Opinion
NO. 12-17-00030-CR
08-23-2017
GEORGE LYNN TARVER, JR., APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 114TH JUDICIAL DISTRICT COURT SMITH COUNTY , TEXAS
MEMORANDUM OPINION
George Lynn Tarver appeals his conviction for possession of a controlled substance. In a single issue, Appellant contends the imposition of court costs is not supported by the record. We modify and affirm as modified.
BACKGROUND
Appellant was charged by indictment with possession of less than one gram of a controlled substance. Pursuant to a plea agreement, Appellant pleaded "guilty" and the trial court placed him on deferred adjudication community supervision for three years.
See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2017).
On November 23, 2016, the State filed a motion to adjudicate guilt, which included a request to revoke Appellant's community supervision. Appellant pleaded "true" to the State's allegations that he violated certain conditions of his community supervision. Following a hearing, the trial court found these allegations to be "true," revoked Appellant's community supervision, found him "guilty" of possession of a controlled substance, and sentenced him to eighteen months confinement and ordered court costs to be paid.
While on community supervision, Appellant paid toward the balance of the court costs imposed in the trial court's order of deferred adjudication. The judgment adjudicating guilt assessed $280 in court costs. The bill of costs shows that the original amount of court costs is $280, but that the remaining balance is $30.
SUFFICIENCY OF THE EVIDENCE SUPPORTING COURT COSTS
In his sole issue, Appellant argues that the trial court erred by imposing court costs that were not supported by the bill of costs and by ordering the court costs to be withdrawn from his inmate trust account. Standard of Review and Applicable Law
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 sufficiency 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); Cardenas v. State , 403 S.W.3d 377, 382 (Tex. App.-Houston [1st Dist.] 2013), aff'd, 423 S.W.3d 396 (Tex. Crim. App. 2014). Requiring a convicted defendant to pay court costs does not alter the range of punishment, is authorized by statute, and is generally not conditioned on a defendant's ability to pay. See TEX. CODE CRIM. PROC. ANN. art. 42.16 (West 2006); Armstrong , 340 S.W.3d at 767; see also Johnson v . State , 405 S.W.3d 350, 353 (Tex. App.—Tyler 2013, no pet.). Analysis
The judgment adjudicating guilt and assessing $280 in court costs also includes a document identified as "Attachment A Order to Withdraw Funds," which states that Appellant has incurred "[c]ourt costs, fees and/or fines and/or restitution" in the amount of $280.
Appellant contends, and the State concedes, that the trial court's judgment and withholding order should be modified to reflect court costs in the amount of $30. We have reviewed the items in the bill of costs, and all listed costs and fees are authorized by statute. See, e.g., Ireland v . State , No. 03-14-00616-CR, 2015 WL 4914982, at *3 n.3 (Tex. App.—Austin Aug. 12, 2015, no pet.) (mem. op., not designated for publication) (identifying statutory sources for assessment of fees in bill of costs). Because some costs have already been paid, the evidence is insufficient to support the trial court's assessment of $280 in court costs as reflected in its judgment adjudicating guilt and withholding order. See Lack v . State , No. 12-13-00052-CR, 2013 WL 3967698, at *1 (Tex. App.—Tyler July 31, 2013, no pet.) (mem. op., not designated for publication) (modifying judgment to reflect costs actually owed); see, e.g., Muller v . State , No. 12-12-00269-CR, 2013 WL 3243522, at * 2-3 (Tex. App.—Tyler June 25, 2013, no pet.) (mem. op., not designated for publication) (modifying judgment to reflect payment of properly assessed costs); Johns v. State , Nos. 07-10-0303-CR, 07-10-0304-CR, 2011 WL 832837, at *2 (Tex. App.—Amarillo Mar. 10, 2011, pet. ref'd) (mem. op., not designated publication) (modifying judgment to reflect that properly assessed costs were paid in full). The evidence is sufficient, however, to support the imposition of $30 in court costs. Accordingly, we sustain Appellant's sole issue on appeal.
DISPOSITION
Having sustained Appellant's sole issue, we modify the trial court's judgment to reflect that the amount of court costs is $30. See TEX. R. APP. P. 43.2(b). We also modify Attachment A to delete the assessment of $280 and to state that the total amount of "[c]ourt costs, fees and/or fines and/or restitution" is $30. See Ballinger v . State , 405 S.W.3d 346, 350 (Tex. App.—Tyler 2013, no pet.). We affirm the judgment of the trial court as modified. See TEX. R. APP. P. 43.2(b).
JAMES T. WORTHEN
Chief Justice Opinion delivered August 23, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
Appeal from the 114th District Court of Smith County, Texas (Tr.Ct.No. 114-0419-16)
THIS CAUSE came on to be heard on the appellate record and the briefs filed herein; and the same being inspected, it is the opinion of the Court that the trial court's judgment below should be modified and, as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the trial court's judgment below be modified to delete the assessment of $280.00 and to state that the total amount of "[c]ourt costs, fees and/or fines and/or restitution" is $30.00; and as modified, the trial court's judgment is affirmed; and that this decision be certified to the trial court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.