Davila
v.
State

Court of Appeals of Texas, Houston (1st Dist.).Dec 17, 2014
441 S.W.3d 751 (Tex. App. 2014)

No. 01–12–01174–CR.

2014-12-17

Oscar Gerardo DAVILA, Appellant v. The STATE of Texas, Appellee.

Sarah V. Wood, Assistant Public Defender, Harris County, Houston, TX, for Appellant.


Affirmed.

Sharp, J., dissented.

Sarah V. Wood, Assistant Public Defender, Harris County, Houston, TX, for Appellant. Devon Anderson, District Attorney, Eric Kugler, Assistant District Attorney, Harris County, Houston, TX, for Appellee.
Panel consists of Justices JENNINGS, SHARP, and BROWN.

OPINION


HARVEY BROWN, Justice.

We originally issued our memorandum opinion in this appeal on May 15, 2014. We withdraw our previous memorandum opinion and judgment, and substitute this opinion and judgment in their place.

Oscar Davila pleaded guilty to possession with intent to deliver more than 400 grams of cocaine, and the trial court assessed punishment at 25 years' confinement. In two issues, Davila contends that the trial court erred by (1) overruling his motion to suppress evidence collected during a police search of his home and (2) assessing $294 in court costs that were unsupported by the record. We affirm.


Tex. Health & Safety Code Ann. § 481.112(f) (West 2010) (establishing criminal penalty for knowingly manufacturing, delivering, or possessing with intent to deliver more than 400 grams of controlled substance).

We have already concluded that the information from the confidential informant stated in the affidavit was sufficient for a magistrate to conclude that there was probable cause to search Davila's home. Because the affidavit contained sufficient allegations that were independent of any tainted information, we conclude that the affidavit established a “fair probability” that cocaine would likely be found upon searching Davila's home. See Flores, 319 S.W.3d at 702.

Accordingly, the evidence collected was pursuant to a properly-granted search warrant and, therefore, we hold that the trial court did not err in denying Davila's motion to suppress.

We overrule Davila's first issue.

Court Costs

In his second issue, Davila argues that the trial court erroneously assessed $294 in court costs. He argues that there is no evidence to support the calculation of these costs.

A. Standard of review

A criminal defendant must pay certain statutorily mandated costs and fees, which vary depending on the type of offense, the underlying facts, and the procedural history of the case. See Tex. Loc. Gov't Code Ann.. § 133.102 (West Supp.2013) (listing court costs upon conviction). The district court clerk must keep a record of each fee or item of cost charged for a service rendered in a criminal action or proceeding. Tex.Code Crim. Proc. Ann. art. 103.009(a)(1) (West 2006). If a criminal action is appealed, an officer of the court must certify and sign a bill of costs and send it to the appellate court. Id. art. 103.006 (West 2006).

Court costs do not constitute a part of the guilt or sentencing of a criminal defendant; they are “a nonpunitive recoupment of the costs of judicial resources expended in connection with the trial of the case.” Johnson v. State, 423 S.W.3d 385, 390 (Tex.Crim.App.2014) (citation omitted); see also Armstrong v. State, 340 S.W.3d 759, 766–67 (Tex.Crim.App.2011). Therefore, we review the assessment of court costs to determine whether there is a basis for the cost; we do not apply an evidentiary-sufficiency review. Johnson, 423 S.W.3d at 390; see Cardenas v. State, 423 S.W.3d 396, 398 (Tex.Crim.App.2014).

B. Court costs for conviction of felony possession with intent to deliver 400 grams of cocaine

Davila argues that there is no evidence of how the costs were calculated and no evidence that the costs were available for review before the trial court entered its judgment.

When the record includes no bill of costs, under established precedent from this court, the JIMS “Cost Bill Assessment” meets the requirements of article 103.001 of the Texas Code of Criminal Procedure. See Tex.Code Crim. Proc. Ann. art. 103.001 (West 2006); Cardenas, 423 S.W.3d at 398. We consider the JIMS record evidence that both the trial court and the parties had constructive notice of court costs to be imposed before the judgment was entered. Cardenas, 423 S.W.3d at 398–99. We review the record to determine whether there is any basis to uphold the costs. Id.; Johnson, 423 S.W.3d at 390.

The first page of the “Cost Bill Assessment” lists several costs, including:

• $5.00 “commitment fee” ( See Tex.Code Crim. Proc. Ann. art. 102.011(a)(B)(6) (West Supp.2013) (“A defendant convicted of a felony or a misdemeanor shall pay ... $5 for commitment or release”)).


• $5.00 “release fee” ( See Tex.Code Crim. Proc. Ann art. 102.011(a)(B)(6) (West Supp.2013)).


• $5.00 “arrest without a warrant” ( See Tex.Code Crim. Proc. Ann. art. 102.011(a)(1) (West Supp.2013)).


• $40.00 “clerks fee” ( See Tex.Code Crim. Proc. Ann art. 102.005(a) (West 2006) (“A defendant convicted of an offense in [any court] ... shall pay for the services of the clerk of the court a fee of $40.”)).


• $15.00 “sheriffs fee” ( See Tex.Code Crim. Proc. Ann art. 102.011(d) (West Supp.2013)).


• $5.00 “security fee” ( See Tex.Code Crim. Proc. Ann. art. 102.017(a) (West 2006) (“A defendant convicted of a felony offense in a district court shall pay a $5 security fee as a cost of court.”)).


• $133.00 “consolidated court cost” ( See Tex. Local Gov't Code Ann. § 133.102(a)(1) (West Supp.2013) (“A person convicted of an offense shall pay as a court cost, in addition to all other costs ... $133 on conviction of a felony.”)).


• $4.00 “jury reimbursement fee” ( See Tex.Code Crim. Proc. Ann. art. 102.0045(a) (West Supp.2013) (“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 ....”)).


• $25.00 “district court records preservation” ( See Tex.Code Crim. Proc. Ann art. 102.005(f) (West 2006) (“A defendant convicted of an offense in a county court, a county court at law, or a district court shall pay a fee of $25 for records management and preservation services performed by the county....”)).


• $60.00 “drug court program fee” ( See Tex.Code Crim. Proc. Ann. art. 102.0178(a) (West Supp.2013) (“In addition to other costs on conviction imposed by this chapter, a person shall pay $60 as a court cost on conviction of an offense punishable as a Class B misdemeanor or any higher category of [listed] offense[s].”)).


• $2.00 “support of indigent defense” ( See Tex. Local Gov't Code Ann. § 133.107(a) (West Supp.2013) (“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 ....”)).


• $6.00 “support judiciary fee” ( See Tex. Local Gov't Code Ann. § 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.”)).


• $4.00 “court technology fund” ( See Tex.Code Crim. Proc. Ann. art. 102.0169(a) (West Supp.2013) (“A defendant convicted of a criminal offense in a county court, statutory county court, or district court shall pay a $4 county and district court technology fee as a cost of court.”)).


Based on the costs listed in the cost bill assessment, the record contains a sufficient basis for imposing court costs in the amount of $309. The record, thus, supports charging at least $294 in costs as directed by the statutes and rules referenced above. See Thomas v. State, No. 01–12–00487–CR, 445 S.W.3d 288, 292–94, 2013 WL 1163980, at *4 (Tex.App.-Houston [1st Dist.] Mar. 21, 2013, no pet.) (upholding court costs of $274 when bill of costs totaled $309 due in court costs).

Accordingly, we overrule Davila's second issue.

Conclusion

Having overruled both of Davila's issues, we affirm. Justice SHARP, dissenting. Dissent to follow.