James Michael Sotelo v. the State of Texas

Opinion issued August 12, 2025

In The
Court of Appeals
For The

First District of Texas
————————————
NOS. 01-24-00562-CR
01-24-00567-CR
———————————
JAMES MICHAEL SOTELO, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cases 1715366 and 1720032

OPINION

The appellant was charged with murder1 and aggravated assault. 2 A jury found

him guilty as charged of murder, but acquitted him of aggravated assault and found

1
Trial Court Cause No. 1715366 (No. 01-24-00562-CR).
2
Trial Court Cause No. 1720032 (No. 01-24-00567-CR).
him guilty of the lesser-included offense of deadly conduct. The trial court assessed

punishment at forty years’ confinement for the murder and two years’ confinement

for the deadly conduct.

The appellant raises five points of error: One related to an alleged deficiency

in the indictment, one claiming ineffective assistance of counsel, and three related

to court costs. We modify the trial court’s judgment by striking the repetitive court

costs from the judgment in the deadly conduct case and, as modified, affirm.

Background

Because of the nature of the appellant’s claims, it is unnecessary to go into

detail regarding his offenses. For reasons that are unclear, the appellant fired thirteen

shots at his best friend, hitting him in the back eleven times. One bullet went through

a wall and hit the appellant’s brother in the head. The brother survived but the best

friend did not. The appellant testified the shooting was in self-defense.

Indictment Signature

In his first point the appellant complains that his indictments indicate they

were signed by the assistant foreman of the grand jury. The appellant directs us to

Code of Criminal Procedure Article 21.02, which lists among the “requisites of an

indictment” that an indictment “shall be deemed sufficient” if it meets nine criteria,

one of which is that “[i]t shall be signed officially by the foreman of the grand jury.”

Tex. Code Crim. Proc. Art. 21.02(9). The appellant argues the lack of the foreman’s

2
signature means his indictments were insufficient. The appellant argues that without

“sufficient” indictments, the trial court’s jurisdiction was never invoked and the

judgments are void.

The Court of Criminal Appeals has rejected the argument that the lack of the

foreman’s signature renders an indictment invalid. See Riney v. State, 28 S.W.3d

561, 566 (Tex. Crim. App. 2000) (citing article 21.02 and holding the “lack of a

signature is of no consequence in this matter, and is, in fact, not essential to the

validity of an indictment”); Tatmon v. State, 815 S.W.2d 588, 590 (Tex. Crim. App.

1991) (holding trial court did not abuse discretion in denying motion to quash based

on lack of foreman’s signature, reasoning that “the absence of [foreman’s] signature

did not adversely affect the validity of the indictment”); Owens v. State, 540 S.W.2d

324, 325 (Tex. Crim. App. 1976) (“The failure of the foreman of the grand jury to

sign the indictment does not vitiate that instrument. It is permissible therefore for

another grand juror to sign the indictment in his stead.” (citations omitted)).

The appellant criticizes the Court of Criminal Appeals’s reasoning on this

subject. Specifically, he argues that the Court failed to consider statutory change in

1966. But Tatmon addresses the statutory change. See 815 S.W.2d at 589–90. Even

if it did not, we are not free to disregard the direct holdings of the Court of Criminal

Appeals merely because a litigant or even this Court thinks they’re wrong. We

overrule the appellant’s first point.

3
Ineffective Assistance of Counsel

In his second point the appellant claims he received ineffective assistance of

counsel. In the statement of his point the appellant alleges trial counsel “fail[ed] to

know the range of punishment for murder.” In the body of his point, the appellant’s

complaint is that trial counsel requested community supervision during the

punishment phase, but, as the appellant correctly notes, Texas law does not currently

allow trial courts to suspend imposition of sentence for murder convictions. See TEX.

CODE CRIM. PROC. arts. 42A.054(2), 42A.056(3).

Assuming, arguendo, trial counsel’s performance was deficient, the appellant

has failed to direct us to any evidence in the record showing he was harmed by trial

counsel’s request for an illegally lenient sentence. To prevail on a claim of

ineffective assistance, a defendant must prove, by a preponderance of the evidence

not just that counsel’s actions fell below an objective standard of reasonableness, but

that the result of the proceeding would have been different but for counsel’s deficient

performance. Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984). “If it is

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

prejudice . . . that course should be followed.” Id. at 697. Ineffective-assistance

claims, including the showing of prejudice, must be firmly founded in the record.

Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002).

4
In his brief, the appellant argues he was harmed because counsel led him to

believe he was probation eligible for murder. As his only support for this, the

appellant points to applications for community supervision he filed before trial. The

State correctly notes, though, that motions for community supervision must be filed

before trial, meaning that at the time the appellant filed his motions it was still a

possibility for the jury to return verdicts that would make the appellant eligible for

community supervision (e.g., acquitting him of murder but convicting of the

aggravated assault, or convicting for a lesser included offense of murder). See TEX.

CODE CRIM. PROC. art. 42A.055(b). Nothing in the record supports the appellant’s

claim that his counsel misinformed him regarding his community supervision

eligibility.

The appellant claims his “belief of eligibility tainted the entire trial for

Appellant,” but he does not cite anything in the record showing how this supposed

belief affected anything. In Swinney v. State, the defendant was eligible for

community supervision only if he chose to have punishment assessed by the jury; he

chose instead to have the trial court assess punishment and, as here, his attorney

requested community supervision although it was not a possible punishment. 663

S.W.3d 87, 89–91 (Tex. Crim. App. 2022). The Court of Criminal Appeals rejected

Swinney’s ineffective-assistance claim, though, because, assuming trial counsel had

given Sweeney incorrect advice before he made his punishment election, Sweeney

5
did not produce evidence showing how, or even whether, the incorrect advice altered

his decision-making. Id. at 92.

Swinney controls here. The record does not show that any incorrect advice

from trial counsel altered any decision the appellant made. There is no record

evidence that the appellant’s decision to go to trial or his election to have the trial

court assess punishment was informed by an erroneous understanding of his

eligibility for probation if convicted. We overrule the appellant’s second point

because the appellant has not shown any prejudice from the allegedly ineffective

assistance.

Court Costs Points

A. Duplicate Costs

In his third point the appellant points out that he has been assessed duplicate

court costs for these two convictions. When a defendant is convicted of multiple

offenses in a single criminal action, each court cost or fee may be assessed only once

TEX. CODE CRIM. PROC. art. 102.073(a). Each cost should be assessed only for the

highest degree offense of conviction. TEX. CODE CRIM. PROC. art. 102.073(b). The

appellant asks us to strike the repetitive costs from one of the convictions and the

State agrees to this remedy. We grant the appellant’s requested relief. We modify

the judgment for the deadly conduct conviction (cause 1720032) to reflect $0 in

6
court costs and we modify the bill of cost to show consolidated state and local court

costs as $0.

B. Witness Summoning

In his fourth point the appellant claims he was incorrectly assessed witness

summoning fees for witnesses who were not summoned. He asks us to reduce the

amount of fees accordingly.

A convicted defendant is required to pay a $5 reimbursement fee for each

witness summoned by a peace officer. TEX. CODE CRIM. PROC. art. 102.011(a)(3).

Additionally, the defendant must pay a reimbursement fee of 29¢ per mile a peace

officer travels to summon a witness, as well as reimbursement for all necessary

meals and lodging the officer incurred summoning witnesses. TEX. CODE CRIM.

PROC. art. 102.011(b).

The bill of cost in this case shows $835 assessed for “LEA – Summon

Witness.” In his brief the appellant figures that at $5 per subpoena there must have

been 167 subpoenas, but the record contains 21 subpoenas that were not executed.

The appellant asks us to reduce the assessed LEA – Summon Witness costs by $105.

By our count the record contains 21 unserved subpoenas and 147 served subpoenas.

If we followed the appellant’s formula and assumptions—that he is responsible for

witness summoning fees only to the degree the appellate record contains served

7
subpoenas—we would reduce the assessed costs for summoning witnesses to $735.

We do not believe, however, that is the correct analysis.

The appellant and the State agree that, despite the existence of Code of

Criminal Procedure article 103.008, which allows defendants to complain about

incorrect court costs in the trial court, where facts can be developed easily, the Court

of Criminal Appeals has declared that defendants may raise this sort of arithmetical

claim of error for the first time on appeal. They direct us to Johnson v. State, 423

S.W.3d 385 (Tex. Crim. App. 2014) and London v. State, 490 S.W.3d 503 (Tex

Crim. App. 2016). After reviewing these cases, we do not believe they allow a

defendant to go behind the face of a bill of cost as the appellant is attempting to do.

In Johnson, the judgment assessed $234 in court costs. Inconveniently, the

appellate record contained no bill of cost. On appeal, Johnson complained the

evidence was insufficient to support the assessed amount. The district clerk then

supplemented the record with a bill of cost, but the Fourteenth Court declined to

consider the supplemental bill of cost, reasoning it was inappropriate to consider it

on appeal because it had never been presented to the trial court. The Fourteenth Court

deleted the assessed costs from the judgment “[b]ecause there was no evidence in

the record to support the trial court’s assessment of a specific dollar amount as court

costs.” Johnson v. State, 389 S.W.3d 513, 515 n.1, 517 (Tex. App.—Houston [14th

Dist.] 2012), aff’d as modified, 423 S.W.3d 385 (Tex. Crim. App. 2014).

8
On discretionary review the Court of Criminal Appeals made a variety of

holdings that would influence the next decade of court-cost litigation. Two of these

holdings are relevant here.

The State had argued Johnson forfeited his complaint by not raising it in the

trial court. The court rejected the State’s preservation argument and held that a

defendant may complain about court costs for the first time on appeal if he had not

been presented with a bill of costs in open court and given an opportunity to object.

Johnson, 423 S.W.3d at 390–91.

Another important holding regarded how to review the sufficiency of the

evidence to support an assessment of court costs. Johnson held that when a defendant

challenges assessed costs, appellate courts do not apply the legal-sufficiency

standard that is used to assess sufficiency of the evidence to prove guilt. Id. at 389–

90. Rather, courts “review the assessment of court costs on appeal to determine if

there is a basis for the cost, not to determine if there was sufficient evidence offered

at trial to prove each cost.” Id. at 390. Johnson went on to hold that it was appropriate

to supplement the record with a bill of cost, and that, absent a challenge to a specific

cost, a bill of costs showing $234 in statutorily allowed costs was itself a sufficient

basis to support the assessment of $234 in costs on the judgment. See id. at 391–92.

Johnson did not involve a claim like the appellant’s, which claims the bill of costs

is incorrect due to a mistake by the clerk or sheriff.

9
In London, the defendant claimed that assessing costs for summoning

witnesses violated the confrontation and compulsory-process rights of indigent

defendants. 490 S.W.3d at 506. This Court had originally rejected this claim as

unpreserved. London v. State, No. 01-13-00441-CR, 2015 WL 1778583, at *4 (Tex.

App.—Houston [1st Dist.] Apr. 16, 2015) (mem. op., not designated for publication)

(citing Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995) for proposition

that “[a] defendant may not raise for the first time on appeal an as-applied challenge

to constitutionality of a statute”), rev’d, 490 S.W.3d 503 (Tex. Crim. App. 2016).

But on discretionary review, the Court of Criminal Appeals held that

preservation was not required. It invoked Johnson for the proposition that “an

appellant may generally challenge the imposition of even mandatory court costs for

the first time on direct appeal when those costs are not imposed in open court and

the judgment does not contain an itemization of the imposed court costs.” London,

490 S.W.3d at 507. On remand, this Court addressed London’s constitutional

argument and rejected it on the merits. See London v. State, 526 S.W.3d 596, 598–

602 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d).

Neither Johnson nor London involved an arithmetical complaint like the one

the appellant raises. Both cases presented legal, not factual questions. In both cases,

had the defendant prevailed, it would have resulted in costs being zeroed out—the

entire bill for Johnson, the witness summoning fees for London. Later court-cost

10
cases from the Court of Criminal Appeals have all involved legal challenges to costs

qua costs, not arithmetical claims. See Peraza v. State, 467 S.W.3d 508, 510 (Tex.

Crim. App. 2015) (defendant complaining fee for preserving DNA records was

unconstitutional); Salinas v. State, 523 S.W.3d 103, 105 (Tex. Crim. App. 2017)

(defendant complaining consolidated court cost statute was unconstitutional);

Johnson v. State, 537 S.W.3d 929 (Tex. Crim. App. 2017) (defendant complaining

rehabilitation fee was unconstitutional); Allen v. State, 614 S.W.3d 736, 740, 743

(Tex. Crim. App. 2019) (defendant complaining witness-summoning fee was

unconstitutional); Dulin v. State, 620 S.W.3d 129, 130 (Tex. Crim. App. 2021)

(defendant complaining time payment fee was unconstitutional).

Other than Johnson’s declaration that court costs need have only a “basis” in

the record, the Court of Criminal Appeals’s caselaw in this area gives us no guidance

on how to review the appellant’s claim. This Court, in an unpublished opinion, has

engaged in the sort of review the appellant requests—counting up the served

subpoenas in the record, multiplying by $5, and reducing the assessed court costs to

that amount. See Robles v. State, No. 01-16-00199-CR, 2018 WL 1056482, at *6

(Tex. App.—Houston [1st Dist.] Feb. 27, 2018, pet. ref’d) (mem. op., not designated

for publication). In Robles, the defendant raised the same constitutional challenge to

witness-summoning fees that had been rejected in London. In its brief in Robles, the

State contested Robles’s constitutional claims but noted that the record contained

11
two unserved subpoenas and asked this Court to reduce the assessed court cost by

$10. Without addressing the standard of review, this Court agreed and modified the

judgment to reduce the assessed costs by $10.

But this unpublished opinion is not binding precedent. See TEX. R. APP. P.

47.7(a). Its persuasive value is reduced by the lack of a discussion of the standard of

review and the fact that the State agreed with reducing the court costs. Without a

discussion of the issue or adversarial briefing on the matter, there is no reason to

believe we considered or decided a standard of review in Robles. See Webster v.

Fall, 266 U.S. 507, 511 (1925) (“Questions which merely lurk in the record, neither

brought to the attention of the court nor ruled upon, are not to be considered as

having been so decided as to constitute precedents.”).

Other courts, in unpublished opinions, have considered claims like the

appellant’s and, as in Robles, do not discuss the standard of review. See e.g., Wilson

v. State, No. 05-22-00452-CR, 2023 WL 4758470, at *2 (Tex. App.—Dallas July

26, 2023, pet. ref’d) (mem. op., not designated for publication) (without discussing

standard of review, reducing court costs by $10 because record contained two

unserved subpoenas and no served subpoenas); Youngblood v. State, No.

02-17-00331-CR, 2019 WL 2635560, at *2 (Tex. App.—Fort Worth June 27, 2019,

pet. ref’d) (mem. op., not designated for publication) (in Anders case, with no

discussion of standard of review, engaging in sua sponte recalculation of bill of cost

12
and reducing witness summoning fee from $180 to $65 because record “contain[ed]

only thirteen subpoenas”).

We have found three published cases from other intermediate courts

addressing a claim like the appellant’s. In Rhodes v. State, the defendant’s appellate

counsel filed an Anders 3 brief but also claimed some of the court costs were

incorrect. 676 S.W.3d 228 (Tex. App.—Houston [14th Dist.] 2023, no pet.). One

such cost was $185 for “Attach/Convey Witness.” Id. at 233. The Fourteenth Court

noted there was “nothing in the record demonstrating that a peace officer served a

subpoena on any witnesses or attached any witness” and deleted the $185 fee. Id.

As an Anders case, Rhodes did not have adversarial briefing contesting this

issue. Rhodes did not discuss a standard of review, nor did it cite authority for the

proposition that summoning or attachment fees must be supported by subpoenas or

attachments in the appellate record. See Johnson, 423 S.W.3d at 390 (holding bill of

cost provided sufficient basis to support assessment of costs). Subpoenas and

attachments are not on Rule of Appellate Procedure 34.5’s list of items required to

be included in a clerk’s record, so unless a party or the appellate court requests their

inclusion, they will not appear in an appellate record to support fees for summoning

or attaching witnesses. Rhodes was convicted by a jury for a first-degree felony. See

3
Anders v. California, 386 U.S. 738 (1967) requires appointed counsel who believes
there are no colorable claims of reversible error to appeal to file a brief with the
appellate court explaining his or her beliefs on the subject. See id. at 744.

13
Rhodes, 676 S.W.3d at 231. It would be unusual for no witnesses to be summoned

in such a case. Because Rhodes does not discuss a standard of review, it provides no

more guidance for our issue than does Robles.

In Ikemere v. State, another published case from the Fourteenth Court, the

defendant complained about $2,835 assessed as an “Attach/Convey Witness” fee.

___ S.W.3d ___, No. 14-23-00285-CR, 2025 WL 1033959, at *4 (Tex. App.—

Houston [14th Dist.] Apr. 8, 2025, no pet.). The appellate record contained no

attachments, but “roughly sixty [subpoena] returns.” Id. at *5. Rather than striking

the “Attach/Convey Witness” fee, as the same court had done in Rhodes, or reducing

the assessed costs to comport with the number of served subpoenas, as we did in

Robles, the Ikemere court “reverse[d] the trial court’s award of the reimbursement

fees and remand[ed] for a redetermination of mandatory reimbursement fees.” Id. at

*5.

Ikemere quoted two passages from Johnson in its standard of review:

Thus, “we review the assessment of court costs on appeal to determine
if there is a basis for the cost, not to determine if there was sufficient
evidence offered at trial to prove each cost” under a traditional
evidence-sufficiency standard. [Johnson, 423 S.W.3d at 390.]
Nonetheless, a reviewing court may be asked to determine whether “the
assessed court costs are supported by facts in the record.” Id. at 395.

Ikemere, 2025 WL 1033959, at *4.

The two quoted passages appear five pages apart in Johnson and are from

different sections of the opinion, addressing different legal issues. See 423 S.W.3d
14
at 390, 395. By combining these quotes in this way, Ikemere created a requirement

not found in Johnson.

The first quoted passage explained that Johnson’s rule of sufficiency for court

costs was merely that there had to be a basis in the record for the costs. Id. at 389.

Johnson held that a bill of cost listing statutorily authorized costs was a sufficient

basis to support an assessed cost. Id. at 390.

In a different section of the opinion, however, Johnson addressed whether

court costs could be affirmed even if the record contained no bill of cost. Id. at 394–

96. Johnson held a bill of cost was not required: “[W]e believe that the Legislature

did not intend in every case for a specific amount of costs to be supported only by a

bill of cost from the record for an appellate court to conclude that the assessed costs

are supported by the record.” Id. at 395 (emphasis added). That’s the second quote

Ikemere used. In context, it requires courts to review the record to support an

assessment of court costs if there is no bill of cost. It does not require, or even

authorize, a reviewing court to go behind the face of a bill of cost. We do not believe

Ikemere correctly states the standard of review for when a defendant challenges the

amount assessed by a facially valid bill of cost.

The final published case on this matter used a standard of review that pre-dates

Johnson and does not seem consistent with Johnson. In Wilson v. State, the

defendant complained about $375 in witness summoning fees. 714 S.W.3d 900, 914

15
(Tex. App.—Eastland 2025, no pet.). Wilson claimed this amount should have been

reduced to $220 “because only forty-four subpoenas were actually served.” Id. The

record contained thirty-one unserved subpoenas. The Eleventh Court engaged in

statutory analysis and concluded that defendants did not have to pay a

reimbursement fee for subpoenas that were not actually served. Id. at 916. It reduced

the assessed court costs to comport with the number of served subpoenas in the

record. Id.

Like the other courts to address this matter, the Eleventh Court did not cite

authority for the proposition that the amount of assessed summoning costs must be

supported by subpoenas in the appellate record. And for its standard of review, it did

not rely on Johnson, which requires only a “basis” in the record to support assessed

costs on a judgment. Instead, Wilson relied on a Twelfth Court case that pre-dated

Johnson. “We measure sufficiency [of the evidence to support court costs] by

reviewing the record in the light most favorable to the award.” Id. at 914 (quoting

Ballinger v. State, 405 S.W.3d 346, 349 (Tex. App.—Tyler 2013, no pet.)). That

sounds like the legal-sufficiency standard Johnson disclaimed; if a reviewing court

is looking only for a “basis” for a cost, rather than evidentiary support for it, there is

no need to view the record in a particular light. A basis is there or it isn’t.

The Twelfth Court got this standard from Mayer v. State, 309 S.W.3d 552,

557 (Tex. Crim. App. 2010), which involved a type of court-cost complaint that is

16
conceptually different from what was raised here or in Wilson. Mayer complained

about being assessed fees for his appointed attorney under Code of Criminal

Procedure Article 26.05(g). See id. at 553, 556. That article applies only if “the judge

determines that a defendant has financial resources that enable the defendant to

offset in part or in whole the costs of the legal services provided to the

defendant . . . .” TEX. CODE CRIM. PROC. art. 26.05(g). Mayer was complaining that

there was insufficient evidence to support the trial court’s Article 26.05(g) finding.

Mayer’s complaint was different from the complaint in Wilson (and the one

here) in an important way. Mayer was arguing that the evidence was insufficient to

support a discretionary finding by the trial court, but Wilson was arguing against a

mandatory assessment by the clerk. Reviewing the evidentiary support for a trial

court’s discretionary finding is an ordinary type of sufficiency review. Reviewing

the evidentiary support for a mandatory assessment by a clerk is not. Clerks do not

hold hearings where parties admit exhibits that are sent up on appeal. Clerks do not

make findings to be reviewed for legal sufficiency. Reviewing the sufficiency of

evidence to support the actions of a clerk is not something appellate courts do. See

TEX. R. APP. P. 43.2 (listing types of judgments courts of appeal may issue, all

relating to the judgment of the trial court).

In Johnson, the Court of Criminal Appeals recognized that the attorney’s-fee

court cost at issue in Mayer was conceptually different from the sort of court costs

17
at issue in Wilson and here. See 423 S.W.3d at 389. Johnson described court costs

as being two types, mandatory and discretionary. Id. The attorney fees authorized by

Article 26.05(g) were discretionary, but the reimbursement court costs in Chapter

102 of the Code of Criminal Procedure, which includes witness summoning fees,

were mandatory. Id. We do not believe Wilson was correct to apply Mayer’s standard

of review, which applied to a discretionary cost that required evidentiary support, to

a mandatory cost, which required only a basis.

For our standard then we return to Johnson. Johnson tells us that there need

be only a “basis” in the record to support a cost, and that “[a]bsent a challenge to a

specific cost or basis for the assessment of that cost, a bill of cost is sufficient.” Id.

at 390, 396. We believe Johnson shows that a “basis” for a cost is nothing more than

attribution of the assessed amount to statutorily authorized costs or fees. See TEX.

CODE CRIM. PROC. art. 103.002 (“An officer may not impose a cost . . . for a service

for which a cost is not expressly provided by law.”).

In this case we have a judgment that assesses $290 in court costs and $875 in

reimbursement fees. The bill of costs lists out $1,165 in mandatory costs and fees,

including $835 assessed for witness summoning. Thus, there is a basis for all the

costs assessed on the judgment. Without a challenge to a specific cost, that would be

sufficient.

18
What Johnson does not elaborate on is what sorts of “challenges” a defendant

may make for the first time on appeal. Court of Criminal Appeals’ caselaw makes

clear a defendant can make any number of legal challenges to assessed costs—such

as the claim we sustained in the appellant’s third point—but we find no example of

that court allowing a factual challenge to a bill of cost. We do not rule out the

possibility of such fact-based claims, but here, given the burden of proof on appeal

and the lack of evidence in the appellate record, we conclude the appellant has failed

to show error in the bill of cost.

As a starting point, we find no requirement in statute or binding caselaw for

the appellate record to affirmatively prove every fact-based cost. Such a requirement

would be inconsistent with Johnson’s rejection of sufficiency review.

As with any document in the appellate record, we presume the bill of cost is

correct. Light v. State, 15 S.W.3d 104, 107 (Tex. Crim. App. 2000) (“The

presumption of regularity is a judicial construct that requires a reviewing court,

absent evidence of impropriety, to indulge every presumption in favor of the

regularity of the proceedings and documents in the lower court.”); Keller v. State,

125 S.W.3d 600, 605 (Tex. App.—Houston [1st Dist.] 2003) (“A presumption of

truthfulness and regularity applies to documents filed in the trial court.”), pet.

dism’d, 146 S.W.3d 677 (Tex. Crim. App. 2004); see Whary v. State, No.

03-16-00737-CR, 2017 WL 2333266, at *3 (Tex. App.—Austin May 24, 2017, no

19
pet.) (mem. op., not designated for publication) (applying presumption of regularity

to fee listed in bill of cost). “This means that the recitations in the records of the trial

court . . . are binding in the absence of direct proof of their falsity.” Breazeale v.

State, 683 S.W.2d 446, 450 (Tex. Crim. App. 1984).

The bill of costs before us states there were $835 in witness summoning fees.

The appellant’s argument would require the appellate record to provide affirmative

proof supporting this amount. That flips the presumption of regularity on its head

and treats the bill of cost as false until proven true. We reject that argument. Instead,

we presume regularity and review the record to see if it contains “direct proof of [the

bill of cost’s] falsity.” Id.

The record here is, as appellate records almost always are, sparse on details

about the source of fact-based court costs. The record contains 147 served

subpoenas. By itself that would justify $735 in summoning fees, but not the assessed

$835. See TEX. CODE CRIM. PROC. art. 102.011(a)(3) (assessing reimbursement fee

of $5 for each served subpoena). But the record does not affirmatively show there

were no other bases for assessing summoning fees. For instance, a fair number of

the subpoenas were served by personal service. The record does not show that the

number of miles traveled, and necessary meal and lodging expenses incurred, were

insufficient to account for the additional $100. See TEX. CODE CRIM. PROC. art.

102.011(b) (requiring defendant pay 29¢ per mile traveled by law enforcement

20
officer serving subpoena, as well as for “necessary and reasonable expense for meals

and lodging incurred” serving subpoenas).

Nor has the appellant shown that the subpoenas in the record were the only

ones served. While the appellant requested that “filings regarding subpoenas” be

included in the clerk’s record, it is not unheard of for requested documents not to

make it into the clerk’s record on appeal. Article 102.011 requires a convicted

defendant to pay $5 for each witness that is summoned, not for each subpoena that

is properly filed with the clerk and sent up on appeal. Determining how many

witnesses were summoned, with the level of certainty required to overcome the

presumption of regularity, cannot be done with this record.

The bill of cost shows that the basis for the assessment of $835 in court costs

is witness summoning fees. The record does not overcome the presumption that this

assessment is correct We overrule the appellant’s fourth point without prejudice to

his ability to move for a correction of costs in the trial court, where further facts can

be adduced. See TEX. CODE CRIM. PROC. art. 103.008; London v. State, 490 S.W.3d

503, 508 n.5 (Tex. Crim. App. 2016) (calling Article 103.008 procedure

“tailor-made” for challenging assessed court costs).

21
C. Delayed Payment

In his fifth point of error the appellant asks us to remove all assessed costs

and fees from the bill of cost.

The appellant’s requests hinges on two claims. First, he claims that the trial

court’s judgment orders that he not pay costs until after he has served his sentence,

as authorized by Code of Criminal Procedure Article 42.15(b)(2). He bases this

claim on the following language from the judgment:

Upon release from confinement, the Court Orders Defendant to proceed
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 arrange to pay any
fines, court costs, reimbursement fees, and restitution due.

Second, he claims that the current bill of cost requires him to pay his costs

immediately, in violation of the court’s judgment. He bases this claim on Code of

Criminal Procedure Article 103.001(a), which states that “[a] cost is not payable by

the person charged with the cost until a written bill is: (1) produced . . . ; (2) signed

by . . . the officer who is entitled to receive payment for the cost; and (3) provided

to the person charged with the cost.”

The appellant claims that the bill of cost “meets the statutory requirements of

a cost that is payable now.” He claims this “conflicts with the trial court’s orders.”

The appellant’s textual interpretations are questionable. On its face the trial

court’s judgment requires him to “pay any . . . court costs . . . due” when he is

released from confinement. It does not prohibit him from paying his court costs

22
earlier, nor does it prohibit immediate collection efforts. All it says is that when he

is released from custody, he must pay anything due at that time.

And Article 103.001 does not state that costs are immediately payable when

a bill of cost is complete. It says that a cost is not payable “until” certain

preconditions are met.

The only authority the appellant provides that shows a court striking costs is

Bruedigam v. State, No. 07-23-00429-CR, 2024 WL 2739395 (Tex. App.—Amarillo

May 28, 2024, no pet.) (mem. op., not designated for publication). But in that case

the trial court had explicitly ordered that the defendant pay $0 in court costs, based,

apparently, on a finding of indigence under Code of Criminal Procedure article

42.15(a-1). Id. at *1. This record does not have such an order so Bruedigam is not

instructive.

The appellant provides us no authority suggesting that a bill of cost is

incompatible with the language in the judgment. The language in this judgment is

identical to that in the Office of Court Administration’s standard form judgment,4

implying there was no specialized finding here as the appellant suggests. The option

the trial court selected on the form judgment is the only option available for ordering

a defendant confined in a state jail or prison. If this option was incompatible with

4
See Texas Judicial Branch, “Rules and Forms,” available at https://www.txcourts.
gov/forms/.

23
the clerk completing a bill of cost, it seems likely that would have come up in the

caselaw by now.

Nor does the appellant provide us with authority showing it is proper for a

clerk to recreate a bill of cost decades after a judgment when a defendant has

completed his sentence. Were we to delete the bill of cost now, the result would be

that there would be no bill of cost for the appellant to pay upon his release from

confinement. That result would thwart the trial court’s order that the appellant pay

any costs due at the end of his confinement.

The judgment does not say what the appellant claims it says, nor does the bill

of cost do what the appellant claims it does. We see no conflict between the judgment

and the bill of cost, and even if we did the appellant has provided us no authority

that the correct remedy is for this Court to delete the bill of cost. We overrule the

appellant’s fifth point.

24
Conclusion

We affirm the trial court court’s judgments of guilt and the appellant’s

sentences. We modify the judgment for the deadly-conduct conviction5 to reflect $0

in court costs and we modify the bill of cost in that case to show consolidated state

and local court costs as $0.

Clint Morgan
Justice

Panel consists of Justices Rivas-Molloy, Guiney, and Morgan.

Publish.

5
Trial Court Cause No. 1720032 (No. 01-24-00567-CR).

25