IN THE

TENTH COURT OF APPEALS

No. 10-15-00167-CR

No. 10-15-00173-CR

RAYMOND ROSS MORMINO, II,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 19th District Court

McLennan County, Texas

Trial Court Nos. 2012-396-C1 and 2012-394-C1

MEMORANDUM OPINION

Upon his open plea of guilty, Raymond Mormino, II, was convicted in Cause No. 

10-15-00167-CR of the offense of failure to stop and render aid. The trial court assessed 

punishment at ten years confinement. Upon his open plea of guilty, Raymond Mormino, 

II, was convicted in Cause No. 10-15-00173-CR of the offense of aggravated assault with 

a deadly weapon, a motor vehicle. The trial court assessed punishment at fifteen years 
Mormino v. State Page 2

confinement. The sentences are to run concurrently. We affirm Cause No. 10-15-00167-

CR. We affirm as modified Cause No. 10-15-00173-CR.

Background Facts

On January 23, 2012, McLennan County Sheriff’s Deputy Tyrone Caldwell was off 

duty and exercising in a local park. Deputy Caldwell was hit by a vehicle driven by 

Appellant and suffered severe injuries. Appellant fled the scene, but police received 

information linking Appellant to the accident. Police went to Appellant’s residence and 

located a vehicle containing pieces of human flesh which was confirmed by DNA 

evidence to be from Deputy Caldwell. The vehicle also contained damage consistent with 

the evidence found at the scene of the accident.

Criminal Filing Fees

In the sole issue on appeal in Cause No. 10-15-00167-CR, and in the third issue on 

appeal in Cause No. 10-15-00173-CR, Appellant argues that there is no statutory basis for 

the imposition of a “CRIMINAL FILING FEE” in the amount of $224.00. The clerk’s 

record contains a bill of costs indicating that Appellant is required to pay $369.00 in court 

costs. Among the fees listed in the bill of costs is a “criminal filing fee” in the amount of 

$224.00. The bill of costs does not provide specific detail for the criminal filing fee. On 

March 17, 2016, the trial court clerk filed a supplemental clerk’s record that detailed the 

specific charges related to the $224.00 filing fee.

A bill of costs is a relevant item that if omitted from the record, can be prepared 

and added to the record via a supplemental clerk's record. Johnson v. State, 423 S.W.3d 

385, 392 (Tex. Crim. App. 2014). Therefore, matters pertaining to the imposition of court 
Mormino v. State Page 3

costs need not be brought to the attention of the trial court, including a bill of costs 

prepared after a criminal trial. Id at 394. Once the record has been properly 

supplemented with a bill of costs, the court of appeals errs when it fails to consider that 

bill of costs when resolving Appellant's court-costs claim. See Johnson v. State, 423 S.W.3d 

at 394.

The fees itemized in the supplemental clerk’s record bill of costs are all authorized 

by statute: 

 Clerk’s Fee - $40.00 TEX. CODE CRIM. PROC. art. 102.005 (a) (West 2006)

 Records Management Fee - $25.00 TEX. CODE CRIM. PROC. art. 102.005 (f) 

(West 2006)

 Courthouse Security Fee - $5.00 TEX. CODE CRIM. PROC. art. 102.017(a) (West 

Supp. 2015)

 Consolidated Court Costs - $133.00 TEX. LOC. GOV’T CODE ANN. § 133.102(a) 

(West Supp. 2015)

 Judicial Support Fee - $6.00 TEX. LOC. GOV’T CODE ANN. § 133.105 (a) (West 

2008)

 Jury Reimbursement Fee - $4.00 TEX. CODE CRIM. PROC. art. 102.0045 (a) 

(West Supp. 2015)

 Indigent Defense Representation Fee - $2.00 TEX. LOC. GOV’T CODE ANN. § 

133.107(West Supp. 2015)

 District Court Technology Fee - $4.00 TEX. CODE CRIM. PROC. art. 102.0169 

(West Supp. 2015)

 Electronic Filing Fee - $5.00 – TEX. GOV’T CODE ANN. § 51.851 (West Supp. 

2015)

The supplemental clerk’s record contains an itemized bill of costs that provides a 

statutory basis for the $224.00 in costs Appellant complains of on appeal. We overrule 

the sole issue in Cause No. 10-15-00167-CR and the third issue in Cause No. 10-15-00173-

CR.
Mormino v. State Page 4

Admonishment on Range of Punishment

In the first issue in Cause No. 10-15-00173-CR, Appellant complains that the trial 

court erred in failing to admonish him on the correct range of punishment. The record 

shows that prior to accepting Appellant’s plea of guilty, the trial court incorrectly 

admonished Appellant that the range of punishment for aggravated assault was “not less 

than two nor more than ten years”. The actual range of punishment for aggravated 

assault, a second degree felony, is not less than 2 years nor more than twenty years. TEX.

PENAL CODE ANN. § 22.02; 12.33 (West 2011). The trial court ordered a presentence 

investigation before assessing punishment. At the punishment hearing, the trial court 

stated:

I had indicated that on the aggravated assault case that I was going 

to do 12 years in the penitentiary and 10 years on the failure to stop and 

render aid. The aggravated assault case is a 2 to 20. The failure to stop and 

render aid was 2 to 10. After hearing the testimony today and seeing all the 

physical evidence, it gives you a different perspective than what I had 

originally. So I’m going to assess your sentence on the aggravated assault 

case at 15 years in the penitentiary, and I’m still going to make it 10 years 

on the failure to stop and render aid. 

Article 26.13(a)(1) of the Code of Criminal Procedure states that, "[p]rior to 

accepting a plea of guilty or plea of nolo contendere, the court shall admonish the 

defendant of ... the range of punishment attached to the offense[.]" TEX. CODE CRIM. PROC.

ANN. art. 26.13 (a) (1) (West Supp. 2015). In admonishing the defendant, “substantial 

compliance by the court is sufficient, unless the defendant affirmatively shows that he 

was not aware of the consequences of his plea and that he was misled or harmed by the 

admonishment of the court. TEX. CODE CRIM. PROC. ANN. art. 26.13 (c) (West Supp. 2015). 
Mormino v. State Page 5

Appellant argues, and the State agrees, that the trial court’s misstatement of the 

applicable range of punishment did not substantially comply with Article 26.13 (a) (1).

Because the failure to properly admonish on the applicable punishment range is 

predicated on a statutory violation, the standard for determining harm is that used for 

claims of non-constitutional error in TEX.R.APP.P. 44.2(b). Davison v. State, 405 S.W.3d 

682, 688 (Tex. Crim. App. 2013). In determining harm under this provision, we must look 

to the record as a whole to determine whether Appellant was “aware of the particular 

information upon which he should have been admonished ... prior to the time that the 

trial court accepted his plea.” Id.

Appellant signed a “Waiver of Jury Trial, Stipulation of Evidence, and Judicial 

Confession Felony Plea of Guilty to Open Court” in which he acknowledges that he 

understands the minimum and maximum punishment. The waiver signed by Appellant 

states that aggravated assault is a second degree felony. Appellant’s trial counsel further 

signed the waiver and stated that he consulted with Appellant concerning the charge of 

aggravated assault, a second degree felony, and the consequences of the plea. In a 

competency evaluation in which Appellant was found competent to stand trial, the 

evaluator noted that Appellant “understood his charge and recognized the seriousness 

of the charge stating they were felonies punishable by “2-20 years and 2-10 years 

maximum.’”

At the punishment hearing, the trial court stated the correct range of punishment. 

Neither Appellant nor his counsel had any reaction or showed any surprise to the correct 

range of punishment. The trial court further indicated that he had planned to assess 
Mormino v. State Page 6

punishment at 12 years, but decided on 15 after hearing the evidence. Again neither 

Appellant nor his counsel had any reaction to the trial court’s statement. The Appellant's 

failure to exhibit alarm or surprise at the punishment phase is a circumstance relevant in 

determining harm. Davison v. State, 405 S.W.3d at 688-689. For claims of nonconstitutional error, "a conviction should not be overturned unless, after examining the 

record as a whole, a court concludes that an error may have had 'substantial influence' 

on the outcome of the proceeding." Burnett v. State, 88 S.W.3d 633, 637-8 (Tex. Crim. App. 

2002). If the reviewing court has "a grave doubt" that the result was free from the 

substantial influence of the error, then it must treat the error as if it did. Id. There is 

evidence in the record to show that Appellant was aware of the consequences of his plea, 

including the range of punishment. After reviewing the entire record, we cannot say that 

the trial court’s misstatement on the applicable range of punishment misled or harmed 

appellant. TEX.R.APP.P. 44.2(b); Davison v. State, 405 S.W.3d at 689; Burnett v. State, 88 

S.W.3d at 641. We find that Appellant’s substantial rights were not affected by the trial 

court's faulty admonishment. TEX.R.APP.P. 44.2(b); Davison v. State, 405 S.W.3d at 689. 

We overrule the first issue in Cause No. 10-15-00173-CR.

Assessment of Fees

In the second issue in Cause No. 10-15-00173-CR, Appellant argues that the 

evidence is insufficient to support the trial court’s decision to order Appellant, who is 

indigent, to pay court costs for court-appointed attorney’s fees. The State concedes that 

there is insufficient evidence to support the assessment of court-appointed attorney’s 

fees. We sustain the second issue in Cause No. 10-15-00173-CR.
Mormino v. State Page 7

Conclusion

We affirm the trial court’s judgment in Cause No. 10-15-00167-CR. In Cause No. 

10-15-00173-CR, we modify the trial court’s judgment to delete the assessment of 

attorney’s fees. As modified, the judgment in Cause No. 10-15-00173-CR is affirmed.

AL SCOGGINS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

Affirmed; Affirmed as modified 

Opinion delivered and filed May 12, 2016

Do not publish

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