IN THE

COURT OF CRIMINAL APPEALS

JOSE L. ALDANA, § 

APPELLANT § 

 § 

V. § No. PD-0725-15

 § 

THE STATE OF TEXAS, § 

APPELLEE § 

STATE’S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION 

OF THE COURT OF APPEALS FOR THE EIGHTH COURT OF APPEALS 

DISTRICT OF TEXAS IN CAUSE NUMBER 08-13-00243-CR, MODIFYING THE 

JUDGMENT OF THE TRIAL COURT IN CAUSE NUMBER 1333327R IN THE 

396TH JUDICIAL DISTRICT COURT OF TARRANT COUNTY, TEXAS; THE 

HONORABLE GEORGE GALLAGHER, PRESIDING.

§ § §

STATE’S PETITION FOR REVIEW

§ § §

 SHAREN WILSON

Criminal District Attorney

 Tarrant County, Texas

DEBRA WINDSOR, Assistant

Criminal District Attorney,

 Chief, Post-Conviction

 JAMES GIBSON, Assistant

 Criminal District Attorney

 State Bar No. 00787533

 Tim Curry Criminal Justice Center

401 W. Belknap

 Fort Worth, Texas 76196-0201

(817) 884-1687 

 FAX (817) 884-1672

 CCAAppellateAlerts@TarrantCountytx.gov

PD-0725-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/15/2015 3:06:30 PM

Accepted 7/17/2015 1:53:37 PM

ABEL ACOSTA

CLERK
IDENTITY OF THE PARTIES AND COUNSEL

The trial judge was Hon. George Gallagher, presiding judge of the 396th

Judicial District Court of Tarrant County, Texas.

The State of Texas, represented by Sharen Wilson, Tarrant County Criminal 

District Attorney, is a party to this litigation. At trial, the State was represented by

William Vassar and Heather Davenport, Assistant Criminal District Attorneys. On 

appeal, the State is represented by James Gibson, Assistant Criminal District 

Attorney, and Debra Windsor, Assistant Criminal District Attorney. The address of 

these attorneys is Office of the Criminal District Attorney of Tarrant County, 401 

W. Belknap, Fort Worth, Texas 76196-0201. 

Appellant, Defendant below, is Jose Aldana. Appellant was represented at 

trial by Hon. Al Lazarus, 115 W. Second St., Suite 202, Fort Worth, Texas 76102,

and on appeal by Hon. Leigh Davis, 1901 Central Dr., Suite 708 LB 57, Bedford, 

Texas 76021. 

ii
SUBJECT INDEX

IDENTITY OF THE JUDGE, PARTIES, AND COUNSEL................................... ii

SUBJECT INDEX ................................................................................................... iii

INDEX OF AUTHORITIES......................................................................................v

STATEMENT REGARDING ORAL ARGUMENT ...............................................1

STATEMENT OF THE CASE..................................................................................2

PROCEDURAL HISTORY AND COURT OF APPEALS’ OPINION...................3

QUESTIONS FOR REVIEW....................................................................................4

FIRST QUESTION FOR REVIEW

Should a defendant be required to object in the trial court that concurrent 

fines notated on three judgments are improper and should be deleted from 

two of them?

SECOND QUESTION FOR REVIEW

Is reformation of the judgments to delete fines an appropriate remedy when 

the judgments, on their face, contain no errors, the fines are properly 

notated, and the written judgments do not differ from the trial court’s oral 

pronouncement of sentence?

THIRD QUESTION FOR REVIEW

Did the Court of Appeals’ opinion amount to an improper “backdoor” 

assessment of a civil law matter for which it had no jurisdiction?

iii
STATEMENT OF FACTS ........................................................................................5

DISCUSSION ............................................................................................................6

 I. The Court of Appeals’ opinion......................................................................6

 II. Appellant should have objected to the fines .................................................7

 III. There was no “error” in the judgment – so there was nothing

 to “reform.” ...................................................................................................9

CONCLUSION........................................................................................................12

PRAYER..................................................................................................................13

CERTIFICATE OF COMPLIANCE.......................................................................14

CERTIFICATE OF SERVICE ................................................................................14

COURT OF CRIMINAL APPEALS’ OPINION....................................APPENDIX

iv
INDEX OF AUTHORITIES

CASES PAGE(S)

Aldana v. State,

No. 08-13-00243-CR, 2015 WL 2344023

(Tex. App.—El Paso May 14, 2015)......................................................3, 6, 7, 10

Bigley v. State,

865 S.W.2d 26 (Tex.Crim.App.1993) ..................................................................9

Fullbright v. State,

818 S.W.2d 808 (Tex. Crim. App. 1991) .............................................................7

Habib v. State,

431 S.W.3d 737 (Tex. App.—Amarillo 2014, pet. ref’d) ..........................11, 11n

Harrell v. State,

286 S.W.3d 315 (Tex. 2009) ..............................................................................12

In re Johnson v. Tenth Judicial District Court of Appeals,

280 S.W.3d 866 (Tex. Crim. App. 2008) ...........................................................12

Latson v. State,

440 S.W.3d 119 (Tex. App.—Houston [14th Dist.] 2013, no pet.) ...............8, 12

State v. Crook, 

248 S.W.3d 172 (Tex. Crim. App. 2008) (plurality op.)..................................6, 9

Warren v. Purtell,

63 Ga. 428 (1879)...............................................................................................10

Wiedenfeld v. State,

450 S.W.3d 905 (Tex. App.—San Antonio 2014, no pet.) ..........................10, 11

v
STATUTES

TEX. GOV’T CODE §501.014(e)................................................................................9

TEX. R. APP. P. 33.1 ...................................................................................................7

TEX. R. APP. P. 43.2(b)...............................................................................................9

TEX. R. APP. P. 47.1 ...................................................................................................7

vi
IN THE

COURT OF CRIMINAL APPEALS

JOSE L. ALDANA, §

APPELLANT §

§

V. § No. PD-0725-15

§

THE STATE OF TEXAS, §

APPELLEE §

STATE’S PETITION FOR DISCRETIONARY REVIEW OF THE DECISION 

OF THE COURT OF APPEALS FOR THE EIGHTH COURT OF APPEALS 

DISTRICT OF TEXAS IN CAUSE NUMBER 08-13-00243-CR, MODIFYING THE 

JUDGMENT OF THE TRIAL COURT IN CAUSE NUMBER 1333327R IN THE 

396TH JUDICIAL DISTRICT COURT OF TARRANT COUNTY, TEXAS; THE 

HONORABLE GEORGE GALLAGHER, PRESIDING.

STATEMENT REGARDING ORAL ARGUMENT

Because the State’s arguments involve both legal issues which are unsettled 

and the interplay between criminal law and civil matters, oral argument would be 

helpful in elucidating the State’s views.

1
STATEMENT OF THE CASE

Appellant was indicted for (1) aggravated sexual assault of a child (digital 

penetration); (2) aggravated sexual assault of a child (mouth-to-genital contact); 

(3) indecency with a child (touching victim’s sexual organ); (4) indecency with a 

child (breast touching); and (5) indecency with a child (causing victim to touch 

Appellant’s genitals). CR 6.

The jury acquitted Appellant of the two aggravated sexual assault counts, 

but convicted him of all three indecency counts. RR VI – 4. The jury also assessed 

punishment – sixteen years and a $3,000 fine for each count. RR VIII – 4. The trial 

court ordered these sentences to run concurrently. Id.

2
PROCEDURAL HISTORY AND COURT OF APPEALS’ OPINION

On appeal, Appellant complained that the fines for all three offenses were 

“duplicative” and that two of them should be deleted, that the court costs attached 

to the third count were insufficiently clear and should be deleted, and that the trial 

court’s requirement that court costs be paid as a condition of parole should be 

deleted. See App. brief at 2-3 (summary of claims).

A panel of the El Paso Court of Appeals agreed with Appellant on his first 

and third claims and reformed the judgments to delete two of the fines and any 

language requiring that court costs be paid as a condition of parole. See Aldana v. 

State, No. 08-13-00243-CR, 2015 WL 2344023 at *2 (Tex. App.—El Paso May 

14, 2015).

3
QUESTIONS FOR REVIEW

(1) Should a defendant be required to object in the trial court that 

concurrent fines notated on three judgments are improper and should 

be deleted from two of them?

(2) Is reformation of the judgments to delete fines an appropriate remedy 

when the judgments, on their face, contain no errors, the fines are 

properly notated, and the written judgments do not differ from the trial 

court’s oral pronouncement of sentence?

(3) Did the Court of Appeals’ opinion amount to an improper “backdoor” 

assessment of a civil law matter for which it had no jurisdiction?

4
STATEMENT OF FACTS

Appellant was indicted for committing five counts of various forms of

sexual abuse against the nine-year-old granddaughter of his wife. CR 6; RR IV –

20-21. The jury acquitted him of two aggravated sexual assault counts, but 

convicted him of three counts of indecency with a child. RR IV - 6. The jury’s 

verdict at punishment was sixteen years in prison and a $3,000 fine for each count. 

RR VIII – 4. The trial court ordered the sentences to be served concurrently. RR 

VIII - 5.

As the State’s petition for review concerns only the court of appeals’ 

decision to delete fines from two of the judgments, a further recitation of the facts 

is unnecessary.

5
DISCUSSION

This is a case about remedies. Or, to be more precise, how can a court of 

appeals fashion a “remedy” to fix a non-erroneous judgment? In the State’s view, 

the El Paso Court of Appeals, overly protective of a defendant who might

experience administrative problems in the future, went out of its way to correct 

judgments which, on their face, were in perfect order.

I. The Court of Appeals’ opinion.

The El Paso Court correctly noted that Appellant received three judgments 

of conviction, each assessing Appellant a fine of $3,000, and each judgment 

indicated that Appellant’s sentences would run concurrently. Aldana, 2015 WL 

2344023 at *1; CR 174, 179, 184. The opinion goes on to clarify that “[f]ines 

which are part of concurrent sentences should also ‘run’ concurrently.” Aldana, 

2015 WL 2344023 at *1 (citing State v. Crook, 248 S.W.3d 172, 174 (Tex. Crim. 

App. 2008) (plurality op.)).

These facially appropriate judgments were not, however, enough for the 

court of appeals. Opining that “the clerks and functionaries with the Texas

Department of Corrections [sic]” might not understand the concept of concurrent 

fines, the El Paso Court deleted the fines from two of the judgments. Id. at *2. 

6
With regard to Appellant’s complaint that the withdrawal orders should also be 

deleted, and with regard to the State’s response that the court of appeals was 

without jurisdiction to consider what was essentially a civil matter, the court of 

appeals asserted that this issue was mooted by the deletion of the fines from the 

judgments. Id.

II. Appellant should have objected to the fines

In its reply brief to the court of appeals, the State argued that Appellant 

should have objected if he felt that he would be unduly penalized by judgments 

which accurately reflected the jury’s verdicts (i.e., three judgments each containing 

a $3,000 fine). See State’s brief at 6 (citing TEX. R. APP. P. 33.1).

The court of appeals’ opinion mentions this argument, but does not address 

it. See Aldana, 2015 WL 2344023 at *1. It should have. See TEX. R. APP. P. 47.1 

(opinion should address “every issue raised and necessary to final disposition of 

the appeal”). At the very least, this case should be remanded to the court of appeals 

to consider the State’s preservation argument.

In any event, Appellant’s failure to object should result in a forfeiture of his 

claim. First, he does not contend that the sentence was void or illegal. See, e.g., 

Fullbright v. State, 818 S.W.2d 808, 809 (Tex. Crim. App. 1991) (defect that 

7
renders sentence void may be raised at any time). At worst, Appellant appears to 

make the peculiar claim that his sentence will merely be misinterpreted by prison 

authorities. See App. brief at 7 (“Thus, [Appellant] is obligated to pay all three of 

these fines, and payment for them will be extracted from his TDCJ trust account 

and remitted to the Tarrant County District Clerk.”).

Second, this is not a case where Appellant was unable to object – for 

example, if a later-generated paper judgment did not accurately reflect what 

occurred in court, it might have been too late to object. In this case, after reading 

the jury verdicts (each of which levied a fine of $3,000), the trial judge sentenced 

Appellant: “the jury having found you guilty and returned the verdict of 16 years 

and a $3,000 fine in each count....” RR VIII – 8. Appellant should have been 

under a clear impression that a written judgment (or, in this case, judgments) 

would specifically delineate a $3,000 fine for each conviction. Had Appellant felt 

an impending ambiguity that he now claims is obvious, he should have objected at 

the time. See Latson v. State, 440 S.W.3d 119, 123 (Tex. App.—Houston [14th 

Dist.] 2013, no pet.) (defendant required to complain in trial court about possible 

improper withdrawals from his inmate trust fund to satisfy court costs).

Because Appellant did not object, the court of appeals should have held that 

he forfeited his claim.

8
III. There was no “error” in the judgment – so there was nothing to 

“reform.”

It is axiomatic that, before an erroneous judgment may be reformed by an 

appellate court, there must be some “error.” See TEX. R. APP. P. 43.2(b); Bigley v. 

State, 865 S.W.2d 26, 27 (Tex.Crim.App.1993) (acknowledging an appellate 

court’s ability to reform a judgment resulting from clerical or substantive errors). 

Here, the jury clearly assessed a $3,000 fine for each count of the indictment. CR 

168, 169, 170. The trial court’s oral pronouncement of sentence reflected that and 

additionally clarified that Appellant’s sentences would run concurrently. RR VIII –

8; see Crook, 248 S.W.3d at 174. The written judgments memorialized these 

concurrent sentences. CR 173, 179, 184. Included with the judgments are orders to 

the Texas Department of Criminal Justice to withdraw funds from Appellant’s 

inmate trust account. CR 177, 182, 187. See TEX. GOV’T CODE §501.014(e)

(mechanism for withdrawing funds from inmate trust account). All three 

withdrawal orders reflect a fine of $3,000. Id. One of them includes court costs. 

CR 177.

Given that the written judgments agreed with the oral pronouncement of 

sentence, there was simply no error to correct. However, in a fit of semi-nunc pro 

tunc jiu jitsu, the El Paso Court has speculatively employed a kind of all-purpose 

9
Murphy’s Law – an assumption that mere functionaries in the prison system are 

unable to understand the law and will charge Appellant $9,000 instead of the 

$3,000 he actually owes. Aldana, 2015 WL 2344023 at *2. In fact, the court of 

appeals doesn’t even seem particularly convinced that this assumption is true, only 

that it might be “probable.” See id. (quoting Warren v. Purtell, 63 Ga. 428, 430 

(1879) (“it is always probable that something improbable will happen”)).

This is thin gruel indeed on which to base a decision that these judgments 

need fixing. There is no reason to presume incompetence on the part of the 

Institutional Division of the Department of Criminal Justice, and there is no reason 

to think that the concept of a “concurrent fine” is beyond the ken of those who 

work in the Classification and Records Department. As the State pointed out

below, it would be unwarranted to presume that the Division would confine 

Appellant for forty-eight years just because each of his separate (but concurrent) 

judgments indicated a sentence of sixteen years. State’s brief at 5.

There are, obviously, similar situations in which reformation might be 

appropriate. For example, in Wiedenfeld v. State, 450 S.W.3d 905 (Tex. App.—San 

Antonio 2014, no pet.), the trial court orally pronounced concurrent fines of $1,000 

on two counts. Id. at 906. Despite this, however, the subsequent judgment put the 

defendant on the hook for $2,000. Id. The court of appeals understandably 

10
reformed the judgment to reflect a fine of $1,000.1 Id. at 907. This is obviously 

distinguishable from Appellant’s situation. In Appellant’s case, the trial court’s 

oral pronouncement does not deviate in any way from the written judgments.

More troubling, perhaps, is the Amarillo Court of Appeals’ opinion in Habib 

v. State, 431 S.W.3d 737 (Tex. App.—Amarillo 2014, pet. ref’d). The two written 

judgments in that case accurately reflected that two $5,000 fines would run 

concurrently. Id. at 742. However, because there was a $5,000 fine included in 

both bills of costs, the court of appeals determined that the fines were effectively 

cumulated. Id. Thus, the court deleted the $5,000 fine from one of the judgments. 

Id. Although the Amarillo court did not engage in any real analysis of the issue2

, it 

seemed to be of the same mind as the El Paso court – that multiple bills of costs 

(or, perhaps, withdrawal orders) would be too confusing for prison officials and 

would induce them to ignore the law of concurrent fines. But that is no reason for a 

court of appeals to delete fines from an otherwise healthy judgment of conviction.

As far as the withdrawal orders are concerned, the State adheres to its earlier 

argument that Appellant’s worries about the withdrawal orders have nothing to do 

with the appeal of his conviction. See State’s brief at 5-6. As the Texas Supreme 

Court has pointed out, “a withdrawal order does seize payment for costs previously 

1 Unlike in Appellant’s case, both counts in Wiedenfeld’s situation were apparently both 

subsumed into one judgment.

2 This was probably because the State conceded the point of error in full. See Habib, 431 S.W.3d 

at 742.

11

 
taxed in a criminal case, but the criminal case is over.” Harrell v. State, 286 

S.W.3d 315, 318 (Tex. 2009). See also id. (“Harrell is not contesting the convicting 

court’s authority to assess costs but its authority to collect costs.”) (emphasis in 

original); In re Johnson v. Tenth Judicial District Court of Appeals, 280 S.W.3d 

866, 873 (Tex. Crim. App. 2008) (an inmate trust account withdrawal order is not 

appealable as a criminal law matter). Indeed, it appears that because the El Paso 

Court was precluded by Harrell and Johnson from adjudicating the withdrawal 

order, it simply used its reformation of the judgment to, in its words, “moot[ ]” 

that order. Further, as no withdrawal has been made, Appellant should have

nothing to complain about. See Latson, 440 S.W.3d at 123 (defendant’s complaints 

about costs are meritless where “the record contains no evidence that funds have 

been withdrawn from [defendant’s] inmate trust fund”).

CONCLUSION

A jury convicted Appellant of three separate indecency-with-a-child 

offenses. That same jury then determined that each count deserved a fine of $3,000

(along with three prison sentences of sixteen years). The trial court ordered that 

these sentences (including, necessarily, the fines) run concurrently. However, the 

El Paso Court of Appeals has chosen to judicially abrogate the jury’s decision and 

12
delete the fines from two of the judgments, based on its unsupported assumption 

that officials in the prison system will misunderstand the law and take three times 

from Appellant what he owes.

The El Paso Court’s opinion is a remedy in search of a problem, and this 

Court should correct it.

PRAYER

The State prays that its petition be granted and that the Court of Appeals’ 

judgment deleting fines from two of the trial court’s judgments be reversed.

Respectfully submitted,

SHAREN WILSON

Criminal District Attorney

Tarrant County, Texas

DEBRA WINDSOR, Assistant

Criminal District Attorney,

Chief, Post-Conviction

/s/ James Gibson

JAMES GIBSON, Assistant 

Criminal District Attorney

State Bar No. 00787533

Tim Curry Criminal Justice Center

401 W. Belknap

Fort Worth, Texas 76196-0201

(817) 884-1687

FAX (817) 884-1672

CCAappellatealterts@tarrantcountytx.gov

13
CERTIFICATE OF COMPLIANCE

I certify that this document contains 1,808 words.

/s/ James Gibson

JAMES GIBSON 

CERTIFICATE OF SERVICE

A copy of the State’s petition for discretionary review has been e-served to 

opposing counsel, the Hon. Leigh Davis, leaghwdavis@gmail.com, 1901 Central 

Dr., Ste. 708, Bedford, Texas 76021 and to the Hon. Lisa McMinn, State’s 

Prosecuting Attorney’s Office, information@spa.texas.gov, P. O. Box 13046, 

Austin, Texas 78711, on July 15, 2015.

/s/ James Gibson

JAMES GIBSON

14
APPENDIX

COURT OF APPEALS’ OPINION
Aldana v. State, Not Reported in S.W.3d (2015)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

2015 WL 2344023

Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR

DESIGNATION AND SIGNING OF OPINIONS.

(DO NOT PUBLISH)

Court of Appeals of Texas,

El Paso.

Jose L. Aldana, Appellant,

v.

The State of Texas, Appellee.

No. 08–13–00243–CR | May 14, 2015

Appeal from 396th District Court of Tarrant County, Texas

(TC # 1333327R)

Before McClure, C.J., Rodriguez, and Hughes, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief Justice

*1 This appeal arises out of Appellant's conviction on three

counts of indecency with a child. Because his 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 One and Two of the indictment) and

three counts of indecency with a child (Counts Three, Four,

and Five). He was acquitted on the two aggravated sexual

assault counts, but convicted on all three indecency counts

(Counts Three, Four, and Five). The jury assessed a sixteenyear sentence and a $3,000 fine on each of the indecency

counts. The judgments of conviction for Counts Three, Four,

and Five require the sentences to run concurrently. The

judgment for Count Three assesses a $3,000 fine and taxes an

itemized Bill of Costs totaling $654, making the total amount

due $3,654. An order to withdraw funds, which is expressly

incorporated into the judgment, directs the Texas Department

of Criminal Justice to withdraw on a percentage formula

basis, $3,654 from Appellant's account until the total sum is

paid. The judgments for Counts Four and Five also assess the

$3,000 fine, but do not assess any court costs. The judgments

of conviction for Counts Four and Five also include an order

to withdraw funds for the respective $3,000 fines attributed

to each count.

Appellant brings three issues for review. In Issue One, he

contends that we should reform two of the judgments to

delete the $3,000 fine because when the jail sentences run

concurrently, the fines must also run concurrently. In Issue

Two, Appellant complains that the Bill of Costs is defective.

Finally, in Issue Three, he argues that the Bill of Costs 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

Tex. Penal Code Ann. § 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 concurrently, 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.

The State suggests that there is no proof that the Texas

Department of Corrections will treat the three fines

cumulatively, no more so than it would treat his sentence

cumulatively. It further responds that we should not modify

the order to withdraw funds because it is a civil matter.

Finally, the State alleges that any ambiguity in the judgments

of conviction should have been raised in the trial court.

*2 There is perhaps some ambiguity in the judgments with

regard to the fines. The court costs are included in only

one judgment, but the fines appear in all three, even though

both the fines and court costs are intended to be treated 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
Aldana v. State, Not Reported in S.W.3d (2015)

 © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

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 always

probable that something improbable will happen.” Warren v.

Purtell, 63 Ga. 428, 430 (1879). Accordingly, we reform the

judgments of conviction for Counts Four and Five to delete

the $3,000 fine reflected in each. Tex.R.App.P. 43.2(b)(“The

court of appeals may: ... (b) modify the trial court's judgment

and affirm it as modified”). The $3,000 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 orders to withdraw

funds are essentially civil matters 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

publication)(“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 Johnson, 280 S.W.3d 866, 873–

74 (Tex.Crim.App.2008). The order to withdraw funds in

Counts Four and Five, however, are expressly incorporated

into the judgments of conviction and became part of it.

Having reformed the judgments of convictions in Four and

Five to delete the $3,000 fine, the orders to withdraw funds

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.” Tex.Code Crim. Proc. art. 103.001

(West 2006). 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).

Appellant here claims that the Bill of Costs 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 Worth Court of Appeals

has heard and rejected this same complaint. 1Lawrence

v. State, 420 S.W.3d 329 (Tex.App.—Fort Worth, 2014,

pet. refd); 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

abbreviations 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 give 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

TEX.R.APP.P. 41.3.

In Issue Three, Appellant complains that the Bill of Costs

erroneously requires that any unpaid portion must be paid

as 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).

*3 We therefore modify the judgment of conviction for

Counts Four and Five to delete the $3,000 fine in each of

those judgments. We grant relief under Issue Three to the

extent that we reform the judgment of conviction 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.

All Citations

Not Reported in S.W.3d, 2015 WL 2344023

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.