Tyrin James Brown v. State

Opinion issued April 20, 2021.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-20-00306-CR

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TYRIN JAMES BROWN, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 264th District Court1

Bell County, Texas

Trial Court Case No. 79806

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Pursuant to its docket equalization authority, the Supreme Court of Texas

transferred this appeal from the Court of Appeals for the Third District of Texas to

this Court. See TEX. GOV’T CODE § 73.001 (authorizing transfer of cases). We are

unaware of any conflict between precedent of that court and that of this court on any

relevant issue. See TEX. R. APP. P. 41.3.

MEMORANDUM OPINION

Tyrin James Brown pleaded guilty without an agreed punishment

recommendation to aggravated sexual assault of a disabled individual. See TEX.

PENAL CODE § 22.021(a)(2)(C). The trial court sentenced him to 12 years’

imprisonment. On appeal, Brown argues that the court assessed unlawful and

unconstitutional court costs. The State concedes that the bill of costs is erroneous.

We modify the judgment to delete all court costs and affirm the judgment as

modified.

Procedural Background

On October 1, 2018, Brown sexually assaulted a disabled woman in the

bathroom of a fast-food restaurant. He pleaded guilty to aggravated sexual assault of

a disabled individual and was sentenced to 12 years’ imprisonment. See TEX. PENAL

CODE § 22.021(a)(2)(C). In pronouncing judgment, the court stated, “For the record,

I’m going to find that you are indigent and continue to be indigent. I’m not making

any allocation of costs.” The judgment reflected that the court did not impose any

fines, restitution, or court costs.

In August 2020, Brown’s counsel, noticing that the record did not include a

bill of costs, requested that the clerk’s record be supplemented to include the

document. The bill of costs added to the record assessed “Basic Court Costs” totaling

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$317, including a local consolidated court cost, a sheriff reimbursement fee, a state

consolidated court cost, and an administrative transaction reimbursement fee.

On appeal, Brown argues that he was erroneously and unconstitutionally

assessed court costs. The State concedes that the bill of costs is erroneous and agrees

that the trial court waived Brown’s obligation to pay costs. The State requests that

we modify the judgment and bill of costs to reflect that costs are waived entirely.

We modify the judgment to delete court costs and affirm the judgment as modified.

Analysis

The version of Article 43.091 of the Texas Code of Criminal Procedure

effective at the time of the offense permits a trial court to “waive payment of all or

part of a fine or costs imposed on a defendant” if the defendant is indigent. See

former TEX. CODE CRIM. PROC. art. 43.091.2 The record reflects that the trial court

determined that Brown was indigent and declined to assess costs against him.

Sometime after the judgment was entered, Brown was assessed costs when the bill

of costs was added to the record. A bill of costs need not be orally pronounced nor

incorporated by reference in the judgment to be effective. Armstrong v. State, 340

2

See Act of May 23, 2001, 77th Leg., R.S., ch. 1111, § 2, 2001 Tex. Sess. Law Serv.

Ch. 1111 (H.B. 2410); amended by Act of May 23, 2007, 80th Leg., R.S., ch. 1263,

§ 14, 2007 Tex. Sess. Law Serv. Ch. 1263 (H.B. 3060); amended by Act of May 26,

2017, 85th Leg., R.S., ch. 977, § 8, 2017 Tex. Sess. Law. Serv. Ch. 977 (H.B. 351);

amended by Act of May 28, 2017, 85th Leg., R.S., ch. 1127, § 7, 2017 Tex. Sess.

Law Serv. Ch. 1127 (S.B. 1913). Current version at TEX. CODE CRIM. PROC. art.

43.091 (amended 2019).

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S.W.3d 759, 766 (Tex. Crim. App. 2011) (concluding that court costs and attorney’s

fees are compensatory in nature and therefore do not need to be orally pronounced

or incorporated by reference into the judgment). Therefore, the State concedes that

the bill of costs erroneously but effectively imposes court costs on Brown. Since the

record reflects that the trial court waived costs based on Brown’s indigency, the bill

of costs is erroneous. We vacate the bill of costs and modify the judgment to include

the following special order: “No costs assessed against Tyrin James Brown due to

trial court’s finding of indigency.”.

Conclusion

Modified as described above, the trial court’s judgment is affirmed. All

pending motions are dismissed as moot.

Peter Kelly

Justice

Panel consists of Justices Kelly, Landau, and Hightower.

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

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