Opinion
No. 05-16-00258-CR
03-21-2017
OSCAR XIQUIN-RAYMUNDO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 199th Judicial District Court Collin County, Texas
Trial Court Cause No. 199-81182-2010
MEMORANDUM OPINION
Before Justices Lang, Brown, and Whitehill
Opinion by Justice Lang
Oscar Xiquin-Raymundo appeals the trial court's judgment convicting him of aggravated assault. The trial court found Xiquin-Raymundo guilty, that he used a deadly weapon during the commission of the offense, and sentenced him to two years of imprisonment. Also, the trial court assessed court costs in the amount of $323.64. In his sole issue on appeal, Xiquin-Raymundo seeks modification of the judgment because the trial court erred when it imposed court costs and fees against him even though the trial court had already found him to be indigent. We conclude the trial court did not err. The trial court's judgment is affirmed.
I. PROCEDURAL CONTEXT
Xiquin-Raymundo was indicted for aggravated assault with a deadly weapon. The magistration notification states that Xiquin-Raymundo "announced that he [wa]s indigent and ha[d] requested court appointed counsel." As a result, defense counsel was appointed to represent him.
Xiquin-Raymundo's case was tried to the court. The trial court found him guilty and that he used a deadly weapon during the commission of the office. Also, the trial court sentenced him to two years of imprisonment. During the sentencing hearing, the trial court did not orally pronounce that it was assessing court costs against Xiquin-Raymundo. However, the trial court's judgment assessed court costs in the amount of $323.64. The bill of costs itemizes those costs as follows:
| Fees | Assessed |
|---|---|
| Approving Bond by Sheriff | 10.00 |
| Clerk Fee | 40.00 |
| Consolidated Court Costs | 133.00 |
| Court Technology Fund | 4.00 |
| Courthouse Security | 5.00 | 5.00 |
| Indigent Defense Fee | 2.00 |
| Judicial Support Fee | 6.00 |
| Jury Reimbursement Fee (SB 1704) | 4.00 |
| Mileage Cons #1 | 4.64 |
| Records Management Fee - County | 22.50 |
| Records Management Fee - District | 2.50 |
| Subpoena Service Cons #1 | 5.00 |
| Ticket or Arrest without Warrant | 5.00 |
| Time Payment | 25.00 |
| Warrants | 50.00 |
| Total | 323.64 |
II. IMPOSITION OF COURT COSTS
In issue one, Xiquin-Raymundo argues the trial court erred when it imposed court costs and fees against him even though the trial court had already found him to be indigent. He claims that his sentence violates the Texas Code of Criminal Procedure because: (1) the State did not seek a fine or the imposition of court costs; (2) when sentencing him, the trial court did not announce the imposition of a fine or court costs; and (3) when sentencing him, the trial court did not make a finding of indigence or non-indigence. The State responds that the trial court did not err because all of the court costs in the Bill of Costs are statutorily authorized.
A. Standard of Review
An appellate court reviews the assessment of court costs on appeal to determine if there is a basis for the cost. See Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). A defendant may raise the issue of court costs for the first time on appeal. See London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016); Perez v. State, 424 S.W.3d 81, 84-86 (Tex. Crim. App. 2014); Johnson, 423 S.W.3d at 391.
B. Applicable Law
The Texas Code of Criminal Procedure requires that a judgment order a defendant to pay court costs. TEX. CODE CRIM. PROC. ANN. arts. 42.15 (West Supp. 2016) (applicable when the punishment is only a fine), 42.16 (West 2006) (applicable when the punishment is something other than a fine); see Johnson, 423 S.W.3d at 389; Coronel v. State, 416 S.W.3d 550, 556 (Tex. App.—Dallas 2013, pet. ref'd). The two types of costs that a court may assess against a defendant are: (1) mandatory costs; and (2) discretionary costs. See Johnson, 423 S.W.3d at 389. Compare CRIM. PROC. arts. 102.001-102.022 (West 2006 & Supp. 2016) (a non-exhaustive list of various court costs a trial judge must impose if the certain conditions precedent are met), with CRIM. PROC. art 26.05(g) (West Supp. 2016) (requiring a court to determine whether a criminal defendant "has financial resources that enable him to offset in part or in whole the costs of the legal services provided"). A mandatory cost is one other than attorneys' fees that is a predetermined, legislatively mandated obligation imposed upon conviction. See Johnson, 423 S.W.3d at 389.
Costs are defined and mandated by statute. See Coronel, 416 S.W.3d at 556. They are not discretionary and, therefore, are not subject to approval or authorization by the trial court. See Coronel, 416 S.W.3d at 556. A bill of costs is a governmental record which documents those costs that have been assessed based on various factors including the crime for which the defendant is convicted, the procedural history of the defendant's case, and costs incurred in trying and convicting the defendant. E.g., TEX. GOV'T CODE ANN. § 102.041 (West 2013); see Coronel, 416 S.W.3d at 556.
Court costs listed in a certified bill of costs, are not part of the sentence, do not alter the range of punishment, and need not be orally pronounced or incorporated by reference in the judgment to be effective. See Johnson, 423 S.W.3d at 389; Armstrong v. State, 340 S.W.3d 759, 766 (Tex. Crim. App. 2011); Coronel, 416 S.W.3d at 556. Costs are compensatory in nature and are a nonpunitive recoupment of the costs of judicial resources expended in connection with the trial of the case. See Armstrong, 340 S.W.3d at 766; Coronel, 416 S.W.3d at 556. Unlike the statute governing the award of attorneys' fees, the statutes governing costs provide that a person convicted of an offense "shall pay" said costs without making any reference to the defendant's ability to pay. See Coronel, 416 S.W.3d at 556. Compare GOV'T §§ 102.021 (West Supp. 2016) (listing the costs a convicted person "shall pay"), 102.041 (listing the fees the clerk of the district court "shall" collect) with CRIM. PROC. art. 26.05(g) (explicitly conditions trial court's authority to order defendant to pay attorneys' fees on defendant's ability to pay).
C. Application of the Law to the Facts
First, Xiquin-Raymundo argues his sentence violates the Texas Code of Criminal Procedure because the State did not seek a fine or the imposition of court costs. However, the costs are defined and mandated by statute. See Coronel, 416 S.W.3d at 556. They are not discretionary. As a result, a motion or request by the State is not required and the imposition of the costs are not subject to approval or authorization by the trial court. See Coronel, 416 S.W.3d at 556 ("[C]ourt costs are mandated by statute; they are not discretionary and therefore, are not subject to approval or authorization by the trial court.").
Second, Xinquin-Raymundo claims that, when sentencing him, the trial court did not announce the imposition of a fine or court costs. There is no requirement that the court costs listed in a certified bill of costs be orally pronounced. See Johnson, 423 S.W.3d at 389; Armstrong, 340 S.W.3d at 766; Coronel, 416 S.W.3d at 556.
Finally, Xiquin-Raymundo argues that, when sentencing him, the trial court did not make a finding of indigence or non-indigence. He contends that the case law addressing the assessment of court-appointed attorneys' fees against an indigent defendant should be applied to the assessment of court costs against him. Specifically, he points to the Texas Court of Criminal Appeals's opinion in Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010) and this Court's memorandum opinion in Michael v. State, No. 05-12-00895-CR, 2013 WL 1729280 (Tex. App.—Dallas Apr. 22, 2013, no pet.) (mem. op., not designated for publication). The State argues that Xiquin-Raymundo's reliance on the case law addressing the imposition of attorneys' fees without a finding during sentencing that the defendant is no longer indigent is misplaced because, in this case, "no attorney's fees appear in the Bill of Costs." We agree with the State and decline to extend the holdings in Mayer and Michael, relating to the imposition of attorneys' fees in the absence of evidence demonstrating the defendant is no longer indigent, to the imposition of the costs defined and mandated by statute.
We conclude the trial court did not err when it imposed court costs and fees against Xiquin-Raymundo even though the trial court had already found him to be indigent. Issue one is decided against Xiquin-Raymundo.
III. CONCLUSION
The trial court did not err when it imposed court costs and fees against Xiquin-Raymundo.
The trial court's judgment is affirmed.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE Do Not Publish
TEX. R. APP. P. 47 160258F.U05
JUDGMENT
On Appeal from the 199th Judicial District Court, Collin County, Texas
Trial Court Cause No. 199-81182-2010.
Opinion delivered by Justice Lang. Justices Brown and Whitehill participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 21st day of March, 2017.