Opinion issued April 4, 2013

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-11-00985-CR

———————————

ERIK DELGADO GARCIA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Case No. 1253927
2

MEMORANDUM OPINION

A jury found appellant Erik Delgado Garcia guilty of the offense of reckless 

bodily injury to a child.1

 During the punishment phase, the jury found the 

allegations in one enhancement paragraph to be true and assessed appellant’s 

punishment at 40 years in prison with a $4,000 fine. The trial court also imposed

court costs against appellant in the judgment. Presenting one issue on appeal, 

appellant contends that there is “insufficient evidence” to support the court costs 

imposed by the trial court. 

We affirm.

Background

In the judgment of conviction, the trial court ordered appellant to pay court 

costs of $275.00.2

 On appeal, appellant filed a “designation of Clerk’s Record” in 

which he included a request for “[t]he bill of costs reflecting all fees and costs 

assigned to Defendant post-conviction.” The clerk’s record did not originally 

contain a bill of costs. After the parties filed their original briefing, we ordered the 

district clerk’s office to supplement the record with a bill of costs. The district 

 1 See TEX. PENAL CODE ANN. § 22.04 (Vernon Supp. 2012).

2 The trial in this case, including the punishment phase, lasted for five days. 

Because appellant has limited his issue on appeal to one challenging court costs, 

we do not discuss the evidence offered at trial or the facts underlying the offense. 
3

clerk filed a supplemental record containing a bill of costs. The bill reflects costs 

and fees totaling $275, the same amount the trial court ordered appellant to pay.

Court Costs

In his sole issue, appellant argues that the evidence is insufficient to support 

the assessment of $275 in court costs. 

In his original brief, appellant’s sufficiency argument was based on the 

absence of a bill of costs in the clerk’s record. Appellant asserted that “because he 

has been given no notice of the items of costs assessed against him, he has had no 

opportunity to be heard on the correctness of those costs.” Appellant argued this 

rose to a violation of his right to due process under the federal constitution and a 

violation of his right to due course of law under the state constitution. See U.S.

CONST. amend. XIV; TEX. CONST. art. I, § 19. Appellant also complained that 

“there is no way to determine whether the assessed costs include attorney’s fees.” 

See Mayer v. State, 309 S.W.3d 552, 553 (Tex. Crim. App. 2010) (holding that, if a 

defendant is found to be indigent at outset of trial, some evidence must presented 

to trial court showing a change in his financial circumstances before attorney’s fees 

can be assessed against him).

3

 

 3 In its original response brief, the State asserted that appellant’s complaint is not 

ripe for appellate review. The ripeness doctrine protects against judicial interference 

until a decision has been formalized and its effects felt in a concrete way by the 

challenging parties. State ex rel. Watkins v. Creuzot, 352 S.W.3d 493, 504 (Tex. Crim. 

App. 2011). To determine whether an issue is ripe for adjudication, we evaluate both the 
4

As mentioned, since appellant filed his opening brief, we ordered the record 

supplemented with a bill of costs. The costs bill was generated and signed by the 

district clerk’s office after the trial court rendered judgment.4

 The costs bill 

itemizes the fees and costs assessed against appellant. 

 

fitness of the issues for judicial decision and the hardship to the parties of withholding 

court consideration. Id. The State asserted that the issue is not ripe because appellant has 

not been asked to pay the costs. The State pointed out that appellant is not required to 

pay the court costs until a bill of costs has been produced. See TEX. CODE CRIM. PROC.

ANN. art. 103.001 (Vernon 2010) (providing that a cost is not payable by person charged 

until a bill of costs is produced or ready to be produced). However, since the State filed 

its brief, the record has been supplemented with a bill of costs. The State also intimated

that the issue is not ripe because Government Code section 501.014(e) requires the trial 

court to issue a notification of withdrawal before funds may be withdrawn from an 

inmate account. See TEX. GOV’T CODE ANN. § 501.014(e) (Vernon 2012). But 

Government Code section 501.014(e)(4) also indicates that a withdrawal notification can 

be issued to pay “in full . . . all orders for court fees and costs.” Id. Because the amount 

of costs ordered in the judgment may serve as a basis to issue a withdrawal notification,

and a bill of costs has been produced, appellant’s challenge to the portion of the judgment 

ordering him to pay costs is ripe for appellate review. Additionally, the State cites Code 

of Criminal Procedure 103.008, which provides that a defendant has one year after the 

date of the final disposition of his case, in which costs were imposed, to file a motion 

seeking to correct any error in the costs. See TEX. CODE CRIM. PROC. ANN. art. 

103.008(a) (Vernon 2006). Unlike the State, we do not perceive the availability of 

additional or alternative remedies as negating the ripeness of appellant’s direct appellate 

challenge to costs assessed in the judgment. 

4 The document contained in the supplemental record indicates that it is from the 

Harris County Clerk’s Justice Information Management Systems, commonly referred to 

by its acronym “JIMS.” The document, entitled “JIMS Cost Bill Assessment,” itemizes

the various costs assessed in appellant’s case. The costs are listed on two pages. We 

note that Code of Criminal Procedure article 103.009(a) requires the clerk of a court to 

keep a fee record; however, there is no indication that the fee record cannot be kept 

electronically. See TEX. CODE CRIM. PROC. ANN. art. 103.009(a) (Vernon 2006). Article 

103.009(b) also provides that any person may inspect such fee record. Id. art. 

103.009(b); see, e.g., Gonzales v. State, 07–10–00383–CR, 2012 WL 3553004, at *2 

(Tex. App.—Amarillo Aug. 17, 2012, pet. ref’d) (mem. op., not designated for 

publication) (affirming judgment assessing court costs in case in which appellant had 
5

A defendant convicted of a felony offense must pay certain statutorily 

mandated costs and fees, which vary depending on the type of offense, the 

underlying facts, and procedural history of the case. See Owen v. State, 352 

S.W.3d 542, 546 n.5 (Tex. App.—Amarillo 2011, no pet.) (providing an extensive 

list of Texas statutes requiring convicted persons to pay costs and fees). The 

following are the costs and fees assessed against appellant as identified in the bill 

of costs in the supplemental clerk’s record, along with the corresponding statutory 

provision mandating their assessment:

• $40 “clerk’s fee” (See id. art. 102.005(a) (“A defendant convicted of 

an offense in a county court, a county court at law, or a district court 

shall pay for the services of the clerk of the court a fee of $40.”)).

• $5 “security fee” (See id. art. 102.017(a) (“A defendant convicted of a 

felony offense in a district court shall pay a $5 security fee as a cost of 

court.”)).

• $4 “jury reimbursement fee” (See id. art. 102.0045(a) (“A person 

convicted of any offense . . . shall pay as a court cost, in addition to all 

other costs, a fee of $4 to be used to reimburse counties for the cost of 

juror services as provided by Section 61.0015, Government Code.”)).

• $25 “records preservation fee” (See id. art. 102.005(f) (“A defendant 

convicted of an offense in a . . . district court shall pay a fee of $25 for 

records management and preservation services performed by the 

county as required by Chapter 203, Local Government Code.”)).

• $2 “support of [indigent] defense” (See TEX. LOC. GOV’T CODE ANN.

§ 133.107(a) (Vernon Supp. 2012) (“A person convicted of any 

 

challenged costs assessment on ground that costs were improper because the record 

contained no indication how costs were determined; court relied, in part, on section 

103.009 provision permitting inspection of fee record).
6

offense . . . shall pay as a court cost, in addition to other costs, a fee of 

$2 to be used to fund indigent defense representation through the fair 

defense account established under Section 79.031, Government 

Code.”)). 

• $6 “support judiciary fee[]” (See id. § 133.105(a) (Vernon 2008) (“A 

person convicted of any offense . . . shall pay as a court cost, in 

addition to all other costs, a fee of $6 to be used for court-related 

purposes for the support of the judiciary.”)).

• $133 “consolidate court cost” (See id. § 133.102(a)(1) (Vernon Supp. 

2012) (requiring that a person convicted of an offense shall pay as a 

court cost, in addition to all other costs, “consolidated court fees” in 

the amount of $133 on conviction of a felony).

The bill of costs also lists a sheriff’s fee of $60. The record supports 

assessment of each of the costs constituting the sheriff’s fee, as follows:

• $5 “commitment” and $5 “release” (See id. art. 102.011(a)(6)

(“A defendant convicted of a felony or a misdemeanor shall pay 

the following fees for services performed in the case by a peace 

officer . . . $5 for commitment or release . . . .”)); and

• $5 “arrest without warrant or capias” (See id. art. 102.011(a)(6)

(“A defendant convicted of a felony or a misdemeanor shall pay 

the following fees for services performed in the case by a peace 

officer . . . $5 for commitment or release . . . .”)).5

 5

 In his Second Objection to the supplemental record, appellant contends that “the 

Code of Criminal Procedure mandates that there be a fee record for any Sheriff’s 

costs.” See TEX. CODE CRIM. PROC. ANN. art. 103.009 (“Each clerk of a court, 

county judge, justice of the peace, sheriff, constable, and marshal shall keep a fee 

record.”). We addressed this argument on rehearing in Cardenas. There, as in this 

case, appellant “presents no authority that an article 103.009 fee record must be 

filed with a trial court to support the inclusion of a sheriff’s fees among the costs 

of court chargeable to a defendant convicted of a crime.” Cardenas v. State, 01-

11-01123-CR, 2013 WL 1164365, at *6 n.10 (Tex. App.—Houston [1st Dist.] 

March 21, 2013, no pet. h.). In addition, as in Cardenas, appellant “also presents 
7

• 50 “serving capias” (TEX. CODE CRIM. PROC. ANN. art. 

102.011(a)(2) (Vernon Supp. 2012) (“A defendant convicted of 

a felony or a misdemeanor shall pay the following fees for 

services performed in the case by a peace officer . . . $50 for 

executing or processing an issued arrest warrant, capias, or 

capias pro fine. . . .”)).

These fees and costs total $275, the amount ordered in the judgment. The 

bill of costs does not list attorney’s fees as an assessed cost. 

After the district clerk filed the supplemental record containing the bill of 

costs, we permitted the parties to file additional briefing. In his supplemental brief, 

appellant neither asserts that the costs assessed against him are not authorized by 

statute nor does he dispute that Texas law requires that he pay them. He also does 

not contend that the assessed costs are inapplicable to the underlying facts and 

circumstances of this case. Instead, appellant indicates that it was not appropriate 

for a bill of costs to be “created” after the trial court had rendered judgment. 

Code of Criminal Procedure article 103.006 provides that “[i]f 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 transferred or appealed.” TEX. CODE PROC. ANN. art. 

103.006 (Vernon 2006). Pursuant to the language of article 103.006, a bill of costs 

shall be certified, signed, and sent on the appeal of a criminal action, which 

 

no argument that the events described in the appellate record did not actually 

occur, or that the corresponding costs were not legally authorized or were 

inaccurately assessed.” Id. 
8

necessarily occurs after rendition of a final judgment. Thus, the statute appears to 

contemplate the creation of a bill of costs after rendition of the judgment; that is, at 

the time the judgment is appealed. See Cardenas v. State, 01-11-01123-CR, 2013 

WL 1164365, at *4 (Tex. App.—Houston [1st Dist.] March 21, 2013, no pet. h.).

Appellant cites Johnson v. State for the proposition that a bill of costs must 

be created before rendition of judgment. 389 S.W.3d 513, 515 n.1 (Tex. App.—

Houston [14th Dist.] 2012, pet. filed). In Cardenas, we distinguished Johnson, 

noting that the Johnson court had not addressed article 103.006 or Rules of 

Appellate Procedure 34.5 and 44.3, which permit supplementation of the record. 

Cardenas, 2013 WL 1164365, at *5.

6

 

In addition, appellant contends that “the newly created bill of costs . . . 

violates” not only the holding in Johnson but also the following unpublished 

opinions: (1) Tafolla v. State, No. 06–12–00122–CR, 2012 WL 6632767 (Tex.

App.—Texarkana Dec. 20, 2012, no pet.); (2) Solomon v. State, No. 04–12–

00239–CR, 2012 WL 6604497 (Tex. App.—San Antonio Dec. 19, 2012, no. pet.); 

and (3) Cuba v. State, No. 06–12–00106–CR, 2012 WL 6152965 (Tex. App.—

 6 We also held in Cardenas that it is appropriate for an appellate court to order a 

supplemental record containing a bill of costs. We noted that “the rules of appellate 

procedure provide that ‘[a] court of appeals must not affirm or reverse a judgment or 

dismiss an appeal for formal defects or irregularities in appellate procedure without 

allowing a reasonable time to correct or amend the defects or irregularities.’” 2013 WL 

1164365, at *4 (citing TEX. R. APP. P. 44.3.). We further explained that we are 

specifically authorized to direct the trial court clerk to supplement the record with any 

relevant omitted item. Id. (citing TEX. R. APP. P. 34.5(c)(1), (3)).
9

Texarkana Dec 11, 2012, no pet.). However, as we explained in Cardenas, 

“[b]ecause we ordered the supplementation of the appellate record to request a bill 

of costs, the courts in Johnson, Tafolla, and Solomon confronted different 

procedural circumstances, and their reasoning is inapplicable to the circumstances 

before us.” Cardenas, 2013 WL 1164365, at *7. The same can be said for the 

court in Cuba, 2012 WL 6152965, at *1. “To the extent any party to those cases 

may have requested, or those courts may have considered, the justifications for 

ordering a supplemental record as explained in this opinion, none of those courts 

explained why supplementation is not authorized by article 103.006 and appellate 

rules 34.5 and 44.3, as we believe it is.” Cardenas, 2013 WL 1164365, at *7.

Appellant also contends that “[d]ue process is thwarted if the clerk can 

create a costs bill after the conviction and supplement the record with it.” 

Appellant relies on the Harrell v. State in making this argument. 286 S.W.3d 315 

(Tex. 2009). In Cardenas, we explained, “Harrell is procedurally distinguishable 

because it was a civil proceeding filed by a prison inmate who challenged the 

withdrawal of funds from his trust account to pay court costs, but did not challenge 

the amount of costs assessed.” Cardenas, 2013 WL 1164365, at *5 (citing Harrell, 

286 S.W.3d at 316–17). We acknowledged that an appellant in a direct criminal 

appeal, challenging the assessment of court costs, may raise the issue on appeal 

even though he did not make the objection in the trial court. Id. For this reason, 
10

we stated that “Cardenas was not procedurally prejudiced by his alleged inability 

to raise his objections in the trial court.” Id. 

We also noted that there is a separate procedural avenue to seek correction 

of any error in the assessed costs. Id. (citing TEX. CODE CRIM. PROC. ANN. art.

103.008(a) (“On the filing of a motion by a defendant not later than one year after 

the date of the final disposition of a case in which costs were imposed, the court in 

which the case is pending or was last pending shall correct any error in the 

costs.”)). We explained that “Harrell did not address the article 103.008 procedure 

for correcting court costs. And in any case, that opinion does not purport to 

specify the only means by which a criminal defendant can contest an assessment of 

court costs.” Id. In Cardenas, we held that an appellant’s ability to contest the 

assessment of costs for the first time on appeal, and the availability of the article 

103.008 review process, provide an appellant with adequate due process,

irrespective of his alleged inability to object in the trial court to the specific fees 

identified in the later-generated bill of costs. See id. 

Based on the reasoning in Cardenas, we hold that appellant has not been 

denied due process with respect to his ability to challenge the basis of the costs 

assessed in the judgment. See id. The supplemental record identifies the basis for 

the court costs, totaling $275, assessed in the judgment. The fees listed in the bill 
11

of costs are statutorily mandated as discussed supra. Appellant does not contend 

that any of the fees are not applicable to the facts and circumstances of this case.7

 

We overrule appellant’s sole issue. 

Conclusion

We affirm the judgment of the trial court. 

Laura Carter Higley

Justice 

Panel consists of Justices Jennings, Higley, and Sharp.

Do not publish. TEX. R. APP. P. 47.2(b).

 7 In his supplemental brief, appellant asserts that “one objection [appellant] could 

have offered if he had been privy to the court costs bill when assessed was 

constitutionality of the $133 charge for the ‘consolidate court cost.’” He asserts “such a 

constitutional challenge cannot be raised on appeal.” As mentioned, the $133 fee is 

mandated by Local Government Code section 133.102(a)(1). That section is entitled 

“Consolidated Fees on Conviction” and provides, “A person convicted of an offense shall 

pay as a court cost, in addition to all other costs . . . $133 on conviction of a felony. See

TEX. LOC. GOV’T CODE ANN. § 133.102(a)(1) (Vernon Supp. 2012). Appellant was 

convicted of a felony and is thus required by statute to pay the $133 fee. The trial court’s 

authority to assess the $133 fee as part of the court costs in the judgment is section 

133.102(a)(1), mandating that appellant, a convicted felon, pay the fee, irrespective of 

whether the trial court had the costs bill in front of it when it rendered judgment. In any 

event, appellant has not briefed his constitutionality challenge to the $133 fee with 

sufficient specificity for us to evaluate either the preservation or the merits aspects of 

such challenge. See TEX. R. CIV. P. 38.1(i).