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Luis Gerardo Diaz v. The State of Texas
Third Court of Appeals, Austin, Texas
Indecency with a child by contact
Case Number: 03-17-00107-CR
Judge: Jeff Rose
Court: TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
The Honorable Stacey M. Soule
Description: The record reflects that Diaz was indicted on two counts of indecency with a child
by contact and that the State abandoned the second count at a pretrial hearing. Diaz proceeded to
trial where a jury convicted him. The court assessed Diaz’s punishment at eight years’ imprisonment
and ordered him to “pay all court costs in this case.” The judgment of conviction shows court costs
of $581. The certified bill of costs shows that the $581 total includes $80 for the district clerk’s fee.
This appeal followed.
In his only appellate issue, Diaz contends that the judgment reflecting $581 in court
costs should be modified because according to the bill of costs, it includes an $80 district clerk’s fee
when only $40 is authorized by statute. In Diaz’s view, he was assessed double the amount of the
statutorily authorized fee, and “this excess amount must be deleted from the judgment.” The State
responds that the $80 amount represents the $40 district clerk’s fee and the $40 jury fee, both of
which are statutorily authorized and supported by the record.
Court costs 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). Defendants convicted of felony offenses must pay certain statutorily mandated
costs and fees. Martinez v. State, 510 S.W.3d 206, 208 (Tex. App.—Houston [1st Dist.] 2016, no
pet.). Only statutorily authorized court costs may be assessed against a criminal defendant. Johnson,
423 S.W.3d at 389. We review a challenge to the assessment of court costs to determine if there is
a basis for the cost, and not whether sufficient evidence supports its imposition. See Johnson,
423 S.W.3d at 390; Martinez, 510 S.W.3d at 208, 209.
Here, the record provides a basis for the costs assessed. The record reflects, and Diaz
does not dispute, that he was convicted of an offense in district court. The imposition of a $40
district clerk’s fee is authorized by article 102.005(a) of the Texas Code of Criminal Procedure for
defendants convicted in district courts. See Tex. Code Crim. Proc. art. 102.005(a) (“A defendant
convicted of an offense in a . . . district court shall pay for the services of the clerk of the court a fee
of $40.”). Diaz incorrectly assumes that the $80 fee in the bill of costs consisted only of the district
clerk’s fee. Cf. id.; see Cook v. State, No. 10-12-00204-CR, 2014 Tex. App. LEXIS 2831, at *3–5
(Tex. App.—Waco Mar. 13, 2014, no pet.) (mem. op., not designated for publication) (rejecting
challenge to assessment of court costs, noting that although statutorily mandated fee assessments
were incorrectly listed to different line items, net result of costs imposed was same).
However, the record reflects, and Diaz does not dispute, that he was convicted by a
district court jury. A separate $40 jury fee is authorized by article 102.004 of the Texas Code of
Criminal Procedure for defendants convicted by a jury. Tex. Code Crim. Proc. art. 102.004(a) (“A
defendant convicted by a jury in a . . . district court shall pay a jury fee of $40.”). Although the
certified bill of costs shows that the jury fee was not listed as a separate line item from the district
clerk’s fee, Diaz cites no authority requiring such a level of specificity within the itemized bill of
costs. See, e.g., Love v. State, No. 03-15-00462-CR, 2016 Tex. App. LEXIS 2877, at *5 (Tex.
App.—Austin Mar. 22, 2016, no pet.) (mem. op., not designated for publication). Further, both the
district clerk’s fee and the jury fee were statutorily mandated by the Code of Criminal Procedure, and
both such fees were supported by this record. See Martinez, 510 S.W.3d at 209 (rejecting challenge
to assessment of costs because events reflected in record arguably might have served as basis for
imposition of complained-of costs).
We conclude that the record provides a basis for the full assessment of costs in the
judgment. See Johnson, 423 S.W.3d at 390; Martinez, 510 S.W.3d at 208, 209. We overrule Diaz’s
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