COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

JOSE L. ALDANA, Appellant,

v. THE STATE OF TEXAS,

Appellee. §

§ § § § § No. 08

- 1 3

- 00243

- CR

Appeal from 396t h District Court of Tarrant County, Texas (TC # 1333327R )

O P I N I O N This appeal arises out of Appellant’s conviction on three counts of indecency with a child. Because h is only issues for review pertain to the monetary fine which was assessed , and the Bill of Costs, we limit our discussion of the facts to those discrete issues. FACTUAL SUMMARY Appellant was charged with two counts of aggravated sexual assault of a child (Counts
O ne and T wo of the indictment) and three counts of indecency with a child (Counts T hree, F our , and F ive)

. He was acquitted on the two aggravated sexual assa u lt counts, but convicted on all three indecency counts (Counts Three, Four , and F ive)

. The jury assessed a sixteen

- year
sentence and a $3,000 fine on each of the inde cen c y count s . The j udgment s of c onviction for
C ounts Three, F our, and F ive require the sentences to run concurrently

. The j udgment for Count
T hree assesses a $3,000 fine and taxes an itemized Bill of Cost s totaling $ 654 , making the total2

amount due $3,654. An o rder to withdraw f unds , which is expressly incorporated into the j udgmen t , directs the Texas Department of Criminal Justice to withdraw on a percentage formula basis, $3,654 from Appellant’s account until the total sum i s paid. The j udgment s for Counts
F our and F ive also assess the $3,000 fine, but do not assess any court costs

. T he j udgments of

c onviction for Counts Four and F ive also include an o rder to w ithdraw f unds for the respective $3,000 fines attributed to each count. Appellant bring s t hree issues for review

. In Issue One, he contends that we should reform two of th e j udgment s to delete the $3,000 fine because when the jail sentences run concurrently, the fines must also run concurrently . In Issue Two, Appellant c omplain s that the
B ill of C ost s is defective. Finally, in Issue Three, he argues that the Bill of Cost s should be reformed to delete the requirement that court costs must be paid as a condition of parole

. DUPLICATIVE FINES Fines which are part of concurrent sentences should also “ run ” concurrently. State v. Crook , 248 S.W.3d 172 , 174 (Tex.Crim.App. 2008). The holding in Crook is based on T EX
. P ENAL C ODE A NN . § 3.03(a) (West Supp. 2014 ) , which in relevant part provides that “sentences shall run concurrently” when “the accused is found guilty of more than one offense arising out of
the same criminal episode prosecuted in a single criminal action.” Id

. The sentences for certain crimes, such as Appellant was convicted of here, can run either concurrently or consecutively

. Id

. at § 3.03(b)(2). The trial judge here ordered the sentence to run concurre ntly , and we accept the State’s concession that the fines should similarly run concurrently, in the sense that if Appellant pays one fine , he pays them all.
T he State suggests tha t there is no proof th at th e Texas Department of Corrections will treat the three fine s cumulatively, no more so than it would treat his sentence cumulatively. It3

furt her responds that we should not modify the o rder to w ithdraw f unds because it is a civil matter. Finally , the State alleges that any ambiguity in the j udgment s of c onviction should have been raised in the trial court. There is perhaps some ambiguity in the judgments with regard to the fines. The court
costs are included in only one judgment , but the fine s appear in all three, even though both the fine s and court costs are intended to be t reated the same (i.e. taxed concurrently)

. And as the Texas Court of Criminal Court of Appeals alluded to in Crook , it is natural to say that a sentence runs concurrently, because of the temporal element of a prison sentence. Id . at 175. But paying a fine concurrently is perhaps not as intuitive a concept

. In an ideal world, the clerks and functionaries with the Texas Department of Corrections would understand the import of State v. Crook

. But as a jurist once noted, “it is al ways probable that something improbable will happen.” Warren v. Purtell , 63 Ga. 428, 430 (1879). Accordingly, we reform the j udgment s of

c onvic tion for Counts Four and Five to delete the $3,000 fine reflected in each

. T EX .R.A PP .P. 43.2(b) (“The court of appeals may:

. . . (b) modify the trial court’s judgment and affirm it as modified.”). The $3 ,0 00 fine for Count Three remains in place, and Appellant asserts no other ground to with regard to that Count.
We generally agree with the State that o rders to w ithdraw f unds are essentially civil matter s falling outside the scope of our jurisdiction in a criminal appeal. See Lewis v. State , No. 05

- 12

- 00844

- CR , 2014 WL 31690 at *7 (Tex.App.

-- Dallas Jan. 6 2014, pet. ref’d)(mem. op. not designated for publicatio n) ( “ The withdrawal order is not a criminal matter; it stems from a civil proceeding that is separate and independent from the judgment that assessed appellant's conviction and sentence. ” ) , citing Harrell v. State , 286 S.W.3d 315, 317

- 19 (Tex. 2009) and In re John son, 280 S.W.3d 866, 873

- 74 (Tex.Crim.App. 2008)

. The o rder to w ithdraw f unds in4

Counts Four and Five, however, are expressly incorporated into the j udgment s of c onviction a nd became part of it. Having reformed the j udgment s of c onvictions in Four and Fi ve to delete the $3 , 000 fine, the o rder s to w ithdraw f unds are necessarily mooted. CHALLENGE TO THE BILL OF COST “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.” T EX .C ODE C RIM
. P ROC . art. 103.001 (West 2 006 )

. A cost bill is not essential to tax court costs against a criminal defendant, but it is favored and preferred. Johnson v. State , 423 S.W.3d 385 (Tex.Crim.App. 2014) ( holding there is no requirement for challenging costs with the trial court)

. Appellan t here claims that the B ill of Cost s is defective because the itemized charges are identified only by shorthand abbreviations which are undecipherable (i.e. “DC Rec Pre&Auto,” “PO Commit/Rel,” “Jud Support

- CRM,” “CCC

- Felony”). He concedes that the Fort W orth Court of Appeals has heard and rejected this same complaint. 1 Lawrence v. State , 420 S.W.3d 329 (Tex.App.

-- Fort Worth, 2014 , pet. ref’d ) ; Cranfill v. State , No. 02

- 13

- 00567

- CR, 2014 WL 4946979 *1 (Tex.App.

-- Fort Worth, Oct. 2, 2014, no pet.)(mem. op. , not designated for publication)(noting abbrev iations in Bill of Cost correlated to statutorily imposed fees and charges). We further reject Appellant’s claim that the abbreviations deny him due process for
lack of fair notice. As noted in Johnson v. State , the mandatory costs are fixed by published
statutes which giv e criminal defendants constructive notice of their provisions. 423 S.W.3d at 389. Accordingly, we overrule Issue Two.

1 In this transferred appeal, we are obliged to follow the precedents of the Fort Worth Court of Appeals. See T EX .R.A PP .P . 41.3

.5

In Issue Three, Appellant co mplains that the Bill of Cost s erroneously requires that any unpaid portion must be paid a s a condition of parole ( “Any amounts reflected above that are unpaid at the time of parole shall be paid as a condition of parole

. ”)

. Setting conditions of parole is a power reserved to the executive branch, rather than the judiciary. Ceballos v. State , 246 S.W.3d 369, 373 (Tex.App.

-- Austin 2008, pet ref’d). The judiciary can only make recommendations regarding conditions of parole. Id

. The State concedes this error and requests that we reform the Bill of Costs to remove that condition. See Bray v. State , 179 S.W.3d 725, 728 (Tex.App.

-- Fort Worth 2005, no pet.) (noting authority to reform judgment which improperly required payment of attorney’s fees as condition of obtaining parol)

. We therefore modify the j udgment of c onviction for Counts Four and Five to delete the $3,000 fine in each of those judgment s. We grant relief under Issue Three to the extent that we reform t he j udgment of c onviction for Count Three to delete from the Bill of Cost the following statement: “ Any amounts reflected above that are unpaid at the time of parole shall be paid as a condition of parole

. ” We affirm the judgments as modified.
May 14, 2 015 ANN CRAWFORD McCLURE, Chief Justice Before McClure, C.J., Rodriguez, and Hughes, JJ. (Do Not Publish)