Daniel Arturo Contreras v. the State of Texas

Opinion

AFFIRMED as MODIFIED and Opinion Filed December 23, 2021

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00185-CR No. 05-20-00186-CR

DANIEL ARTURO CONTRERAS, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause Nos. F16-75561-H & F18-76586-H

MEMORANDUM OPINION ON REHEARING Before Justices Molberg, Goldstein, and Smith Opinion by Justice Goldstein On November 1, 2021, this Court issued its memorandum opinion affirming

as modified the trial court’s judgments. On November 9, 2021, appellant Daniel

Arturo Contreras filed a motion for rehearing seeking additional modifications to the

trial court’s judgment and bill of costs in the solicitation case. We requested a

response from the State and, in its response, the State agreed to the additional

modifications. We grant the motion for rehearing, withdraw our November 1, 2021 memorandum opinion, and vacate our judgments of the same day. This is now the

opinion of the Court.

Following a bench trial, Appellant was convicted of sexual assault of a child

and solicitation to commit capital murder. See TEX. PENAL CODE ANN. §§

22.011(a)(2)(A), 15.03(a), 19.03(a)(3). Appellant raises seven issues on appeal. In

his first two issues, he contends that he received ineffective assistance of counsel. In

his remaining issues, he asks us to modify the judgments to remove certain court

costs and fees and to reflect that there was no plea bargain agreement. We modify

the trial court’s judgments and affirm the judgments as modified.

BACKGROUND

On April 7, 2016, one of Appellant’s nephews, RD, went to Appellant’s house

to visit his cousins and stay the night. After watching a movie with one of his cousins

and her live-in partner, RD went to Appellant’s room to sleep. Appellant was already

in bed. After climbing into bed, RD put his arm and leg on Appellant to get

comfortable. RD testified that while he was in this position, Appellant reached back

and touched RD’s penis, first outside, then inside of RD’s shorts. RD turned around

to face away from Appellant, after which he felt Appellant’s finger touch and

penetrate his anus. He also felt Appellant’s penis touching his butt and moving

around, but it did not “go inside.” The next day, RD told his mother about the

–2– incident, and she contacted the police. Appellant was arrested and charged with

sexual assault of a minor. He was released on bond pending trial.

After multiple settings and court appearances, trial was scheduled for

September 26, 2018. On September 11, 2018, the police received a call from Juan

Aguilar, an acquaintance of Appellant’s. Aguilar told the police that Appellant called

him earlier in the day about “a job” and the two met in person that afternoon.

According to Aguilar, Appellant told him about the sexual assault case, claimed RD

was lying, and said he was about to go to prison. Aguilar testified that Appellant

offered him “seven to eight thousand dollars” to kill RD. Aguilar told the police that

Appellant gave him a gun wrapped in a white t-shirt, showed him where RD lived,

and told him to “make it [look like] a robbery.”

The police arrived at Aguilar’s house the next day and took possession of the

gun and t-shirt. A forensic investigation revealed that DNA on the t-shirt matched

Appellant’s DNA but made no conclusive findings about the gun. Cell phone records

confirmed that Appellant called Aguilar on September 11, 2018. Surveillance

footage from a nearby gas station showed Appellant and Aguilar together, and cell-

tower data placed Appellant and Aguilar near RD’s home. Appellant was arrested

and charged with solicitation to commit capital murder. Investigators obtained a

search warrant for Appellant’s cell phone, and the subsequent search revealed that

–3– at least one call between Appellant and Aguilar had been deleted from the phone’s

call log. The cell phone also contained images of child pornography.

The trial court found Appellant guilty on both charges and sentenced him to

twenty years’ confinement on the charge for sexual assault of a child and thirty-five

years’ confinement on the charge for solicitation of capital murder, to run

concurrently. This appeal timely followed.

DISCUSSION

I. INEFFECTIVE ASSISTANCE

In his first two issues, Appellant complains he was deprived of his Sixth

Amendment right to effective assistance of counsel. He argues that his trial counsel

failed to investigate and present mitigating evidence pertaining to Appellant’s

medications and mental illness.

A. Applicable Law

The Sixth Amendment to the United States Constitution guarantees criminal

defendants the right to effective assistance of counsel. Lopez v. State, 343 S.W.3d

137, 142 (Tex. Crim. App. 2011). The proper standard for determining claims of

ineffective assistance under the Sixth Amendment is the two-pronged standard

adopted by the United States Supreme Court in Strickland. Jackson v. State, 877

S.W.2d 768, 770–71 (Tex. Crim. App. 1994) (citing Strickland v. Washington, 466

U.S. 668, 687 (1984)). The two prongs are “deficient performance” and “sufficient

–4– prejudice.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Failure

to satisfy either prong under Strickland is fatal to an ineffective-assistance claim.

Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).

Under the performance prong, the defendant must show by a preponderance

of the evidence that his counsel was ineffective. Thompson, 9 S.W.3d at 813. We

examine the totality of representation to determine whether the defendant received

effective assistance. Id. Our review of counsel’s representation is highly deferential;

we presume that counsel’s conduct fell within a wide range of reasonable

representation. Villa v. State, 417 S.W.3d 455, 463 (Tex. Crim. App. 2013). We do

not judge counsel’s strategic decisions in hindsight, and we strongly presume

counsel’s competence. Rubio v. State, 596 S.W.3d 410, 426 (Tex. App.—Dallas

2020, pet. granted). We will not speculate to find defense counsel ineffective. Id. We

will inquire into counsel’s trial techniques only when there appears to be no plausible

basis in strategy or tactics for counsel’s actions. Villa, 417 S.W.3d at 463.

One necessary facet of professional assistance is the investigation of the facts

and law applicable to a case. Ex parte LaHood, 401 S.W.3d 45, 50 (Tex. Crim. App.

2013) (citing Strickland, 466 U.S. at 691; Ex parte Imoudu, 284 S.W.3d 866, 870

(Tex. Crim. App. 2009)). Counsel has a duty in every case to make a reasonable

investigation or a reasonable decision that an investigation is unnecessary. Id. When

assessing the reasonableness of an attorney’s investigation, a reviewing court must

–5– consider the quantum of evidence already known to counsel and whether the known

evidence would lead a reasonable attorney to investigate further. Id. (quoting Ex

parte Martinez, 195 S.W.3d 713, 721 (Tex. Crim. App. 2006)). “Strategic choices

made after thorough investigation of law and facts relevant to plausible options are

virtually unchallengeable; and strategic choices made after less than complete

investigation are reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation.” Ex parte Garza, 620 S.W.3d

801, 806 (Tex. Crim. App. 2021) (quoting Wiggins v. Smith, 539 U.S. 510, 123

(2003)); see also Bouchillon v. Collins, 907 F.2d 589, 597 (5th Cir. 1990) (“Tactical

decisions must be made in the context of a reasonable amount of investigation, not

in a vacuum.”).

Under the sufficient-prejudice prong, the defendant must show that counsel’s

deficient performance prejudiced the defense. Jackson, 877 S.W.2d at 771. To meet

this burden, the defendant must show that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different. Id. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id.

B. Application of Law to Facts

Appellant contends his trial counsel was ineffective for failing to investigate

Appellant’s history of schizophrenia and the medications he was taking to treat that

–6– illness. Had counsel done the proper investigation, Appellant argues, the resulting

evidence could have led to his acquittal or reduced his sentence.

1. Deficient Performance

With respect to the first Strickland prong, we cannot determine on this record

whether Appellant’s trial counsel rendered constitutionally deficient representation.

An allegation of ineffectiveness must be firmly founded in the record, and the record

must affirmatively demonstrate the alleged ineffectiveness. Prine v. State, 537

S.W.3d 113, 117 (Tex. Crim. App. 2017). The defendant must produce record

evidence sufficient to overcome the presumption that, under the circumstances, the

challenged action was sound trial strategy. Strickland, 466 U.S. at 689; Villa, 417

S.W.3d at 463. When the record contains no evidence of the reasoning behind the

trial counsel’s actions, we cannot conclude that counsel’s performance was deficient.

Jackson, 877 S.W.2d at 772. “[A] reviewing court on direct appeal will rarely be

able to fairly evaluate the merits of an ineffective-assistance claim because the

record on direct appeal is usually undeveloped and inadequately reflective of the

reasons for defense counsel’s actions at trial.” Mata v. State, 226 S.W.3d 425, 430

(Tex. Crim. App. 2007). The record on direct appeal will generally “not be sufficient

to show that counsel’s representation was so deficient as to meet the first part of the

Strickland standard” because “[t]he reasonableness of counsel’s choices often

involves facts that do not appear in the appellate record.” Rylander v. State, 101

–7– S.W.3d 107, 110 (Tex. Crim. App. 2003) (quoting Mitchell v. State, 68 S.W.3d 640,

642 (Tex. Crim. App. 2002)). “[T]rial counsel should ordinarily be given an

opportunity to explain his actions before being denounced as ineffective.” Id. at 111;

Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012).

Because this is a direct appeal in which Appellant’s trial counsel never

testified regarding his trial strategy, Appellant’s claim of ineffective assistance

would ordinarily be foreclosed. Mata, 226 S.W.3d at 430; Rylander, 101 S.W.3d at

110. Appellant contends, however, that such testimony is not required because the

record already contains the necessary evidence of his trial counsel’s actions. During

closing argument, Appellant’s counsel stated:

I’d like the Court to take, also, into account [Appellant’s] medical conditions. He’s made reference to schizophrenia and that type of thing. Judge, I haven’t gotten a good handle on that, but I want the Court to know that it appeared to me at all times that he understood what was going on. He’s had some memory lapses, but that’s about it. He has been cooperative.

Appellant argues that his counsel’s admission of not having “a good handle” on his

schizophrenia “can only be interpreted one way,” namely, that counsel had “failed

to do the necessary investigation to understand the nature of Appellant’s medications

and mental illness and any implications it could have on Appellant’s behavior and

–8– reactions to events and circumstances.”1 In order to meet his burden to prove

ineffective assistance, Appellant must show not only that his counsel’s investigation

was incomplete, but also that counsel’s decision to discontinue the investigation was

unreasonable. See Garza, 620 S.W.3d at 806 (“[S]trategic choices made after less

than complete investigation are reasonable precisely to the extent that reasonable

professional judgments support the limitations on investigation.”). The record is

silent on the nature and extent of counsel’s investigation into Appellant’s mental

illness and medications, much less counsel’s reasons for the amount of investigation

he conducted.2 Absent such evidence, we cannot conclude that Appellant has

overcome the presumption that his counsel’s conduct fell within the wide range of

reasonable representation. See id.; Villa, 417 S.W.3d at 463. We conclude that

Appellant did not meet his burden to show deficient performance under the first

prong of Strickland.

1 We note also that counsel’s statement that he lacked “a good handle” on Appellant’s history of schizophrenia was made in closing argument. Counsel’s statements during closing argument are not evidence. See Hutch v. State, 922 S.W.2d 166, 173 (Tex. Crim. App. 1996) overruled on other grounds by Gelinas v. State, 398 S.W.3d 703, 704 (Tex. Crim. App. 2013). We do not consider incompetent evidence when determining whether a defendant has met his burden to prove ineffective assistance by a preponderance of the evidence. See Weeks v. State, 894 S.W.2d 390, 392 (Tex. App.—Dallas 1994, no pet.) (burden to prove ineffective assistance must be met with “competent evidence”). 2 To the extent Appellant contends that his trial counsel failed to do any investigation into his mental health and medications, the record does not support Appellant’s contention. In a pre-trial motion to set bond filed a year before trial, Appellant’s counsel explained that Appellant had been diagnosed with schizophrenia at “Metro Care Center” and was not being given the proper medication in jail. At the hearing on that motion, and again at trial, counsel elicited testimony from Appellant and his relatives about Appellant’s medications.

–9– 2. Prejudice

Even if Appellant met his burden to prove deficient performance, the record

does not support a finding of prejudice. Appellant argues that his counsel’s deficient

performance prejudiced him both in the determination of his guilt and in the

assessment of his punishment. On review, our analysis of prejudice under Strickland

depends on which aspect of the trial proceeding is being challenged. See LaHood,

401 S.W.3d at 52 (“The Supreme Court’s prejudice standard in a Strickland analysis

is flexible and must be applied in many different contexts.”). When a defendant

asserts that his counsel’s deficient performance likely affected a finding of guilt, “the

question is whether there is a reasonable probability that, absent the errors, the

factfinder would have had a reasonable doubt respecting guilt.” Johnson v. State,

624 S.W.3d 579, 587 (Tex. Crim. App. 2021). When a defendant asserts that the

deficient performance likely affected his punishment, the question is “whether there

is a reasonable probability that, absent the errors, the sentencer would have assessed

a more lenient punishment.” Miller v. State, 548 S.W.3d 497, 499 (Tex. Crim. App.

2018).

With respect to the trial court’s finding of guilt, Appellant argues that his trial

counsel’s failure to investigate his mental health background led to a dearth of trial

evidence about what medications he was taking, the side effects of the medications,

and the effects of schizophrenia on a person’s mental state. Such evidence, Appellant

–10– argues, would have bolstered his credibility when he explained “what happened with

RD and his response to the situation, and his testimony regarding his interaction with

Aguilar.”3 We reject Appellant’s argument because it requires us to speculate as to

what information would have been available to the trial court had Appellant’s

counsel further investigated Appellant’s medical history. In determining the

likelihood that the outcome of trial would have been different but for counsel’s

errors, we must “reweigh the evidence in aggravation against the totality of available

mitigating evidence.” Martinez, 195 S.W.3d at 730. It is incumbent on Appellant to

present us with a record that contains the “available mitigating evidence” that his

counsel failed to uncover and present to the trial court. See Ex parte Flores, 387

S.W.3d 626, 638 (Tex. Crim. App. 2012). We are not presented with such a record,

and we are not authorized to speculate as to what it might contain. See Rubio, 596

S.W.3d at 426; see also Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002)

(“If a reviewing court can speculate about the existence of further mitigating

evidence, then it just as logically might speculate about the existence of further

aggravating evidence. Ineffective assistance of counsel claims are not built on

retrospective speculation; they must ‘be firmly founded in the record.’”).

3 Even if further evidence of Appellant’s medical history would have bolstered his testimony about what happened with RD, Appellant does not explain how such evidence would have lent credibility to his testimony regarding his interaction with Aguilar. The only side effect of his medication that Appellant testified to at trial was that it causes him to fall into a deep sleep.

–11– With respect to punishment, Appellant argues that if his trial counsel would

have done the necessary investigation into Appellant’s mental health, he could have

provided the trial court with specific evidence to consider in determining what

punishment to assess. However, the evidence of Appellant’s mental condition and

medications was already before the trial court, and there is no indication that the

court discredited that evidence. Appellant testified that on the night RD climbed into

bed with him, he had taken medication that causes him to fall into a deep sleep. He

claimed that he woke up only when RD touched him, at which point he left the bed

to sleep on the sofa. To the extent that an unspecified investigatory scope of

Appellant’s medical history would have yielded more specific evidence of

Appellant’s schizophrenia or the side effects of his medication, we cannot say that

there is a reasonable probability that the trial court would have assessed a lighter

punishment on the sexual assault conviction. See Martinez, 195 S.W.3d at 731

(Because the jury was privy to some of the severe abuse applicant suffered during

his childhood, there is not a reasonable probability that the unadmitted alleged

mitigating evidence would have tipped the scale in applicant’s favor, despite the

omitted mitigating evidence about his abuse being “strong.”). We conclude that

Appellant has not shown that the evidence he believes should have been developed

“differ[s] in a substantial way—in strength and subject matter—from the evidence

actually presented” at trial. See id.

–12– Even if Appellant had made the necessary showing of prejudice with respect

to the sexual assault charge, there is no indication in the record that Appellant’s

mental health or medication were relevant to the charge for solicitation of capital

murder. Appellant did not testify that he was suffering from adverse effects of his

medication during his meeting with Aguilar. As such, we cannot conclude that

further evidence of his schizophrenia or medication would have had any effect on

the trial court’s assessment of punishment on the charge for solicitation to commit

capital murder. The trial court found Appellant guilty of both charges and assessed

punishment at twenty years on the sexual assault charge and thirty-five years on the

solicitation charge to run concurrently. Even if we were to determine that additional

evidence of Appellant’s mental health history and medications might have impacted

his punishment on the sexual assault charge, he has not shown that there was a

reasonable probability that the “outcome of the proceeding”—a thirty-five year

sentence on the charge for solicitation of capital murder—would have been different.

See Jackson, 877 S.W.2d at 771.

As the record on direct appeal does not affirmatively establish both deficient

performance and prejudice, we overrule Appellant’s first and second issues. See

Strickland, 466 U.S. at 687; Perez, 310 S.W.3d at 892–93.

–13– II. MODIFICATION OF THE JUDGMENT

In his remaining issues, Appellant asks us to modify the judgment to remove

court costs in the sexual assault judgment as duplicative, to remove the time payment

fee imposed by the trial court as unconstitutional, and to reflect that there was no

plea bargain agreement. The State agrees to some modifications but not others. This

Court “has the power to correct and reform the judgment of the court below to make

the record speak the truth when it has the necessary data and information to do so.”

Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d); accord

Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Abron v. State, 997

S.W.2d 281, 282 (Tex. App.—Dallas 1998, pet. ref’d); see also TEX. R. APP. P.

43.2(b) (court of appeals may “modify the trial court’s judgment and affirm it as

modified”). We address each modification issue in turn.

A. Court Costs

Appellant argues that we should modify the judgment of conviction for sexual

assault of a child to remove duplicate court costs. The State agrees and further

contends that we should also remove certain costs from both judgments on the

grounds that they were not authorized. The costs and fees assessed against Appellant

in each bill of costs are as follows4:

4 These amounts were set forth in a bill of costs for each case. Each bill of costs had an additional $25 charge that does not appear in the corresponding judgments. That difference, listed here as “Installment Plan,” is the subject of Appellant’s fourth and fifth issues, which we address in the next section.

–14– Sexual Assault Solicitation Description Case Costs ($) Case Costs ($) Consolidated State Fees 185.00 185.00 Clerk’s Fee 40.00 40.00 Jury Fee 1.00 1.00 CDC Technology Fee 4.00 4.00 Court House Security Fee 10.00 10.00 County Records Management 25.00 25.00 Specialty Court 25.00 25.00 Child Abuse Prevention Fund 100.00 N/A DNA Fee 250.00 50.00 Installment Plan 25.00 25.00 Total 665.00 365.00

We begin with the parties’ contentions about duplicate costs. The Texas Code

of Criminal Procedure requires that a judgment of conviction order the defendant to

pay court costs. Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014)

(citing TEX. CODE CRIM. PROC. ANN. arts. 42.15, 42.16). Only statutorily authorized

court costs may be assessed. Id. Where a criminal defendant is convicted of two or

more offenses in the same action, the trial court may assess each court cost or fee

only once and it must be for the highest category of offense for which the defendant

was convicted. TEX. CODE CRIM. PROC. ANN. art. 102.073. Here, Appellant was

convicted of two offenses and was assessed costs in both. We agree that certain costs

should have been taxed against Appellant only in the higher offense of solicitation

to commit capital murder. See TEX. PENAL CODE ANN. §§ 15.03(a) (classifying

solicitation of capital murder as a first-degree felony), 22.011(f) (classifying sexual

–15– assault of a child as a second-degree felony). We modify the judgment in the sexual

assault case to remove the duplicate costs.

The State contends that we should also remove the DNA-testing costs from

both judgments and remove the costs for the child abuse prevention fund from the

sexual assault judgment. The State’s argument is based on recent changes to the law

governing court costs and fees. In 2019, the Legislature overhauled the system of

court costs for criminal cases. See Act of May 23, 2019 [Cost Act5], 86th Leg., R.S.,

ch. 1352, 2019 Tex. Gen. Laws 3982. Among other things, the Cost Act raised the

amount of certain costs, consolidated others, repealed some costs altogether, and

recategorized certain costs as fines. Relevant here, the Cost Act repealed article

102.020 of the Code of Criminal Procedure, which required the assessment of costs

for DNA testing in certain criminal cases. See id. § 1.19(7). The Cost Act also

amended article 102.0186 of the Code of Criminal Procedure, which previously

required the assessment of costs for certain sexual assault convictions to be paid into

a child-abuse-prevention fund. The Cost Act recategorized those costs as fines. See

id. § 2.39.

5 The full name of the act as originally introduced in the Senate was “an Act relating to the consolidation and allocation of state criminal court costs; increasing the amount of certain court costs and reducing the amounts of certain other court costs.” See Tex. S.B. 346, 86th Leg., R.S. (2019). We refer to the act as the “Cost Act” for ease of reference.

–16– The State contends that the trial court was not authorized to impose DNA-

testing costs or costs for the child abuse prevention fund because there was no

statutory basis for them at the time of Appellant’s conviction. The Cost Act took

effect on January 1, 2020. See id. § 5.05. With respect to its effective date, the Cost

Act provides:

SECTION 5.01. Except as otherwise provided by this Act, the changes in law made by this Act apply only to a cost, fee, or fine on conviction for an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.

Id. § 5.01. Although the offenses in this case were committed prior to January 1,

2020, the State contends that this provision is superseded by section 51.608 of the

Government Code, which provides:

Notwithstanding any other law that establishes the amount of a court cost collected by the clerk of a district, county, or statutory county court from a defendant in a criminal proceeding based on the law in effect on the date the offense was committed, the amount of a court cost imposed on the defendant in a criminal proceeding must be the amount established under the law in effect on the date the defendant is convicted of the offense.

TEX. GOV’T CODE ANN. § 51.608. Reading these two provisions together, the State

argues that Appellant is subject to fees and fines that were in effect when he

committed the offenses, but he is subject to costs that were in effect when he was

convicted, including the changes made by the Cost Act.

–17– We disagree that either the Cost Act or section 51.608 of the Government

Code affects the assessment of costs in this case. When the language of a statute is

unambiguous, we give effect to the plain meaning of the words unless doing so

would lead to absurd results. Clark v. State, 994 S.W.2d 166, 168 (Tex. Crim. App.

1999). Section 51.608 unambiguously states that costs must be based on the law “in

effect” at the time of conviction. In turn, section 5.01 of the Cost Act provides that

the law in effect when the offense was committed “continue[s] in effect” even after

the Cost Act’s effective date. Although the Cost Act repealed DNA-testing costs and

recategorized child-abuse-prevention costs as fines, neither of those changes applies

here because Appellant committed the offenses in this case in 2016 and 2018. See,

e.g., Hayes v. State, No. 12-20-00222-CR, 2021 WL 1418400, at *2 (Tex. App.—

Tyler Apr. 14, 2021, no pet.) (mem. op., not designated for publication) (costs

imposed by the Cost Act do not apply where offense was committed prior to January

1, 2020); Groves v. State, No. 07-21-00006-CR, 2021 WL 2908677, at *7 (Tex.

App.—Amarillo July 9, 2021, pet. ref’d) (mem. op., not designated for publication)

(same). Because the $250 DNA-testing cost and the $100 child-abuse-prevention

cost were authorized by statutes in effect at the time Appellant committed the

offenses in this case, we decline to modify the sexual assault judgment to remove

them.

–18– The State argues in the alternative that even if the Cost Act had not repealed

the DNA-testing costs, the trial court still should not have assessed a DNA-testing

cost in the solicitation case. We agree. Former article 102.020 of the Code of

Criminal Procedure provided that a person must pay $50 in court costs “on

conviction of an offense described by Section 411.1471(a)(3), Government Code.”

TEX. CODE CRIM. PROC. ANN. art. 102.020(a)(2) (repealed by Act of May 23, 2019,

86th Leg., R.S., ch. 1352, 2019 Tex. Gen. Laws 3982). At the time of the offenses

in this case, section 411.1471(a)(3) of the Government Code generally applied to

offenses under Title 5 of the Penal Code, which includes capital murder. See TEX.

GOV’T CODE ANN. § 411.1471(a)(3) (recodified as TEX. GOV’T CODE ANN.

§ 411.1471(a)(2) by Act of May 22, 2019, 86th Leg., R.S., ch. 1285, 2019 Tex. Gen.

Laws 3798). Here, however, Appellant was convicted of solicitation to commit

capital murder, not capital murder itself. See TEX. PENAL CODE ANN. § 15.003(a),

(d)(1). Inchoate offenses such as solicitation are codified under Title 4 of the Penal

Code and are therefore exempt from the DNA-testing cost imposed by former article

102.020. Accordingly, we modify the solicitation judgment to remove the DNA-

testing cost.

B. Time-Payment Fee

In his fourth and fifth issues Appellant asserts that the $25 time-payment fee

taxed against him in both cases—identified in the chart above as “Installment Plan”

–19– costs—should be stricken as unconstitutional. At the time Appellant committed the

offenses in this case, section 133.103 of the Local Government Code provided for a

$25 fee to be imposed on any person convicted of a misdemeanor or felony who paid

any part of the fines, fees, or court costs assessed against him on or after the thirty-

first day following the date of judgment. See TEX. LOCAL GOV’T CODE ANN. §

133.103(a) (amended and recodified at TEX. CODE CRIM. PROC. ANN. art. 102.030).

The statute required the time-payment fee to be allocated in three ways: subsection

(b) directed that 50% was to be sent to the comptroller for deposit in the general

revenue fund; subsection (c) stated that 10% was to be deposited in the general fund

of the county or municipality “for the purpose of improving the efficiency of the

administration of justice in the county or municipality”; and subsection (d) stated the

remaining fees (40%) were to be deposited in the general revenue account of the

county or municipality. See id. § (b)–(d).

In Ovalle v. State, on which Appellant now relies, we held that the allocation

of 90% of time-payment fees into general revenue funds under subsections (b) and

(d) violated the separation-of-powers provision of the Texas Constitution. See 592

S.W.3d 615, 618 (Tex. App.—Dallas 2020), vacated, No. PD-0127-20, 2021 WL

1938672 (Tex. Crim. App. May 12, 2021). Relying on the Texas Court of Criminal

Appeals’ holding in Salinas v. State, we concluded that allocating 90% of the time-

payment fee into general revenue funds “turn[ed] the courts into tax gatherers” and

–20– “impermissibly delegate[d] to the courts a power more properly attached to the

executive branch.” See id. (citing Salinas v. State, 523 S.W.3d 103, 107 (Tex. Crim.

App. 2017)). Ovalle was appealed to the court of criminal appeals, along with several

other cases from across the state holding the time-payment fee unconstitutional. In

May 2021, while this appeal was pending, the court of criminal appeals issued its

opinion in Dulin v. State, in which the Court held:

The pendency of an appeal stops the clock for purposes of the time payment fee. Consequently, the assessment of the time payment fees in Appellant’s case is premature, and the fees should be struck in their entirety, without prejudice to them being assessed later if, more than 30 days after the issuance of the appellate mandate, the defendant has failed to completely pay any fine, court costs, or restitution that he owes.

620 S.W.3d 129, 133 (Tex. Crim. App. 2021). The Court declined to reach the

question of the statute’s constitutionality. See id. at 133 n.29 (explaining that courts

should avoid the adjudication of constitutional issues if the case can be resolved on

other grounds). In a separate opinion, the Court vacated our judgment in Ovalle and

remanded the case to us to determine whether, in light of Dulin, the time-payment

fee should be stricken in its entirety. Ovalle v. State, No. PD-0127-20, 2021 WL

1938672, at *1 (Tex. Crim. App. May 12, 2021). On remand, we determined that the

entire time-payment fee should be stricken as premature and modified the judgment

accordingly. Ovalle v. State, No. 05-19-00136-CR, 2021 WL 3377873, at *2 (Tex.

App.—Dallas Aug. 3, 2021, no pet.).

–21– The State argues that we cannot impose the same remedy here because the

time-payment fees in this case appear only on the bills of costs and not in the

judgments. According to the State, our authority to modify a judgment does not

extend to a bill of costs. See TEX. R. APP. P. 43.2 (allowing a court of appeals to

affirm, modify, reverse, or vacate a judgment). We disagree. “[W]e are authorized

on direct appeal to order a modification of a bill of costs independent of finding an

error in the trial court’s judgment.” See Bryant v. State, No. 10-18-00352-CR, 2021

WL 3191937, at *2 (Tex. App.—Waco July 28, 2021, no pet.) (modifying the bill

of costs to remove the time-payment fee after remand from the court of criminal

appeals in light of Dulin); see also Dority v. State, No. 11-19-00236-CR, 2021 WL

3087479, at *11 (Tex. App.—Eastland July 22, 2021, no pet.) (“When the trial court

clerk erroneously includes fees as court costs, we should modify the bill of costs to

remove the improperly assessed fees.”). Accordingly, we modify the bill of costs in

each case to remove the $25 time-payment fees. We do not reach Appellant’s

constitutional complaints.

C. Other Modifications

In his sixth and seventh issues, Appellant argues that we should modify the

judgment to reflect that there was no plea bargain agreement. The State agrees. The

Code of Criminal Procedure requires that the judgment accurately reflect the terms

of any plea bargain. See TEX. CODE CRIM. PROC. art. 42.01(20). The record reflects

–22– that Appellant declined the State’s plea bargain offer. We therefore sustain

Appellant’s sixth and seventh issues and modify the judgments to reflect that there

was no plea bargain agreement.

We note also that the solicitation judgment lists the wrong statute for the

offense Appellant was convicted of. The Code of Criminal Procedure requires that

the judgment accurately reflect the offense or offenses for which the defendant was

convicted. See TEX. CODE CRIM. PROC. art. 42.01(13). Here, the judgment states that

the “Statute for Offense” is “19.03(A)(3) Penal Code.” That statute refers to capital

murder. See TEX. PENAL CODE ANN. § 19.03(a)(3). Appellant was convicted of

solicitation to commit capital murder. Criminal solicitation is codified at section

15.03(a) of the Penal Code. See TEX. PENAL CODE ANN. § 15.03(a). Neither party

raised this issue, but we have a duty to modify the judgment to make the record speak

the truth, “and such duty is not dependent upon a request by either party.” See

Asberry, 813 S.W.2d at 531. We therefore modify the solicitation judgment on our

own motion to reflect that Appellant was convicted under Section 15.03(a) of the

Penal Code. See Goerdel v. State, No. 05-19-00389-CR, 2020 WL 5814484, at *1

(Tex. App.—Dallas Sept. 30, 2020, pet. ref’d) (mem. op., not designated for

publication) (modifying judgment to reflect conviction under solicitation statute

rather than statute for the underlying offense).

–23– D. Modifications on Rehearing

For the first time in his motion for rehearing, Appellant asks us to further

modify the solicitation judgment to reflect court costs in effect prior to the effective

date of the Cost Act. Although we have the discretion to do so, we are “not required

to entertain a new argument from an appellant . . . for the first time on rehearing.”

State v. Gobert, 275 S.W.3d 888, 891 (Tex. Crim. App. 2009); see also Hughes v.

State, 878 S.W.2d 142, 151 (Tex. Crim. App. 1992) (op. on reh’g) (“[T]here are

times when, ‘as justice requires’ or ‘in the interest of justice,’ an appellate court may

consider a supplemental brief or a motion for rehearing to decide an issue not

presented in the original briefs.”). We generally decline to exercise that discretion

because “[p]resentation of points of error in a piecemeal fashion is inimical to the

interests of orderly appellate procedure and judicial economy.” Adams v. State, 843

S.W.2d 174, 176 (Tex. App.—Dallas 1992, no pet.). However, this case presents us

with a rare set of facts we believe justify our exercise of discretion to consider

Appellant’s motion. First, ordinary error-preservation rules do not apply; a criminal

defendant is not required to object to the bases for costs assessed against him in the

trial court and may raise the issue for the first time on appeal. Johnson, 423 S.W.3d

at 391; see also id. at 390. (“Court costs are not part of the guilt or sentence of a

criminal defendant; nor must they be proven at trial; rather, they are a ‘nonpunitive

recoupment of the costs of judicial resources expended in connection with the trial

–24– of the case.’”). Second, the State agrees with Appellant and urges us to grant his

requested relief. And third, we could have resolved the issue sua sponte in our

original opinion, as we did above with the issue regarding the statute of Appellant’s

conviction for solicitation to commit capital murder. See Asberry, 813 S.W.2d at

531. Indeed, our duty to reform judgments to make the record speak the truth is

exercised in the aid of judicial economy, not in contravention of it. See id. Where,

as here, the State concedes the error, we serve neither the interest of justice nor

judicial economy by sending the parties back to the trial court to resolve the issue,

potentially opening the door to further error and another appeal. See id. (“For an

appellate court to ignore its duty to correct the record to speak the truth when the

matter has been called to its attention by any source, and when it has the necessary

data to do so, and to force a later nunc pro tunc proceeding in the trial court ensuring

the possibility of another appeal in the same case, as happened here, does nothing to

aid judicial economy.”). We will therefore consider the merits of Appellant’s motion

for rehearing.

As previously mentioned, the Cost Act overhauled the statutory cost scheme

in criminal cases. Act of May 23, 2019, 86th Leg., R.S., ch. 1352, 2019 Tex. Gen.

Laws 3982. Relevant here, the Cost Act increased the state consolidated fee from

$133.00 to $185.00. See id. § 1.03 (amending TEX. LOCAL GOV’T CODE ANN. §

133.102(a)). The Cost Act also created a new “Local Consolidated Fee,” which

–25– combined previously authorized costs, plus two new costs, into one section of the

Local Government Code. See id. § 1.05 (enacting TEX. LOCAL GOV’T CODE ANN. §

134.101). The table below compares costs under the new and old laws.

Fees Authorized by Fees Formerly Description the Cost Act6 ($) Authorized7 ($) State Consolidated Fee 185.00 133.00 Local Consolidated Fee N/A Clerk’s fee 40.00 40.00 Jury fee 1.00 N/A Technology fee 4.00 4.00 Courthouse security fee 10.00 5.00 County records mgmt. fee 25.00 25.00 Specialty court fee 25.00 N/A Total 290.00 207.00

Here, Appellant was charged the Cost Act amounts we have already held do

not apply to Appellant’s conviction. Under the statutes in effect at the time Appellant

committed solicitation to commit capital murder, the trial court was authorized to

assess $207 against Appellant for that conviction. We therefore sustain Appellant’s

motion for rehearing and modify the solicitation judgment to remove the

unauthorized costs. See Hayes, 2021 WL 1418400, at *2.

6 We note that section 134.101 lists percentages, not dollar amounts. For example, the allocation for the clerk of the court account is “38.0953 percent” of the $105 total, or $40.000065. See TEX. LOCAL GOV’T CODE ANN. § 134.101. Rounding off the few thousandths of a penny, the fee becomes $40.00. For ease of reference and comparison, we list the dollar amounts here. 7 The Clerk’s Fee and County Records Management Fee were authorized by article 102.005(a) of the Code of Criminal Procedure, which the Cost Act repealed. The Court House Security Fee was authorized by article 102.017 of the Code of Criminal Procedure, which, was amended, and the cost increased from $5.00 to $10.00, by the Cost Act. The CDC Technology Fee was authorized by article 102.0169 of the Code of Criminal Procedure, which was amended by the Cost Act, though the $4.00 charge remained the same. Finally, the Jury Fee and Specialty Court Fee were newly added by the Cost Act.

–26– CONCLUSION

We conclude that Appellant failed to show that his counsel rendered

ineffective assistance and overrule his first and second issues. We partially sustain

Appellant’s remaining issues and modify the judgments and bills of costs as follows:

1. In the judgment in Cause No. F16-75561-H: (i) we remove the words “20 YEARS TDC - $0.00 FINE” from the space beneath “Terms of Plea Bargain”; and (ii) we remove “$640.00” from the space beneath “Court Costs” and insert “$350.00” in its place.

2. We remove the following charges from the bill of costs in Cause No. F16-75561-H: (i) CLK $40.00, (ii) JURY $1.00, (iii) TECH $4.00, (iv) CHSF $10.00, (v) CCC $185.00, (vi) CCRM $25.00, and (vii) IP PLN $25.00. We further modify the “Amount Assessed,” the “Unpaid Balance,” and the “Adjusted Balance” of said bill of costs by removing the amount “$665.00” and replacing it with “$350.00.”

3. In the judgment in Cause No. F18-76586-H: (i) we remove the words “19.03(A)(3) Penal Code” from the space beneath “Statute for Offense” and insert the words “15.03(a) Penal Code” in their place; (ii) we remove the words “35 YEARS TDC - $0.00 FINE” from the space beneath “Terms of Plea Bargain”; and (3) we remove “$340.00” from the space beneath “Court Costs” and insert “$207.00” in its place.

4. We remove the following charges from the bill of costs in Cause No. F18-76586-H: (i) JURY $1.00, (ii) SPC $25.00, (iii) DNAF2 $50.00, and (iv) IP PLN $25.00. We modify the charge for CCC by removing the amount $185.00 and replacing it with $133.00. We modify the charge for CHSF by removing the amount $10.00 and replacing it with $5.00. We modify the “Amount Assessed,” the “Unpaid Balance,” and the “Adjusted Balance” of said bill of costs by removing the amount “$365.00” and replacing it with “$207.00.”

–27– As modified, we affirm the trial court’s judgments.

/Bonnie Lee Goldstein/ BONNIE LEE GOLDSTEIN JUSTICE

Do Not Publish TEX. R. APP. P. 47.2(b) 200185HF.U05

–28– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

DANIEL ARTURO CONTRERAS, On Appeal from the Criminal District Appellant Court No. 1, Dallas County, Texas Trial Court Cause No. F16-75561-H. No. 05-20-00185-CR V. Opinion delivered by Justice Goldstein. Justices Molberg and THE STATE OF TEXAS, Appellee Smith participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

We REMOVE the words “20 YEARS TDC - $0.00 FINE” from the space beneath “Terms of Plea Bargain”; and

We REMOVE “$640.00” from the space beneath “Court Costs” and INSERT “$350.00” in its place.

Additionally, the trial court’s bill of costs is MODIFIED as follows:

We REMOVE the following charges: (i) CLK $40.00, (ii) JURY $1.00, (iii) TECH $4.00, (iv) CHSF $10.00, (v) CCC $185.00, (vi) CCRM $25.00, and (vii) IP PLN $25.00; and

We REMOVE the amount “$665.00” from the entries for “Amount Assessed,” “Unpaid Balance,” and “Adjusted Balance” and INSERT “$350.00” for each entry.

As REFORMED, the judgment is AFFIRMED.

Judgment entered December 23, 2021

–29– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

DANIEL ARTURO CONTRERAS, On Appeal from the Criminal District Appellant Court No. 1, Dallas County, Texas Trial Court Cause No. F18-76586-H. No. 05-20-00186-CR V. Opinion delivered by Justice Goldstein. Justices Molberg and THE STATE OF TEXAS, Appellee Smith participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

We REMOVE the words “19.03(A)(3) Penal Code” from the space beneath “Statute for Offense” and INSERT the words “15.03(a) Penal Code” in their place;

We REMOVE the words “35 YEARS TDC - $0.00 FINE” from the space beneath “Terms of Plea Bargain”; and

We REMOVE “$340.00” from the space beneath “Court Costs” and INSERT “$207.00” in its place.

Additionally, the trial court’s bill of costs is MODIFIED as follows:

We REMOVE the following charges: (i) JURY $1.00, (ii) SPC $25.00, (iii) DNAF2 $50.00, and (ii) IP PLN $25.00;

We REMOVE the amount $185.00 from the entry for “CCC” and INSERT $133.00 in its place;

We REMOVE the amount $10.00 from the entry for “CHSF” and INSERT $5.00 in its place; and

–30– We REMOVE the amount “$365.00” from the entries for “Amount Assessed,” “Unpaid Balance,” and “Adjusted Balance” and INSERT “$207.00” for each entry.

As REFORMED, the judgment is AFFIRMED.

Judgment entered December 23, 2021

–31–