Keith Edward Curry v. the State of Texas

NUMBER 13-24-00429-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

KEITH EDWARD CURRY, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 377TH DISTRICT COURT
OF VICTORIA COUNTY, TEXAS

MEMORANDUM OPINION

Before Justices Silva, Peña, and Fonseca
Memorandum Opinion by Justice Silva

A jury found appellant Keith Edward Curry guilty of one count of possession of a

controlled substance in penalty group one in an amount of four grams or more but less

than two hundred grams, a second-degree felony. See TEX. HEALTH & SAFETY CODE ANN.

§ 481.115(a), (d). The jury assessed Curry’s punishment at ten years’ imprisonment. By

one issue, which we construe as two, Curry argues that (1) the trial court’s judgment is
void, and (2) the trial court’s judgment erroneously contains a reimbursement fee. We

affirm.

I. BACKGROUND

Curry was indicted and convicted by a jury for possession of a controlled substance

in penalty group one in an amount of four grams or more but less than two hundred grams.

See id. The trial court’s written judgment erroneously reflected that Curry was convicted

of “MANUFACTURE OR DELIVERY OF SUBSTANCE IN PENALTY GROUP 1 (>= 4

GRAMS BUT LESS THAN 200 GRAMS).” See id. § 481.112. The judgment also

assessed a $75 reimbursement fee against Curry.

Curry perfected this appeal and filed a brief asserting that the judgment was void

and that the reimbursement fee was improper. During the pendency of this appeal, the

trial court entered a judgment nunc pro tunc correcting the offense for which Curry was

convicted from “MANUFACTURE OR DELIVERY OF SUBSTANCE IN PENALTY

GROUP 1 (>= 4 GRAMS BUT LESS THAN 200 GRAMS)” to “POSSESSION OF A

CONTROLLED SUBSTANCE IN PENALTY[ ]GROUP 1 IN AN AMOUNT OF FOUR (4)

GRAMS OR MORE BUT LESS THAN TWO HUNDRED (200) GRAMS.” However, the

judgment nunc pro tunc still contains the $75 reimbursement fee.

II. VOID JUDGMENT

By his first issue, Curry argues the trial court’s original written judgment was void

because it contained a clerical error. As discussed above, the record demonstrates that

the trial court’s written judgment did not accurately reflect the oral pronouncement

rendered by the trial court. Curry argues without citation to legal authority that “[t]he

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difference in sentences as reflected in the judgment is a defect that cannot be cured and

as such the judgment is void.” See TEX. R. APP. P. 38.1(i) (“The [appellant’s] brief must

contain a clear and concise argument for the contentions made, with appropriate citations

to authorities and to the record.”). Citing Gray v. State, 707 S.W.2d 607, 608 (Tex. Crim.

App. 1986), Curry also argues that “[a] clerical error may be sufficient to void a judgment.”

However, Gray does not stand for this proposition. Instead, Gray involves an error in the

defendant’s notice of appeal and is thus not relevant to Curry’s argument. Id.

We reject Curry’s contention that the trial court’s original written judgment is “void”

merely because it contains clerical errors. A void judgment is a judgment “accorded no

respect due to a complete lack of power to render the judgment in question.” Nix v. State,

65 S.W.3d 664, 667 (Tex. Crim. App. 2001); Gamez v. State, No. 13-23-00367-CR, 2024

WL 717099, at *2 (Tex. App.—Corpus Christi–Edinburg, Feb. 22, 2024 no pet.) (mem.

op., not designated for publication). A void judgment occurs only “in very rare situations,”

such as

when (1) the document purporting to be a charging instrument (i.e.
indictment, information, or complaint) does not satisfy the constitutional
requisites of a charging instrument, thus the trial court has no jurisdiction
over the defendant, (2) the trial court lacks subject matter jurisdiction over
the offense charged, such as when a misdemeanor involving official
misconduct is tried in a county court at law, (3) the record reflects that there
is no evidence to support the conviction, or (4) an indigent defendant is
required to face criminal trial proceedings without appointed counsel, when
such has not been waived, in violation of Gideon v. Wainwright [, 372 U.S.
335 (1963)].

Nix, 65 S.W.3d at 668 (internal citations omitted); Gamez, 2024 WL 717099, at *2. In this

case, the trial court’s original written judgment merely contained clerical errors, which did

not render the judgment void. See Nix, 65 S.W.3d at 668; see also Gamez, 2024 WL

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717099, at *2 (“[W]e are not persuaded by Gamez’s argument that the judgment is void

due to these two alleged [clerical] errors.”). Curry raises no other arguments as to why

the judgment is void.

We further conclude the trial court had authority to correct the clerical errors with

its judgment nunc pro tunc. See Collins v. State, 240 S.W.3d 925, 928 (Tex. Crim. App.

2007) (“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.” (citing Alvarez

v. State, 605 S.W.2d 615, 617 (Tex. Crim. App. 1980))); see also Burt v. State, 445

S.W.3d 752, 757 (Tex. Crim. App. 2014) (citing Taylor v. State, 131 S.W.3d 497, 500

(Tex. Crim. App. 2004)) (“[W]hen there is a conflict between the oral pronouncement [of

sentence] and the [sentence in the] written judgment, the oral pronouncement controls.”);

Gomez v. State, 459 S.W.3d 651, 666 (Tex. App.—Tyler 2015, pet. ref’d) (citing Smith v.

State, 15 S.W.3d 294, 298 (Tex. App.—Dallas 2000, no pet)) (“The purpose of a nunc pro

tunc order is to correctly reflect in the records of the trial court the judgment it actually

made, but which for some reason was not entered of record at the proper time.”); In re

Cherry, 258 S.W.3d 328, 333 (Tex. App.—Austin 2008, no pet.) (citing State v. Bates,

889 S.W.2d 306, 309 (Tex. Crim. App. 1994)) (“[A] valid judgment nunc pro tunc can be

entered at any time, even after the trial court has lost jurisdiction over the case.”).

Because the trial court has corrected the complained-of error in the nunc pro tunc

judgment, there is no longer a justiciable controversy for this Court to consider with

respect to this issue. See Ex parte Bohannan, 350 S.W.3d 116, 120 (Tex. Crim. App.

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2011) (recognizing that mootness generally turns on whether the claim is justiciable).

Accordingly, Curry’s first issue is overruled as moot.

III. REIMBURSEMENT FEE

Curry next argues that a $75 reimbursement fee in the trial court’s written judgment

is erroneous because “neither the jury’s verdict nor the judge’s sentencing reference any

reimbursement.”1 Curry cites no legal authority in support of his assertion. See TEX. R.

APP. P. 38.1(i).

Juries are not authorized to impose court costs by their verdict in a criminal case,

but can assess fines in assessing punishment. See TEX. CODE CRIM. PROC. ANN. art.

37.07(1)(a)–(b); see also TEX. PENAL CODE ANN. §§ 12.02–.43. The trial court signs and

enters the written judgment, see TEX. CODE CRIM. PROC. ANN. art. 42.01, and the

imposition of court costs is governed by Article 42.16, which states that the trial court shall

“adjudge the costs against the defendant, and order the collection thereof as in other

cases.” Id. art. 42.16. Thus, upon the defendant’s conviction, the imposition of court costs

is mandatory. Martinez v. State, 507 S.W.3d 914, 916 (Tex. App.—Waco 2016, no pet.).

Court costs are not punitive and do not have to be included in the oral pronouncement as

a precondition to their inclusion in the written judgment. 2 Weir v. State, 278 S.W.3d 364,

1 Curry does not address whether the reimbursement fee was properly assessed other than to

argue that it was not referenced by the jury’s verdict or the trial court’s oral sentencing; accordingly, we will
only address this specific argument. See Houston v. State, 410 S.W.3d 475, 479 (Tex. App.—Fort Worth
2013, no pet.) (“We decline to undertake a review of the correctness of each cost charged in the bill of costs
when [the appellant] has not done so.”); see also Coronel v. State, 416 S.W.3d 550, 556 (Tex. App.—Dallas
2013, pet. ref’d) (“[W]e note that in his original brief and his two post-submission objections to the bill of
costs, appellant does not challenge the propriety or legality of the specific costs assessed; therefore, we
do not address these issues.”).
2 The record reflects that the trial court informed Curry that he was to “pay court costs” during its

oral pronouncement of Curry’s sentence.

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367 (Tex. Crim. App. 2009). The imposition of court costs does not alter the punishment

range, is authorized by statute, and is generally not conditioned on a defendant’s ability

to pay. See TEX. CODE CRIM. PROC. ANN. art. 42.16; Armstrong v. State, 340 S.W.3d 759,

766–67 (Tex. Crim. App. 2011); see also Anastassov v. State, 664 S.W.3d 815, 823 (Tex.

Crim. App. 2022) (“A fine is not a court cost or fee; it is part of the punishment.”); Ruyle

v. State, No. 02-24-00199-CR, 2025 WL 938131, at *2 (Tex. App.—Fort Worth Mar. 27,

2025, no pet.) (mem. op., not designated for publication) (“[F]ines must be orally

pronounced in the defendant’s presence.”) (citing Armstrong, 340 S.W.3d at 767)).

For the foregoing reasons, Curry’s second issue is overruled.

IV. CONCLUSION

We affirm the trial court’s judgment.

CLARISSA SILVA
Justice

Do not publish.
TEX. R. APP. P. 47.2 (b).

Delivered and filed on the
29th day of May, 2025.

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