). T herefore, the evidence is sufficient to support the trial court’s assessment of $284.00 in court costs against Appellant. However, the record shows that the trial court found Appellant to be indigent, and there is no evidence showing that Appellant’s fina ncial circumstances materially changed after the trial court determined that he was indigent. See T EX

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. A NN

. art. 26.04(p). Consequently, the evidence is insufficient to support the imposition of $300.00 in attorney’s fees as court costs. See id. art. 26.04(p), 26.05(g); see also Johnson
, 2013 WL 3054994, at *4.

1 The bill of costs lists attorney’s fees, pretrial fee, jury service fee, clerk’s fee, records management, records management and preservation fee

— DC, warrant fee, bond fee, arrest fee (commit and release), courthouse security, consolidated court fees, judi ciary fund county, judiciary fund state, and indigent defense court cost. All of these fees are authorized by statute. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 26.05(g) ; T EX

. C ODE C RIM

. P ROC

. A NN

. art

. 102.0045( a) (West Supp. 2012); T EX

. C ODE C RIM

. P ROC

. A NN

. art. 102.005 (a), (f) (West 2006); T EX

. C ODE C RIM

. P ROC

. A NN

. art. 102.011(a)(2), (5), (6) (West Supp. 2012); T EX

. C ODE C RIM

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. A NN

. art. 102.017(a) (West Supp. 2012); T EX

. L OCAL G OV ’ T C ODE A NN

. § 133.102(a)(1) (West Supp. 2012); T EX

. L OCAL G OV ’ T C ODE A NN

. § 133.105(a), (b) (West 2008); T EX

. L OCAL G OV ’ T C ODE A NN

. § 133.107(a) (West Supp. 2012).4

We sustain Appellant’s first and second issues in part.

D ISPOSITION Having sustained Appellant’s first and second issues in part, we modify the trial court’s judgment to reflect that the amount of court costs is $284.00. See T EX

. R. A PP

. P. 43.2( b). We also modify Attachment A to delete the assessment of $300.00 in attor ney’s fees and to state that the total amount of “court costs, fees and/or fines and/or restitution” is $284.00. See, e.g. , Reyes v. State , 324 S.W.3d 865, 868 (Tex. App.

— Amarillo 2010, no pet.). We affirm the judgment of the trial court as modified

. Se e T EX

. R A PP

. P. 43.2 (b).



### B RIAN 

### H OYLE Justice

Opinion delivered July 31 , 2013. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)5 

## COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS



## JUDGMENT

JULY 31 , 2013



### NO. 12

- 12

- 00388

- CR

CAMERON FLOYD WHITE,

Appellant V. THE STATE OF TEXAS, Appellee

_____________________________________________________________________________ Appeal from the 7 th Judicial District Court of Smith County, Texas. (Tr.Ct.No.007

- 1557

- 10)

_____________________________________________________________________________

T HIS CAUSE came on to be heard on the appellate record and the briefs filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s judgment below should be modified and, as modified, affirmed

.

It is therefore ORDERED, ADJUDGED and DECREED that the trial court’s judgment below be modified to reflect that the amount of court costs is $284 .00; w e also modify Attachment A to delete the assessment of $300.00 in attorney’s fees and to state that the total amount of “court co sts, fees and/or fines and/or restitution” is $284.00 ; and as modified , the trial court’s judgment is affirmed ; and that this decision be certified to the trial court below for observance. Brian Hoyle , Justice. Panel consisted of Worthen, C .J., Griffith, J., and Hoyle, J.