Summary
noting these statutes and holding trial court did not err by imposing $25 sheriff's fee when precept was in the record
Summary of this case from Guerin v. StateOpinion
NO. 03-15-00462-CR
03-22-2016
Darrell Wayne Love, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 73401, HONORABLE JOHN GAUNTT, JUDGE PRESIDINGMEMORANDUM OPINION
Darrell Wayne Love was charged with possession of a controlled substance in an amount less than one gram. See Tex. Health & Safety Code § 481.115(a) (setting out elements of offense), (b) (explaining that offense "is a state jail felony if the amount of the controlled substance possessed is, by aggregate weight, including adulterants or dilutants, less than one gram"). Love entered a plea of guilty to the charge, and the district court sentenced him to two years' imprisonment. See Tex. Penal Code § 12.35 (listing permissible punishment range for state jail felony). In its judgment, the district court imposed $311.00 in court costs. The district court's official bill of costs provided a breakdown of the various costs and specified that one of the costs was a sheriff's fee in the amount of $25. In a single issue on appeal, Love challenges the imposition of the sheriff's fee. We will affirm the district court's judgment of conviction.
DISCUSSION
In his issue on appeal, Love acknowledges that the sheriff's fee was authorized by statute but contends that the statue "does not support the amount actually assessed in this case, so the judgment should be reformed" to show a sheriff's fee of $11.74 instead of the $25 fee imposed.
The payment of court costs is mandated by the legislature. Houston v. State, 410 S.W.3d 475, 477 (Tex. App.—Fort Worth 2013, no pet.); see also Tex. Code Crim. Proc. arts. 42.15(a) (applying to judgments that impose fines and requiring defendant to pay fine as well as "costs to the state"), .16 (requiring payment of costs when "punishment is any other than a fine"). However, the defendant may only be obligated to pay court costs that are statutorily authorized. Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014); see also Tex. Code Crim. Proc. art. 103.002 (providing that "[a]n officer may not impose a cost for a service not performed or for a service for which a cost is not expressly provided by law"). Because court costs do not need to be incorporated into a judgment by reference or orally pronounced, defendants may challenge the imposition of court costs for the first time on appeal. Johnson, 423 S.W.3d at 389, 391. When a defendant challenges the imposition of court costs, reviewing courts determine if there is a basis for the costs but do not determine if sufficient evidence was offered during the trial to support each cost. Id. at 390.
The imposition of sheriff's fees is authorized by article 102.011 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 102.011. That provision authorizes the imposition of various types of fees for services provided by law-enforcement personnel when a defendant is convicted of a felony or a misdemeanor. See id. In particular, the provision authorizes the imposition of the following types of fees:
In his brief, Love contends that another provision authorizing the imposition of fees for services provided by law-enforcement officers does not apply to this case and asserts that due to various amendments made to that provision, the provision might not apply to anyone anymore. See Tex. Code Crim. Proc. art. 102.001. Given our resolution of this issue on appeal, we need not address these arguments. However, we do note that the deletion of various subarticles of the statute have rendered the viability of the remaining portions questionable because the remaining portions refer to and in some cases rely on the deleted subarticles.
(1) $ 5 for issuing a written notice to appear in court following the defendant's violation of a traffic law, municipal ordinance, or penal law of this state, or for making an arrest without a warrant;Id. art. 102.011(a). In addition to those fees, the provision also authorizes a court to charge a defendant "29 cents per mile for mileage required of an officer to perform a service listed in this subsection and to return from performing that service," including conveying a prisoner and "traveling to execute criminal process, to summon or attach a witness, and to execute process not otherwise described by this article." Id. art. 102.011(b); see also id. art. 102.011(c)-(e), (i) (allowing for imposition of additional fees for services provided by law-enforcement personnel).
(2) $ 50 for executing or processing an issued arrest warrant, capias, or capias pro fine . . .
(3) $ 5 for summoning a witness;
(4) $ 35 for serving a writ not otherwise listed in this article;
(5) $ 10 for taking and approving a bond and, if necessary, returning the bond to the courthouse;
(6) $ 5 for commitment or release;
(7) $ 5 for summoning a jury, if a jury is summoned; and
(8) $ 8 for each day's attendance of a prisoner in a habeas corpus case if the prisoner has been remanded to custody or held to bail.
In light of the above, Love contends that most of those provisions do not apply to this case because "no bond was issued, no witnesses summoned, [and] no jury trial was held," because this is not a habeas case, and because he was not "arrested pursuant to a warrant." Moreover, Love insists that the only fees applicable to this case are the $5 fee authorized for making an arrest without a warrant, see id. art. 102.011(a)(1), the $5 fee for services performed for commitment or release, see id. art. 102.011(a)(6), and the mileage fee for conveying a prisoner to jail, see id. art. 102.011(b)(1). Regarding the second fee that Love believes is warranted, he urges that only a single $5 fee is authorized because he was committed to jail once before trial and was not released on bail. Regarding the mileage fee, Love contends that this Court should take judicial notice of the distance between the "Bell County jails and . . . the Bell County Courthouse" and conclude that he owes "$1.74 for mileage."
Although Love correctly points out that article 102.011 does not specifically list a $25 fee, the provision does authorize the imposition of other fees for law-enforcement officers ranging from $5 to $50 and also authorizes the imposition of more than one type of fee. See id. art. 102.011. Moreover, although the bill of costs does not provide an itemized account of how the $25 amount was determined, Love has not pointed to any authority requiring that type of itemization. Cf. id. art. 103.009 (requiring "[e]ach clerk of a court, county judge, justice of the peace, sheriff, constable, and marshal shall keep a fee record"); Penright v. State, 477 S.W.3d 494, 501 (Tex. App.—Houston [1st Dist.] 2015, pet. filed) (explaining that "Sheriff's fee record" need not be included in appellate record). In addition, we do note that the clerk's record contains an affidavit for arrest seeking an arrest warrant to arrest Love for possession of a controlled substance and a "precept to serve copy of indictment" commanding a sheriff to deliver a copy of the indictment to Love, which arguably might have both served as a basis for a fee. See Tex. Code Crim. Proc. arts. 25.01 (providing that "[i]n every case of felony, when the accused is in custody, or as soon as he may be arrested, the clerk of the court where an indictment has been presented shall immediately make a certified copy of the same, and deliver such copy to the sheriff, together with a writ directed to such sheriff, commanding him forthwith to deliver such certified copy to the accused"), 102.011(a)(4) (authorizing fee "for serving a writ not otherwise listed in this article"), (a)(2) (authorizing fee for executing or processing arrest warrant). In light of the fact that the provision authorizes fees for law-enforcement personnel and allows for the imposition of more than one fee and given that the fees at issue in this case generally fall within the range of permissible fees outlined in that provision, we cannot conclude that the district court erred by imposing the sheriff's fee.
Although the record does contain an affidavit requesting the issuance of an arrest warrant, there is no arrest warrant in the record. In his brief, Love asserts that there was no arrest warrant in this case because he was arrested without a warrant after a police officer found him in possession of a controlled substance. As support for that, he refers to a portion of the transcript from the plea hearing in which he stated that he was arrested at a house when he was in possession of methamphetamine and marijuana. See Tex. Health & Safety Code §§ 481.115, .121. Even assuming that no arrest warrant was issued, executed, or processed, we would still be unable to conclude that the district court erred by assessing the sheriff's fee for the other reasons explained above. --------
For these reasons, we overrule Love's first issue on appeal.
CONCLUSION
Having overruled Love's sole issue on appeal, we affirm the district court's judgment of conviction.
/s/_________
David Puryear, Justice Before Justices Puryear, Goodwin, and Field Affirmed Filed: March 22, 2016 Do Not Publish