Jose Juan Cardenas v. State

Opinion issued March 21, 2013

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-11-01123-CR

———————————

JOSE JUAN CARDENAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th District Court

Harris County, Texas

Trial Court Case No. 1309968

OPINION ON REHEARING *

Appellant Jose Juan Cardenas pleaded guilty to the first-degree felony

offense of aggravated robbery with a deadly weapon. See TEX. PENAL CODE ANN.

§ 29.03 (West 2011). The trial court entered judgment on the guilty plea. On

appeal, Cardenas contends that the evidence was insufficient to support the trial

court’s judgment and to support the assessment of $294 in court costs. We affirm.

Background

Cardenas was indicted for aggravated robbery with a deadly weapon. The

indictment alleged that Cardenas “did . . . while in the course of committing theft

of property owned by [the complainant], and with intent to obtain and maintain

control of the property, intentionally and knowingly threaten [the complainant] and

place [him] in fear of imminent bodily injury and death,” and that he “did then and

there use and exhibit a deadly weapon, namely, A FIREARM.”

Prior to entering his guilty plea, Cardenas executed a two-page form

document, the first page of which contains the following waiver of constitutional

rights, agreement to stipulate, and judicial confession:

*

Appellant has filed a motion for reconsideration en banc, solely challenging

our disposition of the second issue relating to court costs. Treating the

motion as one for rehearing, we grant rehearing and withdraw our opinion

and judgment of February 7, 2013, issuing this opinion in its stead. Our

disposition of the appeal remains unchanged. Because we are issuing a new

opinion, the motion for en banc reconsideration of our prior opinion is moot.

See Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 41 & n. 4 (Tex. App.—

Houston [1st Dist.] 2004, pet. denied).

2

In open court and prior to entering my plea, I waive the right of trial

by jury. I also waive the appearance, confrontation, and cross-

examination of witnesses, and my right against self-incrimination.

The charges against me allege that in Harris County, Texas, JOSE

JUAN CARDENAS, hereinafter styled the Defendant, heretofore on

or about JUNE 15, 2011, did then and there unlawfully, while in the

course of committing theft of property owned by [the complainant]

and with intent to obtain and maintain control of the property,

intentionally and knowingly threaten and place in fear of imminent

bodily injury and death, and the Defendant did then and there use and

exhibit a deadly weapon, namely, A FIREARM.

The second page of the form includes the recital that “I understand the above

allegations and I confess that they are true and that the acts alleged above were

committed on June 15, 2011.” The form further states: “In open court I consent to

the oral and written stipulation of evidence in this case . . . .” The document bears

Cardenas’s signature, sworn and subscribed before a deputy district clerk on

September 20, 2011. This page was also signed by the defense attorney, who

thereby confirmed that he represented Cardenas, and discussed with him the

document and its consequences. The attorney further confirmed that he believed

Cardenas knowingly and voluntarily executed the document after their discussion.

The same document was signed by an assistant district attorney, indicating consent

to and approval of Cardenas’s waiver of trial by jury and stipulation of evidence.

After Cardenas, his attorney, and the district attorney executed the

stipulation of evidence and judicial confession, the document was filed with the

papers of the case, as evidenced by the file stamp of the district clerk, dated

3

September 20. After these events took place, Cardenas appeared before the trial

judge, who signed the same form, thereby confirming that she approved his waiver

of constitutional rights, agreement to stipulate, and judicial confession, and that he

entered a plea of guilty. The trial judge admonished Cardenas of the consequences

of his plea and ascertained that he entered his plea knowingly and voluntarily after

discussing the case with his attorney. In a separate sworn document also executed

on September 20, Cardenas waived the right to have the court reporter record his

plea, and he specifically acknowledged: “I have read the indictment and I

committed each and every element alleged.”

The trial court ordered the preparation of a presentence investigation report.

After a hearing, the court found Cardenas guilty and sentenced him to 25 years in

prison, stating on the record that he would receive credit for 118 days already

served. The final judgment assessed $294 in court costs and stated, “The Court

ORDERS that upon release from confinement, Defendant proceed immediately to

the Harris County District Clerk’s office. Once there, the Court ORDERS

Defendant to pay, or make arrangements to pay, any remaining unpaid fines, court

costs, and restitution as ordered by the Court.”

Represented by the Harris County Public Defender’s office, Cardenas brings

this appeal.

4

Analysis

Cardenas raises two separate issues challenging the sufficiency of the

evidence to support the judgment. First, he challenges the sufficiency of the

evidence to support the judgment of conviction. Second, he challenges the

sufficiency of the evidence to support the judgment’s award of costs.

I. Sufficiency of evidence to support conviction

In his first issue, Cardenas argues that the evidence in the record is

insufficient to support his conviction because there is no statement by him, there is

no evidence independent of his guilty plea, and the paper he signed “has no

connection to the specific charges in this conviction.” He therefore argues that no

evidence was produced to support the conviction. In response, the State argues

that Cardenas entered a judicial confession that was sufficient to support the

judgment of guilt.

In a review of the sufficiency of the evidence to support each element of a

criminal offense, “we consider all of the evidence in the light most favorable to the

verdict to determine whether, based on that evidence and the reasonable inferences

therefrom,” the factfinder was rationally justified in finding guilt beyond a

reasonable doubt. Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012).

Article 1.15 of the Texas Code of Criminal Procedure provides that in the event of

a felony conviction based upon a guilty plea in lieu of a jury verdict, “it shall be

5

necessary for the state to introduce evidence into the record showing the guilt of

the defendant and . . . in no event shall a person charged be convicted upon his plea

without sufficient evidence to support the same.” TEX. CODE CRIM. PROC. ANN.

art. 1.15 (West 2005). The “[e]vidence offered in support of a guilty plea may take

many forms,” including a “written stipulation of what the evidence against him

would be,” and such a stipulation “will suffice to support the guilty plea so long as

it embraces every constituent element of the charged offense.” Menefee v. State,

287 S.W.3d 9, 13 (Tex. Crim. App. 2009). A defendant who pleads guilty need

not concede the veracity of the evidence to which he stipulates, but if he does, the

court will consider the stipulation to be a judicial confession. See id.; Stone v.

State, 919 S.W.2d 424, 426 (Tex. Crim. App. 1996).

A person commits robbery if, in the course of committing theft, and with

intent to obtain or maintain control of property, he intentionally or knowingly

places another in fear of imminent bodily injury or death. TEX. PENAL CODE ANN.

§ 29.02(a) (West 2011). Theft is the unlawful appropriation of property with the

intent to deprive the owner of the property. See id. § 31.03(a). A person commits

aggravated robbery when he commits robbery and uses or exhibits a deadly

weapon. See id. § 29.03(a)(2). By definition, a firearm is a deadly weapon. See

id. § 1.07(a)(17)(A). Accordingly, to support the judgment of guilt, Cardenas’s

judicial confession of aggravated robbery had to include theft of property, use of a

6

firearm, and placing a person in fear of imminent bodily injury or death. See

Menefee, 287 S.W.3d at 13.

Cardenas signed a document titled “Waiver of Constitutional Rights,

Agreement to Stipulate, and Judicial Confession.” The stipulated facts mirror the

allegations in the indictment, in that Cardenas confessed that he “did then and there

unlawfully, while in the course of committing theft of property owned by [the

complainant], and with intent to obtain and maintain control of the property,

intentionally and knowingly threaten and place [him] in fear of imminent bodily

injury and death, and [Cardenas] did then and there use and exhibit a deadly

weapon, namely, a firearm.” Cardenas waived “the right of trial by jury . . . [and]

the appearance, confrontation, and cross-examination of witnesses, and my right

against self-incrimination.” He specifically acknowledged, “I understand the

above allegations and I confess that they are true and that the acts alleged above

were committed on June 15, 2011,” the date alleged in the indictment. In addition,

he consented to “the oral and written stipulations of evidence in this case” and

acknowledged that he “read the indictment and committed each and every element

alleged.”

Thus, Cardenas signed a sworn written statement covering all elements of

the charged offense, admitting his culpability and acknowledging that the

allegations against him were true and correct. He also acknowledged,

7

independently of his guilty plea, that he “committed each and every element

alleged.” See Menefee, 287 S.W.3d at 13. When an appellant has provided a valid

judicial confession to all of the elements of the offense, the record need not provide

further proof. See id. at 13–14, 17–18.

Cardenas nevertheless argues that there is no evidence supporting the plea

because the page bearing his signature “has no connection to the specific charges

in this conviction.” The argument refers to the fact that the “Waiver of

Constitutional Rights, Agreement to Stipulate, and Judicial Confession” is a two-

page document, and the description of the charges appears on the first, unsigned,

page, while the signatures of Cardenas, the deputy district clerk, the defense

attorney, the prosecutor, and the trial judge all appear on the second page.

Cardenas asserts that there is “no connection” between the two pages of the

document, which appear in succession in the clerk’s record, “other than their

placement in the record.” The argument necessarily fails because the second page

bearing the signatures makes no sense without reference to the first. The first

sentence of the second page states: “I understand the above allegations and I

confess that they are true and that the acts alleged above were committed on

June 15, 2011.” That sentence is devoid of substance without reference to the

preceding page, which does contain a recitation of the allegations against

Cardenas. The other signatures on the page similarly reference the entirety of the

8

document. The defense attorney indicated by his signature that “this document”

was executed by Cardenas “knowingly and voluntarily and after I fully discussed it

and its consequences with him.” The assistant district attorney indicated by his

signature consent to and approval of “the above waiver of trial by jury,” which

similarly appeared on the foregoing page. The trial judge by her signature

confirmed that “[t]his document” was executed by the aforementioned parties “and

then filed with the papers of the case.” The clerk’s record is accompanied by the

Certificate of the Clerk, certifying that its contents are “true and correct copies of

all proceedings, instruments and other papers,” and Cardenas raises no objection to

the accuracy of the clerk’s record. See TEX. R. APP. P. 34.5.

We reject the implausible contention that the second page of the stipulation

and judicial confession signed by Cardenas in connection with his anticipated

guilty plea has no connection to the specific charges described on the first page of

that document. We hold that the evidence is legally sufficient to support

Cardenas’s conviction, and we overrule this issue.

II. Sufficiency of evidence to support court costs

In his second issue, Cardenas argues that the evidence is insufficient to

support the judgment against him assessing court costs of $294. He did not object

in any way to the amount of the costs in the trial court or the procedure by which

the amount of costs was determined, but no such objection was required to raise an

9

appellate challenge to the sufficiency of the evidence to support the award of costs.

See Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). We review the

sufficiency of the evidence to support the award of costs by viewing all record

evidence in the light most favorable to the award. See id. at 557.

The argument on appeal is premised entirely on the fact that when the

clerk’s record was originally prepared, no bill of costs was included despite the

fact that it was specifically requested. See TEX. R. APP. P. 34.5(b).

Article 103.001 of the Texas Code of Criminal Procedure provides:

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). Cardenas thus argues that

the record “is completely silent and the evidence insufficient as to what the court

costs were and if that amount is correct or appropriate.” In particular, Cardenas

contends that he is unable to determine if attorney’s fees were incorrectly included

as part of the $294 award of costs in the trial court’s judgment. See id.

art. 26.05(g) (West Supp. 2012) (requiring courts to consider a defendant’s ability

to pay before assessing “costs of the legal services provided” as court costs).

a. Supplementation of record with bill of costs

Chapter 103 of the Code of Criminal Procedure governs the collection of

costs and recordkeeping in criminal cases. The district clerk is required to “keep a

10

fee record,” which must contain “a statement of each fee or item of cost charged

for a service rendered in a criminal action or proceeding.” Id. art. 103.009(a)(1).

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.” Id. art. 103.006. No document constituting a bill of costs in this case

had been created, certified, signed, and sent to the court of appeals by the time

Cardenas filed his appellant’s brief, in which he objected to the sufficiency of the

evidence supporting an award of costs. Nevertheless, the rules of appellate

procedure provide that “[a] court of appeals must not affirm or reverse a judgment

or dismiss an appeal for formal defects or irregularities in appellate procedure

without allowing a reasonable time to correct or amend the defects or

irregularities.” TEX. R. APP. P. 44.3. Moreover, we are specifically authorized to

direct the trial court clerk to supplement the record with any relevant omitted item.

TEX. R. APP. P. 34.5(c)(1), (3). Accordingly, based upon these authorities, and to

facilitate our review, we ordered the trial court clerk “to prepare, certify, and file a

supplemental record containing a bill of costs,” and in the event no bill of costs

then existed, we ordered “the trial court clerk or an officer of the court . . . to

11

prepare a bill of costs for inclusion in the supplemental record.” 1 Cardenas filed a

written objection to our order.2

Cardenas first objected that this court should not have ordered a

supplemental record containing a bill of costs, arguing that the Fourteenth Court of

Appeals, in Johnson v. State, recently held in a similar circumstance that a

document created after the judgment was rendered cannot be considered on

appeal. 3 We note, however, that in Johnson no party apparently argued, and the

1

Cardenas argues that “[t]he plain language of 103.006 references internal

documentation between different courts” and is “different from the cost bill

contemplated by 103.001.” We disagree and find no basis in the code for

Cardenas’s suggestion that different bills of costs are contemplated by

articles 103.001 and 103.006. Cardenas does not address the fact that article

103.006 expressly applies to the circumstance in which “a criminal action or

proceeding . . . is appealed,” as is the case in this direct appeal. TEX. CODE

CRIM. PROC. ANN. art. 103.006. Even more critically, Cardenas has

presented no argument about the effect of appellate rule 44.3, discussed

above, and he presents no argument that we have misapplied that rule by

requesting correction of a defect in appellate procedure. See TEX. R. APP. P.

44.3.

2

We note that the State has also taken the position that we lack authority to

order the district clerk to prepare a bill of costs and provide it to us as a

supplemental record. However, the State’s position in this regard is

expressly predicated on its contention that Cardenas has waived the right to

challenge the amount of court costs on direct appeal by failing to preserve

error in the trial court. We reject this suggestion as inconsistent with

controlling authority of the Court of Criminal Appeals. See Mayer v. State,

309 S.W.3d 552, 556 (Tex. Crim. App. 2010).

3

See Johnson v. State, 389 S.W.3d 513, 515 n.1 (Tex. App.—Houston [14th

Dist.] 2012, pet. filed). As partial explanation for its decision to disregard

post-argument supplemental documentation of the court costs at issue,

12

Fourteenth Court of Appeals did not address, the effect in these circumstances of

article 103.006 and appellate rules 34.5 and 44.3, as described above and

specifically identified in our order. The reasoning reflected in Johnson therefore is

not dispositive of these considerations.

Cardenas’s objection also specifically addressed Rule 34.5(c), arguing

without any other authority that this rule “does not contemplate the creation of a

document.”4 We note, however, that the text of Rule 34.5(c) also does not exclude

Johnson relied upon Chambers v. State, 194 S.W.2d 774, 775 (Tex. Crim.

App. 1946), and Lamb v. State, 931 S.W.2d 611, 613 (Tex. App.—Amarillo

1996, pet. ref’d), for the proposition that, because there was “no indication

that this printout was ever brought to the attention of the trial judge,” such

documents cannot be considered on appeal. See Johnson, 389 S.W.3d at

515–16 nn. 1, 3. We do not question that general proposition, but for the

reasons explained in the main text, we find it to be inapplicable to these

procedural circumstances.

4

This court’s prior precedents do not foreclose the possibility, pursuant to

Rule 34.5(c), of ordering the creation of a document that is otherwise

required by a law or rule governing the transfer of a case from a trial court to

the appellate court. Cardenas relies on Roventini v. Ocular Sciences, Inc.,

111 S.W.3d 719 (Tex. App.—Houston [1st Dist.] 2003, no pet.), and Barker

CATV Const., Inc. v. Ampro, Inc., 989 S.W.2d 789 (Tex. App.—Houston

[1st Dist.] 1999, no pet.), to argue otherwise. But neither of these cases

involved the correction of a defect in procedure in order to correct a

remediable error, as authorized by Rules 44.3 and 44.4. Both cases are

readily distinguishable on their facts. Both were restricted appeals from

civil judgments. See generally TEX. R. APP. P. 30. One requirement of a

restricted appeal is that error must be apparent on the face of the record.

See, e.g., Roventini, 111 S.W.3d at 721; Barker CATV, 989 S.W.2d at 791.

In Roventini, the court noted that the authorization of a supplemental record

in Rule 34.5(c) does not mean that the appellate court will be compelled to

consider the supplemental materials, as they may not be relevant. See

13

the possibility of supplementation with new documents, the creation of which is

otherwise required by law, and article 103.006 does contemplate that a bill of costs

shall be certified, signed, and sent upon the appeal of a criminal action, which

necessarily occurs after the entry of a final judgment. 5

Finally, Cardenas asserted that “[a] newly created bill of costs fails to fulfill

due process,” relying again upon Johnson and also on Harrell v. State, 286 S.W.3d

315 (Tex. 2009). Johnson does not make any express reference to due-process

considerations. Harrell is procedurally distinguishable because it was a civil

proceeding filed by a prison inmate who challenged the withdrawal of funds from

Roventini, 111 S.W.3d at 726. Cardenas quotes Barker CATV for the

proposition that “rule 34.5(c) does not permit the record in a restricted

appeal to be supplemented unless it is clear that the item to be considered

was before the trial court when it rendered the default judgment,” but the

next sentence in the opinion explains that this rule “is consistent with the

‘face of the record’ limitations” of a restricted appeal. Barker CATV, 989

S.W.2d at 795. These cases simply do not address the question presented by

this appeal, and they certainly do not foreclose supplementation for the

reasons described in this opinion.

5

Cardenas suggests that a document that had not been created at the time of

the judgment cannot be an “omitted item” for purposes of Rule 34.5. The

argument does not address or otherwise account for Rule 44.3, which

expressly authorizes corrections and amendments to address “defects or

irregularities” of appellate procedure. TEX. R. APP. P. 44.3. We further note

the directive that “A court of appeals must not . . . reverse a judgment . . . if:

(1) the trial court’s erroneous action or failure . . . to act prevents the proper

presentation of a case to the court of appeals; and (2) the trial court can

correct its . . . failure to act.” TEX. R. APP. P. 44.4(a). If such circumstances

exist, “the court of appeals must direct the trial court to correct the error,”

and then the court “will then proceed as if the erroneous action or failure to

act had not occurred.” TEX. R. APP. P. 44.4(b).

14

his trust account to pay court costs, but did not challenge the amount of costs

assessed. Harrell, 286 S.W.3d at 316–17. In contrast, this is a direct criminal

appeal that does purport to challenge the assessment of costs. A contemporary

objection in the trial court is not required to raise such an issue on direct appeal,

see Mayer, 309 S.W.3d at 555–56, so Cardenas was not procedurally prejudiced by

his alleged inability to raise his objections in the trial court. Moreover, despite the

lack of a written bill of costs at the time of the entry of judgment, completely apart

from the availability of direct appeal, Cardenas also has been provided a separate

procedural avenue to seek correction of any error in the award of costs. See 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 costs.”). 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. The ability to raise this objection for the first time on

appeal and the availability of the article 103.008 review process both demonstrate

that Cardenas was not entirely deprived of due process because of his alleged

inability to object to the bill of costs at sentencing in this case.

15

Accordingly, we overrule Cardenas’s objections to the supplementation of

the record.

b. Sufficiency of bill of costs

We measure the sufficiency of the evidence to support the award of costs by

viewing all of the record evidence in the light most favorable to the award. See

Mayer, 309 S.W.3d at 557. In response to our order, the district clerk filed a

document which on its face appears to have been generated by the Harris County

Clerk’s Justice Information Management Systems, commonly known as JIMS. 6

6

Cardenas objected to the form of the bill of costs on the basis that it was not

a “certified copy of a signed cost bill” and therefore fails to conform to the

formal requirements of the Code of Criminal Procedure. See TEX. CODE

CRIM. PROC. ANN. art. 103.001 (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”). However, the document has 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 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). The entire document, including the

signed certification of the district clerk, was filed as a supplemental record in

the court of appeals, supported by a separate certification that the

documentation of costs is constituted of “true and correct copies of all

proceedings, instruments, and other papers specified by [TEX. R. APP.

P. 34.5(a)] and matter designated by the parties pursuant to [TEX. R. APP.

P. 34.5(b)] in Cause No. 1309968, styled JOSE JUAN CARDENAS vs. The

State of Texas in said court.” We conclude that the documentation filed at

our request by the district clerk as a supplemental record does substantially

satisfy article 103.001, in that it 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.”7 See TEX.

CODE CRIM. PROC. ANN. art. 102.005(a) (West 2011) (“A defendant

16

To the extent this document had not been reduced to a hard-copy printout and

thereby made part of the clerk’s record prior to the entry of judgment in this case,

we nevertheless consider this document as evidence of the record that was

available to the court and to the parties prior to the entry of judgment, which we

review in the light most favorable to the award. See Mayer, 309 S.W.3d at 557.

The document, entitled “Cost Bill Assessment,” itemized the various costs

assessed in Cardenas’s case. The costs, many of which were assessed pursuant to

rules of criminal procedure or statutory directives applicable to any conviction of a

felony offense in a district court, are itemized on two pages. The first page lists

various costs and a subtotal of $120 of costs, including:

$40 “clerks fee”7

$75 “sheriffs fee”8

+ $5 “security fee” 9

$120 subtotal

convicted of an offense in a county court, a county court at law, or a district

court shall pay for the services of the clerk of the court a fee of $40.”).

7

See TEX. CODE CRIM. PROC. ANN. art. 102.005(a) (West 2011) (“A

defendant convicted of an offense in a county court, a county court at law, or

a district court shall pay for the services of the clerk of the court a fee of

$40.”).

8

See generally id. art. 102.011 (fees for services of peace officers).

9

See TEX. CODE CRIM. PROC. ANN. art. 102.017(a) (“A defendant convicted

of a felony offense in a district court shall pay a $5 security fee as a cost of

court.”).

17

The first page also lists the following costs which evidently are component parts of

the $75 “sheriffs fee”10:

$50 “serving capias”11

$10 “taking: 01 bonds” 12

$5 “commitment” 13

+ $5 “arrest w/o warrant/capias” 14

$75

10

Cardenas argues 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.”). He 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 chargeable to a defendant convicted of a crime. He 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.

11

See id. art. 102.011(a)(2) (“A defendant convicted of a felony or a misdemeanor

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

officer . . . $50 for executing or processing an issued arrest warrant, capias, or

capias pro fine . . . .”). The appellate record reflects that an alias capias issued in

the case on November 30, 2011.

12

See id. art. 102.011(a)(5) (“A defendant convicted of a felony or a misdemeanor

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

officer . . . $10 for taking and approving a bond and, if necessary, returning the

bond to the courthouse . . . .”). The appellate record reflects that a bond in the

amount of $30,000 was approved on October 7, 2011 and filed the next day.

13

See id. art. 102.011(a)(6) (“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 . . . .”). The appellate record reflects that

a felony commitment was issued on June 16, 2011.

14

See id. art. 102.011(a)(1) (“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 . . . making an arrest without a warrant . . . .”). The appellate

record reflects Cardenas was arrested on June 15, 2011.

18

The second page carries forward the $120 subtotal from the previous page

and lists the following additional costs, culminating in $294 as the “total amount

owed”:

$120 “page 1 subtotal”

$133 “consolidated court cost”15

$4 “jury reimbursement fee”16

$25 “DC records preservation” 17

$2 “support of indg defense” 18

$6 “support judiciary fee08” 19

15

See TEX. LOC. GOV’T CODE ANN. § 133.102(a)(1) (West 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 . . . .”); see also TEX. GOV’T CODE ANN. § 102.021(1)

(West Supp. 2012).

16

See TEX. CODE CRIM. PROC. ANN. art. 102.0045(a) (“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.”). The appellate record contains no

indication that the charged offense of aggravated robbery related to a pedestrian or

the parking of a motor vehicle.

17

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.”).

18

See TEX. LOC. GOV’T CODE ANN. § 133.107(a) (“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.”); see also supra note 16.

19

See id. § 133.105(a) (West 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.”); see also supra note 16.

19

+ $4 “court technology fund” 20

$294 “total amount owed”

These fees and costs total $294, the same amount indicated in the judgment. The

records provided by the district clerk demonstrate the itemization of these costs

without any assessment for Cardenas’s attorney’s fees.

Since the supplementation of the record, Cardenas has not offered any

argument that any of the identified costs are unauthorized, inapplicable, or

otherwise improper. Indeed, as detailed above, each assessed cost is authorized by

statute or rule, and the circumstances giving rise to each cost are confirmed by the

record.21 Instead of challenging any particular cost, Cardenas has filed several

20

See TEX. CODE CRIM. PROC. ANN. art. 102.0169(a) (“A defendant convicted of a

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

technology fee as a cost of court.”).

21

Cardenas does object to our reliance upon docket sheet entries which

correspond to the events and circumstances giving rise to the various fees

assessed by the clerk as court costs. He contends that “[p]recedent from this

court has held that docket sheets are not to be considered as evidence on

appeal,” relying on In re Bill Heard Chevrolet, Ltd., 209 S.W.3d 311 (Tex.

App.—Houston [1st Dist.] 2006, orig. proceeding). That very case describes

some circumstances in which a docket sheet may be considered as evidence.

See id. at 315 (“[D]ocket-sheet entries have, along with other evidence and

under limited circumstances, supplied proof that the trial court orally

rendered judgment on a certain date. [¶] The trial court’s notation on the

docket sheet can sometimes be used to support the contention that judgment

was orally rendered on a certain date.” (internal citations omitted)). It is true

that docket entries are not fully sufficient to properly memorialize and

document certain trial court rulings, and in certain circumstances they may

not constitute sufficient evidence of the matters reflected therein. In this

procedural posture, however, we conclude that in the absence of

contradictory information, and without prejudice to collateral proceedings

20

postsubmission letters asserting the impropriety of permitting the record to be

supplemented with itemization of the costs by means of a document created after

the entry of judgment. Premised upon his contention that we may not consider the

supplemental record, Cardenas has urged that we follow the precedents of other

courts of appeals which have modified judgments to delete references to costs

when the record did not include a bill of costs. In the previously discussed

Johnson case, the Fourteenth Court of Appeals struck a trial court’s assessment of

“a specific dollar amount as court costs” because there was “no evidence in the

record” to support it. 22 Similarly, in Tafolla v. State, the Texarkana court of

appeals reversed an award of costs, stating that “[a]bsent a certified bill of costs,

the record is insufficient to support the order of court costs.” 23 Finally, in Solomon

pursuant to article 103.008 to correct errors, appropriate docket entries may

be sufficient evidence, viewed in the light most favorable to the award, to

justify the assessment of statutory court costs in a criminal proceeding.

22

Johnson, 389 S.W.3d at 517. In assessing the sufficiency of the evidence, the

Fourteenth Court relied on Mayer for the proposition that “sufficiency of the

evidence to support assessments of costs contained within judgments may be

directly appealed without the necessity of having preserved the issue below.”

Johnson, 389 S.W.3d at 517 (citing Mayer, 309 S.W.3d at 555). On the

appellant’s motion, the court ordered the trial court clerk to supplement the record

with a bill of costs, and the clerk declined to do so, explaining that no bill of costs

existed. Id. The Fourteenth Court noted, “In the face of a sufficiency challenge,

an order to supplement the record, and a complete lack of evidence supporting the

trial court’s assessment of costs, we will not presume the assessment of costs was

accurate.” Id.

23

Tafolla v. State, No. 06-12-00122-CR, 2012 WL 6632767, at *1 (Tex. App.—

Texarkana Dec. 20, 2012, no pet. h) (mem. op., not designated for publication). In

Tafolla, the appellant challenged the court’s judgment ordering him to pay costs

21

v. State, the San Antonio court of appeals modified an award of costs because the

appellant challenged the sufficiency of the evidence to support an increase in costs

imposed after he was originally placed on community supervision. 24 Finding no

evidence to support the increase, the court reformed the judgment to the original

amount of costs which were not challenged in the appeal.25

Because we ordered the supplementation of the appellate record to request a

bill of costs, the courts in Johnson, Tafolla, and Solomon confronted different

procedural circumstances, and their reasoning is inapplicable to the circumstances

before us. To the extent any party to those cases may have requested, or those

courts may have considered, the justifications for ordering a supplemental record

because the costs were not supported by the “statutorily required bill of costs.” Id.

The State conceded that no bill of costs was filed “outlining the breakdown of

court costs” in that case. Id. The opinion in Tafolla relied on both the Fourteenth

Court’s Johnson opinion and an unpublished opinion from this court, Levingston

v. State, No. 01-10-00561-CR, 2011 WL 5599973 (Tex. App.—Houston [1st

Dist.] Nov. 17, 2011, no pet.) (mem. op., not designated for publication). Notably,

Levingston did not involve the same issue of an absent bill of costs; rather, in that

case the State agreed with the appellant that the judgment imposing costs did not

match the trial court’s oral pronouncement of judgment. 2011 WL 5599973, at *3.

24

Solomon v. State, No. 04-12-00239-CR, 2012 WL 6604497, at *1 (Tex. App.—

San Antonio Dec. 19, 2012, no. pet.). Solomon argued that there was no evidence

to support a $300 increase in costs from those assessed at the time he was placed

on community supervision. Id. He also claimed there was no evidence that he had

an ability to pay such costs. Id.

25

The court of appeals relied on Mayer and Johnson in determining that a challenge

to the sufficiency of the evidence to support court costs need not be preserved and

in finding that there was no evidence in the record to support the $300 increase in

costs. Id. at *2.

22

as explained in this opinion, none of those courts explained why supplementation

is not authorized by article 103.006 and appellate rules 34.5 and 44.3, as we

believe it is.

The supplemental record demonstrates the basis for an award of fees and

costs totaling $294. No sum of money was improperly assessed as a cost for

attorney’s fees. Moreover, we emphasize that while the supplemental record has

significantly guided our analysis, even without that roadmap the clerk’s record

generated in the trial court through the entry of judgment demonstrates facts and

circumstances sufficient to justify $294 of costs as directed by the statutes and

rules referenced above. Accordingly, we conclude that Cardenas’s sufficiency

challenge on direct appeal lacks merit. 26 We further note that a specific procedure

26

The State places great weight on its contention that a trial court is not

required to include the amount of court costs in its written judgment of

conviction in a criminal case, and there is legal authority for the proposition

that the amount of costs need not be specified in order for the judgment to be

“effective.” Armstrong v. State, 340 S.W.3d 759, 766–67 (Tex. Crim. App.

2011); see also TEX. CODE CRIM. PROC. ANN. art. 42.01, § 1 (describing the

required contents of a criminal judgment). We note, however, that the Code

of Criminal Procedure requires the Office of Court Administration to

“promulgate a standardized felony judgment form” that conforms to the

requirements of article 42.01, section 1, and the Code further specifies that a

court entering a felony judgment “shall” use the promulgated form. TEX.

CODE CRIM. PROC. ANN. art. 42.01, § 4; see also id. art. 42.09, § 8(a) (“A

county that transfers a defendant to the Texas Department of Criminal

Justice under this article shall deliver to an officer designated by the

department: (1) a copy of the judgment entered pursuant to Article 42.01,

completed on a standardized felony judgment form described by Section 4 of

that article; [and] (2) a copy of any order revoking community supervision

23

separate and apart from a direct appeal from the final judgment exists for the

purpose of correcting an award of costs. See TEX. CODE CRIM. PROC. ANN. art.

103.008. Cardenas has presented no argument why this procedure is not sufficient

to provide an opportunity for review of an award of costs for his circumstance or

that of other convicted persons. Given the opportunities to challenge an award of

fees either on direct appeal, as Cardenas has done, or in a collateral proceeding, as

authorized by article 103.008, the clerk’s failure to prepare a bill of costs before

the entry of judgment simply does not rise to the level of a due process violation.

Accordingly, we overrule the challenge to the sufficiency of the evidence to

support the award of costs.

and imposing sentence pursuant to Section 23, Article 42.12, including: (A)

any amounts owed for restitution, fines, and court costs, completed on a

standardized felony judgment form described by Section 4, Article 42.01 . . .

.”); id. art. 42.16 (“If the punishment is any other than a fine, the judgment

shall specify it, and order it enforced by the proper process. It shall also

adjudge the costs against the defendant, and order the collection thereof as in

other cases.”).

With respect to the disputed award of court costs in this case, the form of the

trial court’s judgment does conform to the form promulgated by the Office

of Court Administration, which provides for the entry of a dollar amount of

“Court Costs.” See Office of Court Administration, Judgment of Conviction

by Court, available at

http://www.courts.state.tx.us/oca/felonyforms/Judgment_of_Conviction_by_

Court.doc.

24

Conclusion

We affirm the judgment of the trial court.

Michael Massengale

Justice

Panel consists of Justices Keyes, Massengale, and Brown.

Publish. TEX. R. APP. P. 47.2(b).

25