NO. 12-13-00052-CR

 

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JANICE LACK, § APPEAL FROM THE 114TH

APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,

APPELLEE § SMITH COUNTY, TEXAS

 

MEMORANDUM OPINION

Janice Lack appeals her conviction for the offense of interference with child custody. She 

raises one issue on appeal relating to the imposition of court costs. We modify and affirm as 

modified.

BACKGROUND

Appellant was charged by indictment with the state jail felony offense of interference with 

child custody.1 On June 8, 2012, Appellant pleaded guilty to the offense. The trial court deferred a 

finding of guilt and placed Appellant on deferred adjudication community supervision for a period of 

five years. 

The State filed an application to proceed to final adjudication, which was amended on January 

18, 2013. Appellant pleaded “true” to seven of the State’s nine allegations. The trial court found 

seven of the nine allegations to be “true,” revoked Appellant’s community supervision, and 

adjudicated Appellant guilty of the offense of interference with child custody. The trial court 

assessed punishment at two years of confinement without a fine and ordered court costs to be paid. 

 

1

See TEX. PENAL CODE ANN. § 25.03 (West Supp. 2012).
2

While on community supervision, Appellant paid towards the balance of the court costs 

imposed in the trial court’s order of deferred adjudication. The judgment adjudicating guilt assessed 

$284.00 in court costs. The bill of costs shows that the original amount of court costs is $284.00, but 

that the remaining balance was actually $164.00. 

SUFFICIENCY OF THE EVIDENCE SUPPORTING COURT COSTS

In her sole issue, Appellant argues that the trial court erred by imposing court costs that were 

not supported by the bill of costs and by ordering the court costs to be withdrawn from her inmate 

trust account. 

Standard of Review and Applicable Law

A challenge to the sufficiency of the evidence supporting court costs is reviewable on direct 

appeal in a criminal case. See Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011). 

We measure sufficiency by reviewing the record in the light most favorable to the award. Mayer v. 

State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010); Cardenas v. State, No. 01-11-01123-CR, 2013 

WL 1164365, at *6 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013, no pet.) (not yet released for 

publication). Requiring a convicted defendant to pay court costs does not alter the range of 

punishment, is authorized by statute, and is generally not conditioned on a defendant’s ability to pay. 

See TEX. CODE CRIM. PROC. ANN. art. 42.16 (West 2006); Armstrong, 340 S.W.3d at 767; see also 

Johnson v. State, No. 12-12-00289-CR, 2013 WL 3054994, at *3 (Tex. App.—Tyler June 19, 2013, 

no pet.) (not yet released for publication).

Discussion

The judgment adjudicating guilt assessing $284.00 in court costs also includes a document 

identified as “Attachment A Order to Withdraw Funds,” which states that Appellant has incurred 

“[c]ourt costs, fees and/or fines and/or restitution” in the amount of $284.00. 

Appellant contends, and the State concedes, that the trial court’s judgment and withholding 

order should be modified to reflect court costs in the amount of $164.00. We have reviewed the 

items listed in the bill of costs, and all listed costs and fees are authorized by statute. Because some 

costs have already been paid, the evidence is insufficient to support the trial court’s assessment of 

$284.00 in court costs as reflected in its judgment adjudicating guilt and withholding order. See, 

e.g., Muller v. State, No. 12-12-00269-CR, 2013 WL 3243522, at *2-3 (Tex. App.—Tyler June 25, 
3

2013, no pet.) (mem. op., not designated for publication) (modifying judgment to reflect payment of 

properly assessed costs); Johns v. State, Nos. 07-10-0303-CR, 07-10-0304-CR, 2011 WL 832837, at 

*2 (Tex. App.—Amarillo Mar. 10, 2011, pet. ref’d) (mem. op., not designated publication) 

(modifying judgment to reflect that payment of properly assessed costs were paid in full). The 

evidence is sufficient, however, to support the imposition of $164.00 in court costs. Accordingly, 

we sustain Appellant’s sole issue on appeal. 

DISPOSITION

Having sustained Appellant’s sole issue, we modify the trial court’s judgment to reflect that 

the amount of court costs is $164.00. See TEX. R. APP. P. 43.2(b). We also modify Attachment A to 

delete the assessment of $284.00 and to state that the total amount of “court costs, fees and/or fines 

and/or restitution” is $164.00. See Ballinger v. State, No. 12-12-00280-CR, 2013 WL 3054935, at 

*3 (Tex. App.—Tyler June 19, 2013, no pet.) (not yet released for publication). We affirm the 

judgment of the trial court as modified. See TEX. R. APP. P. 43.2(b).

SAM GRIFFITH

 Justice

Opinion delivered July 31, 2013.

Panel consisted of Worthen, C. J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)
4

COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JULY 31, 2013

NO. 12-13-00052-CR

JANICE LACK,

Appellant

V.

THE STATE OF TEXAS,

Appellee

_____________________________________________________________________________

 Appeal from the 114th Judicial District Court

 of Smith County, Texas. (Tr.Ct.No.114-0453-12)

_____________________________________________________________________________

THIS 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 judgment of the

trial court below should be modified and, as modified, affirmed.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment 

of the trial court below be modified to reflect that the amount of court costs is $164.00. We also 

modify Attachment A to delete the assessment of $284.00 and to state that the total amount of 

“court costs, fees and/or fines and/or restitution” is $164.00; and as modified, the judgment of the 

trial court is affirmed; and that this decision be certified to the trial court below for observance.

Sam Griffith, Justice.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.