Opinion
05-22-00848-CR 05-22-00849-CR
06-20-2024
LADARYL JEWAYNE FISHER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 282nd Judicial District Court Dallas County, Texas Trial Court Cause Nos. F21-55489-S and F21-55488-S
Before Justices Partida-Kipness, Nowell, and Smith
ORDER
CRAIG SMITH JUSTICE
Appellant Ladaryl Jewayne Fisher was convicted by a jury of two counts, charged in separate indictments, of aggravated assault family violence causing serious bodily injury with a deadly weapon. See Tex. Penal Code Ann. § 22.02(b)(1). He was sentenced to thirty-five years' confinement for each offense.
Two of his three issues on appeal concern court costs. At the conclusion of the punishment phase, the trial court asked Fisher if his financial status had changed since he was appointed counsel. After Fisher responded, "[N]o," the trial court pronounced, "Pursuant to Article 42.15 of the Texas Code of Criminal Procedure, I'm gonna waive your court costs."
Article 42.15 provides that the trial court shall inquire during sentencing as to whether the defendant has sufficient resources to immediately pay the court costs assessed against him. Tex. Code Crim. Proc. Ann. art. 42.15(a-1). If the court determines that the defendant does not have sufficient resources to pay costs, the court shall determine whether the costs should be (1) required to be paid at a later date or in designated intervals, (2) discharged by performing community service if applicable, (3) waived in full or in part under article 43.091 or 45.0491,or (4) satisfied by any combination of the three. Id. Article 43.091 provides that the trial court may waive payment of costs if the court determines that the defendant is indigent. See id. art. 43.091(c)(1).
Article 45.0491 applies to municipal and justice courts and is substantively the same as article 43.091. Compare Tex. Code Crim. Proc. art. 45.0491 with Tex. Code Crim. Proc. art. 43.091.
Despite the trial court's oral pronouncement that it was waiving the defendant's court costs, the judgment in each case provides: "After having conducted an inquiry into Defendant's ability to pay, the Court Orders Defendant to pay the fine, court costs, and restitution, if any, as indicated above." The judgments also provide, "Upon release from confinement, the Court Orders Defendant to procced without unnecessary delay to the District Clerk's office, or any other office designated by the Court or the Court's designee, to pay or to make arrangements to pay any fine, court costs, and restitution due." And, in each case, Fisher was assessed $340 in court costs, as is reflected in the bills of costs and the judgments.
"[I]t is universally known that judgments in criminal cases, unlike those in civil cases, are generally prepared by clerks or other personnel, and are not normally submitted to the parties for approval as to form." Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.-Dallas 1991, pet. ref'd) (en banc). Furthermore, this Court, is frequently required to correct judgments of conviction due to clerical errors. See, e.g., JuarezAguilar v. State, Nos. 05-22-00533, 00534-CR, 2023 WL 5123303, at *6-8 (Tex. App.-Dallas Aug. 10, 2023, no pet.) (mem. op., not designated for publication).
Therefore, on our own motion, we abate these appeals and remand to the trial court so that it can clarify which action it intended. See Tex. R. App. P. 44.4; Henery v. State, 364 S.W.3d 915, 918-19 (Tex. Crim. App. 2012); Taylor v. State, 247 S.W.3d 223, 224 (Tex. Crim. App. 2008) (per curiam). We ORDER the trial court to conduct a hearing and to prepare written findings, specifically addressing whether the oral pronouncement or the written judgments reflect the trial court's ruling. If the oral pronouncement is what the trial court intended, we further ORDER the trial court to enter judgments nunc pro tunc correcting the cost section of the judgments, and any other clerical error that needs to be corrected, and ORDER the district clerk to correct the bills of costs. A supplemental reporter's record of the hearing and a supplemental clerk's record containing the trial court's findings, and any corrected judgment or bill of costs, shall be filed with this Court by July 26, 2024. See Tex. R. App. P. 34.5(c)(2). The appeal will be reinstated after the supplemental records are filed.
"A judgment nunc pro tunc is the appropriate avenue to make a correction when the court's records do not mirror the judgment that was actually rendered." Collins v. State, 240 S.W.3d 925, 928 (Tex. Crim. App. 2007).