Full Opinion (html_with_citations)

                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-12-00117-CR



          JERRY DON WHATLEY, Appellant

                            V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 294th District Court
               Van Zandt County, Texas
             Trial Court No. CR05-00442




       Before Morriss, C.J., Carter and Moseley, JJ.
         Memorandum Opinion by Justice Carter
                                     MEMORANDUM OPINION
        Jerry Don Whatley was convicted by a Van Zandt County jury of aggravated sexual

assault of a child by touching. 1 Whatley v. State,
415 S.W.3d 530
, 532–53 (Tex. App.—

Texarkana 2013), rev’d,
445 S.W.3d 159
 (Tex. Crim. App. 2014). Whatley was sentenced to

fifty years’ imprisonment, was assessed $573.00 in court costs, and was ordered to pay

$3,249.00 in attorney fees. Id. at 533. After upholding Whatley’s conviction, the Texas Court of

Criminal Appeals remanded the case to this Court so that we could consider Whatley’s

remaining arguments that the evidence is insufficient to support the assessment of court costs and

in the absence of a bill of costs and that the assessment of attorney fees was improper. See

Whatley,
445 S.W.3d at 167
 n.5. We find that the trial court’s assessment of $573.00 is

supported by the supplemental bill of costs, but that the order to pay $3,249.00 in attorney fees

was unauthorized because Whatley was indigent.

        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 the sufficiency of the evidence supporting an order of court costs 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). “If 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.’” Ballinger v. State, 405

1
 Originally appealed to the Twelfth Court of Appeals in Tyler, this case was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We
follow the precedent of the Twelfth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
2 S.W.3d 346, 348
 (Tex. App.—Tyler 2013, no pet.) (quoting TEX. CODE CRIM. PROC. ANN. art.

103.006 (West 2006)). ‘“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. ANN. art. 103.001 (West 2006); see Ballinger, 4-5 S/W/3d at 348. “The rules of

appellate procedure permit supplementation of the clerk’s record ‘[i]f a relevant item has been

omitted.’”
Id.
 (quoting TEX. R. APP. P. 34.5(c)(1)).

       “The code of criminal procedure does not require that a certified bill of costs be filed at

the time the trial court signs the judgment of conviction or before a criminal case is appealed.”
Id.
 (citing TEX. CODE CRIM. PROC. ANN. arts. 103.001, 103.006). “But when a trial court’s

assessment of costs is challenged on appeal and no bill of costs is in the record, it is appropriate

to supplement the record pursuant to Rule 34.5(c) because a bill of costs is required by Article

103.006.”
Id.
 (citing TEX. R. APP. P. 34.5(c); TEX. CODE CRIM. PROC. ANN. art. 103.006)).

“Supplementing the record to include the bill of costs is appropriate and does not violate due

process.”
Id.

       The clerk’s record in this case did not originally include a bill of costs. Pursuant to the

precedent of the Tyler Court of Appeals, we asked the Van Zandt County District Clerk to

prepare and file an itemized bill of costs. See Cordero v. State, No. 12-12-00365-CR,
2013 WL 3976048
, at *4 (Tex. App.—Tyler Jul. 31, 2013, pet. ref’d) (mem. op., not designated for




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publication). 2 In response, we received a supplemental clerk’s record containing a bill of costs.

The itemized bill of costs shows that, excluding the attorney fees that were also included as court

costs, the total amount of court costs was $573.00.

        Because the supplemental record contains a bill of costs supporting the amount of court

costs assessed, Whatley’s issue with respect to court costs is moot. See Clemments v. State, No.

12-12-00164-CR,
2013 WL 4769259
, at *3 (Tex. App.—Tyler Sept. 4, 2013, no pet.) (mem. op.,

not designated for publication); see Ballinger, 405 S.W.3d at 349 n.4.

        However, “[s]ome court costs, such as attorney fees, may not be assessed against a

defendant if he was found indigent because his indigence is presumed to continue throughout the

remainder of the proceedings ‘unless a material change in [his] financial circumstances occurs.’”

Yon v. State,
440 S.W.3d 828, 834
 (Tex. App.—Tyler 2013, no pet.) (quoting TEX. CODE CRIM.

PROC. ANN. art. 26.04(p) (West Supp. 2014)). “If a trial court does not make a determination

that a defendant’s financial circumstances materially changed . . ., the evidence will be

insufficient to impose attorney’s fees as court costs.”
Id.
 (citing TEX. CODE CRIM. PROC. ANN.

arts. 26.04(p), 26.05(g) (West Supp. 2014); Mayer,
309 S.W.3d at 553
; Wolfe v. State,
377 S.W.3d 141, 144, 146
 (Tex. App.—Amarillo 2012, no pet.)).

        Here, the clerk’s record demonstrates that Whatley was found to be indigent at several

points throughout the pendency of his case, including on the day after the judgment of conviction

was entered. As a result, the evidence is insufficient to support the imposition of attorney fees as

court costs. See Yon,
440 S.W.3d at 834
.

2
 Although this unpublished case has no precedential value, we may take guidance from it “as an aid in developing
reasoning that may be employed.” Carrillo v. State,
98 S.W.3d 789, 794
 (Tex. App.—Amarillo 2003, pet. ref’d).
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       We overrule Whatley’s complaint relating to the assessment of $573.00 in court costs,

but sustain his point complaining of the order to pay attorney fees. Therefore, we modify the

judgment by deleting the order that Whatley pay $3,249.00 in attorney fees and affirm the trial

court’s judgment, as modified.



                                           Jack Carter
                                           Justice

Date Submitted:       December 16, 2014
Date Decided:         December 30, 2014

Do Not Publish




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