Ketrick Morris v. State

Opinion issued May 9, 2013

In The

Court of Appeals

For The

First District of Texas

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NO. 01-12-00894-CR

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KETRICK MORRIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Case No. 1337241

MEMORANDUM OPINION

Without a sentencing recommendation from the State, appellant Ketrick

Morris pleaded guilty to the felony offense of aggravated robbery with a deadly

weapon. Following the preparation of a presentence investigation report, the trial

court conducted a sentencing hearing. At the hearing, the trial court announced

that it had determined the evidence to be sufficient to find appellant guilty of the

offense. The court sentenced him to 18 years in prison.

In its August 23, 2012 judgment, the trial court ordered appellant to pay

court costs of $279.00. 1 Appellant filed a notice of appeal. He filed a “designation

of Clerk’s Record” in which he included a request for “[t]he bill of costs reflecting

all fees and costs assigned to Defendant post-conviction.” The original clerk’s

record did not contain a bill of costs. Presenting one issue on appeal, appellant

asserted in his opening brief that there is “insufficient evidence” to support the

court costs imposed by the trial court.

The district clerk then filed a supplemental record containing a bill of costs.

The bill reflects that appellant owed costs of $279, the same amount the trial court

ordered appellant to pay. 2 Appellant filed in this Court his “Objection to

Supplemental Record on Appeal.”

1

Because appellant has limited his issue on appeal to one challenging court costs,

we do not discuss the evidence offered at the sentencing hearing or the facts

underlying the offense.

2

The document contained in the supplemental record indicates that it is from the

Harris County Clerk’s Justice Information Management Systems, commonly

referred to by its acronym “JIMS.” The document, entitled “JIMS Cost Bill

Assessment,” itemizes the various costs assessed in appellant’s case. The costs are

listed on two pages. We note that Code of Criminal Procedure article 103.009(a)

requires the clerk of a court to keep a fee record; however, there is no indication

2

In the objection, appellant argued that permitting a bill of costs to be

produced after rendition of judgment denies him due process because he did not

have the opportunity to object in the trial court to any costs assessed in the bill.

Appellant relies on the Harrell v. State in making this argument. 286 S.W.3d 315

(Tex. 2009). Recently, in Cardenas v. State, we explained, “Harrell is

procedurally distinguishable because it was a civil proceeding filed by a prison

inmate who challenged the withdrawal of funds from his trust account to pay court

costs, but did not challenge the amount of costs assessed.” No. 01–11–01123–CR,

2013 WL 1164365, at *5 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013, no pet.

h.) (citing Harrell, 286 S.W.3d at 316–17). We acknowledged that an appellant in

a direct criminal appeal, challenging the assessment of court costs, may raise the

issue on appeal even though he did not make the objection in the trial court. Id.

For this reason, we stated that “Cardenas was not procedurally prejudiced by his

alleged inability to raise his objections in the trial court.” Id.

We also noted that there is a separate procedural avenue to seek correction

of any error in the assessed costs. Id. (citing TEX. CODE CRIM. PROC. ANN. art.

103.008(a) (“On the filing of a motion by a defendant not later than one year after

the date of the final disposition of a case in which costs were imposed, the court in

which the case is pending or was last pending shall correct any error in the

that the fee record cannot be kept electronically. See TEX. CODE CRIM. PROC.

ANN. art. 103.009(a) (Vernon 2006).

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costs.”)). We explained that “Harrell did not address the article 103.008 procedure

for correcting court costs. And in any case, that opinion does not purport to

specify the only means by which a criminal defendant can contest an assessment of

court costs.” Id. We held that an appellant’s ability to contest the assessment of

costs for the first time on appeal and the availability of the article 103.008 review

process provide an appellant with adequate due process, irrespective of his alleged

inability to object in the trial court to the specific fees identified in the later-

generated bill of costs. See id.

Appellant also intimates that it is not appropriate for a bill of costs to be

“created” after the trial court had rendered judgment. Code of Criminal Procedure

article 103.006 provides that “[i]f 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.” TEX. CODE PROC. ANN. art. 103.006 (Vernon 2006). Pursuant to the

language of article 103.006, a bill of costs shall be certified, signed, and sent on the

appeal of a criminal action, which necessarily occurs after rendition of a final

judgment. Thus, the statute appears to contemplate that a bill of costs will be

generated after rendition of the judgment; that is, at the time the judgment is

appealed. See Cardenas, 2013 WL 1164365, at *4–5.

4

After the supplemental clerk’s record was filed, the State filed its response

brief. In its original response brief, the State asserted that appellant’s complaint is

not ripe for appellate review. The ripeness doctrine protects against judicial

interference until a decision has been formalized and its effects felt in a concrete

way by the challenging parties. State ex rel. Watkins v. Creuzot, 352 S.W.3d 493,

504 (Tex. Crim. App. 2011). To determine whether an issue is ripe for

adjudication, we evaluate both the fitness of the issues for judicial decision and the

hardship to the parties of withholding court consideration. Id.

The State asserts that the issue is not ripe because appellant has not been

asked to pay the costs. The State pointed out that appellant is not required to pay

the court costs until a bill of costs has been produced. See TEX. CODE CRIM. PROC.

ANN. art. 103.001 (Vernon 2010) (providing that a cost is not payable by person

charged until a bill of costs is produced or ready to be produced). However, the

supplemental record contains a bill of costs. The State also suggests that the issue

is not ripe because Government Code section 501.014(e) requires the trial court to

issue a notification of withdrawal before funds may be withdrawn from an inmate

account. See TEX. GOV’T CODE ANN. § 501.014(e) (Vernon 2012). But

Government Code section 501.014(e)(4) also indicates that a withdrawal

notification can be issued to pay “in full . . . all orders for court fees and costs.” Id.

Because the amount of costs ordered in the judgment may serve as a basis to issue

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a withdrawal notification, and a bill of costs has been produced, appellant’s

challenge to the portion of the judgment ordering him to pay costs is ripe for

appellate review. Additionally, the State asserts that “an inmate may appeal a trial

court’s order either granting or denying a motion to confirm, modify, correct, or

rescind a prior withdrawal notification.” See Hodo v. State, No. 07-10-00120-CV,

2010 WL 2427426 at *3 (Tex. App.—Amarillo June 17, 2010, no pet.) (mem. op.,

not designated for publication). We do not perceive the availability of additional

or alternative remedies as negating the ripeness of appellant’s direct appellate

challenge to costs assessed in the judgment.

On February 15, 2013, the district clerk’s office filed a second supplemental

clerk’s record. The record contains an amended bill of costs. The amended bill

provides that costs in this case total $234, rather than the $279 reflected in the

earlier filed bill of costs and the August 23, 2012 judgment. On February 7, 2012,

the trial court signed a judgment nunc pro tunc on its own motion to correct the

amount of costs assessed against appellant. The judgment nunc pro tunc reflects a

costs assessment of $234. It is also included in the second supplemental clerk’s

record.

Appellant filed his “Second Objection to Supplemental Record on Appeal.”

In this filing, appellant asserts that it was not appropriate for the trial court to sign a

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judgment nunc pro tunc. 3 A nunc pro tunc judgment allows the trial court to

correct the record when there is a discrepancy between the judgment as

pronounced in court and the judgment reflected in the record. Blanton v. State, 369

S.W.3d 894, 897–98 (Tex. Crim. App. 2012). “Corrections to the record are

limited to clerical errors and are not appropriate for errors involving judicial

reasoning.” Id. at 898. Appellant contends that it was not appropriate for the trial

court to sign the nunc pro tunc judgment because it corrected a judicial error not a

clerical error. However, we need not make this determination.

3

Appellant also complains that the amended bill of costs is flawed because the

signature on the bill does not identify whether the person who signed it is an

officer who charged the cost or an officer who is entitled to payment for the cost.

See TEX. CODE CRIM. PROC. ANN. art. 103.001 (Vernon 2006) (specifying that the

bill of costs is to be “signed by the officer who charged the cost or the officer who

is entitled to receive payment for the cost”). The amended bill of costs was filed

in a supplemental record with this Court. The documents in the supplemental

record, including the amended bill, have been certified by the district clerk as

being “true and correct copies of all proceedings, instruments and other papers.”

The certification further states that the contents of the supplemental record

constitute “true and correct copies of all proceedings, instruments, and other

papers specified by Rule [TEX. R. APP. P.] 34.5(a) and matters designated by the

parties pursuant to [TEX. R. APP. P.] 34.5(b) in Cause No. 1337241, styled

KETRICK MORRIS vs. The State of Texas in said court.” The certification was

signed by a deputy clerk on behalf of the district clerk, who is entitled to receive

payment for court costs. See id. art. 103.003(a) (Vernon Supp. 2012). The

document itself has also been certified by the district clerk as “a true and correct

copy of the original record filed and or recorded” in his office. The certification

was also signed by a deputy clerk on behalf of the district clerk, who, as stated, is

entitled to receive payment for court costs. See id. In Cardenas, we addressed a

similar argument on rehearing. We determined that the bill of costs filed as part of

a supplemental record substantially satisfied article 103.001 because the bill is

“written,” it contains “the items of cost,” and it is “signed” by a deputy clerk on

behalf of the district clerk, who is “the officer who is entitled to receive payment

for the cost.” Cardenas, 2013 WL 1162365, at *6 n.6. We reach the same

conclusion here.

7

Rule 23.1 of the Texas Rules of Appellate Procedure vests a trial court with

the authority to correct clerical mistakes or errors in a judgment or order through

entry of a nunc pro tunc judgment so long as the defendant has not appealed. See

TEX. R. APP. P. 23.1; State v. Bates, 889 S.W.2d 306, 309 (Tex. Crim. App. 1994)

(interpreting former rule of appellate procedure 36, predecessor to current rule

23.1). Rule of Appellate Procedure 25.2(g) provides, “Once the record has been

filed in the appellate court, all further proceedings in the trial court—except as

provided otherwise by law or by these rules—will be suspended until the trial court

receives the appellate-court mandate.” TEX. R. APP. P. 25.2(g); see also Green v.

State, 906 S.W.2d 937, 939 (Tex. Crim. App. 1995) (interpreting former appellate

rule 40(b)(2), predecessor to current rule 25.2). Thus, a trial court may not render

a judgment nunc pro tunc after the appellate record is filed in the court of appeals.

See TEX. R. APP. P. 25.2(g); see also Green, 906 S.W.2d at 939.

Here, the appellate record had been filed in this Court when the nunc pro

tunc judgment was signed on February 7, 2013. Accordingly, the trial court no

longer had jurisdiction to sign the nunc pro tunc judgment. See TEX. R. APP. P.

25.2(g); see also Green, 906 S.W.2d at 939 (holding findings of fact and

conclusions of law, entered after filing of appellate record, were void). Because

the trial court lacked jurisdiction to sign the judgment nunc pro tunc to correct its

judgment after the appellate record in this case was filed, we disregard the nunc

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pro tunc judgment contained in the supplemental clerk’s record. We review the

original judgment signed on August 23, 2012, assessing costs of $279.

A defendant convicted of a felony offense must pay certain statutorily

mandated costs and fees, which vary depending on the type of offense, the

underlying facts, and procedural history of the case. See Owen v. State, 352

S.W.3d 542, 546 n.5 (Tex. App.—Amarillo 2011, no pet.) (providing an extensive

list of Texas statutes requiring convicted persons to pay costs and fees). The

record demonstrates that appellant was convicted of a felony in district court,

supporting each of the following costs listed in the amended bill of costs:

• $40 “clerk’s fee” (See TEX. CODE CRIM. PROC. ANN. art.

102.005(a) (Vernon 2006) (“A defendant convicted of an

offense in . . . a district court shall pay for the services of the

clerk of the court a fee of $40.”));

• $5 “security fee” (See id. art 102.017(a) (Vernon Supp. 2012)

(“A defendant convicted of a felony offense in a district court

shall pay a $5 security fee as a cost of court.”));

• $133 “consolidated court costs” (See TEX. LOC. GOV’T CODE

ANN. § 133.102(a)(1) (Vernon Supp. 2012) (entitled

“Consolidated Fees on Conviction” and providing, “A person

convicted of an offense shall pay as a court cost, in addition to

all other costs . . . $133 on conviction of a felony. . . .”));

• $4 “jury reimbursement fee” (See TEX. CODE CRIM. PROC. ANN.

art. 102.0045(a) (Vernon Supp. 2012) (“A person convicted of

any offense, other than an offense relating to a pedestrian or the

parking of a motor vehicle, shall pay as a court cost, in addition

to all other costs, a fee of $4 to be used to reimburse counties

for the cost of juror services as provided by Section 61.0015,

Government Code.”));

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• $25 “DC records preservation” (See id. art. 102.005(f) (“A

defendant convicted of an offense in a . . . district court shall

pay a fee of $25 for records management and preservation

services performed by the county as required by Chapter 203,

Local Government Code.”));

• $2 “support of indigent defense” (See TEX. LOC. GOV’T CODE

ANN. § 133.107(a) (Vernon Supp. 2012) (“A person convicted

of any offense, other than an offense relating to a pedestrian or

the parking of a motor vehicle, shall pay as a court cost, in

addition to other costs, a fee of $2 to be used to fund indigent

defense representation through the fair defense account

established under Section 79.031, Government Code.”));

• $6 “support of judiciary fee” (See id. § 133.105(a) (Vernon

2008) (“A person convicted of any offense, other than an

offense relating to a pedestrian or the parking of a motor

vehicle, shall pay as a court cost, in addition to all other costs, a

fee of $6 to be used for court-related purposes for the support of

the judiciary.”)); and

• $4 “court technology fund” (See TEX. CODE CRIM. PROC. ANN. art.

102.0169(a) (Vernon Supp. 2012) (“A defendant convicted of a

criminal offense in a . . . district court shall pay a $4 . . . district court

technology fee.”)).

The amended bill of costs also lists a sheriff’s fee of $15. The record

supports assessment of each of the costs constituting the sheriff’s fee, as follows:

• $5 “commitment” and $5 “release” (See id. art. 102.011(a)(6)

(Vernon Supp. 2012) (“A defendant convicted of a felony or a

misdemeanor shall pay the following fees for services

performed in the case by a peace officer . . . $5 for commitment

or release . . . .”)); and

• $5 “arrest without warrant or capias” (See id. art. 102.011(a)(6)

(“A defendant convicted of a felony or a misdemeanor shall pay

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the following fees for services performed in the case by a peace

officer . . . $5 for commitment or release . . . .”)). 4

The amended bill of costs reflects total costs of $234. Thus, the amended

bill of costs supports an assessment of court costs in the amount of $234 but does

not support the $279 costs assessment ordered in the judgment.

We have the power to modify an incorrect judgment to make the record

speak the truth when we have the necessary information before us to do so. See

TEX. R. APP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App.

1992). Accordingly, we overrule appellant’s sole issue, but we modify the trial

court’s August 23, 2012 judgment to reflect an assessment of $234 in court costs.

See Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993) (appellate court

has authority to modify incorrect judgment when necessary information is

available to do so); TEX. R. APP. P. 43.2(b).

4

In his second objection to the supplemental record, appellant contends that “the

Code of Criminal Procedure mandates that there be a fee record for any Sheriff’s

costs.” See TEX. CODE CRIM. PROC. ANN. art. 103.009 (“Each clerk of a court,

county judge, justice of the peace, sheriff, constable, and marshal shall keep a fee

record.”). We addressed this argument on rehearing in Cardenas. There, as in this

case, appellant “presents no authority that an article 103.009 fee record must be

filed with a trial court to support the inclusion of a sheriff’s fees among the costs

of court chargeable to a defendant convicted of a crime.” Cardenas, 2013 WL

1162365, at *6 n.10. In addition, as in Cardenas, appellant “also presents no

argument that the events described in the appellate record did not actually occur,

or that the corresponding costs were not legally authorized or were inaccurately

assessed.” Id.

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We affirm the judgment, as modified.

Laura Carter Higley

Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).

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