Enrique Akil Diaz v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: January 12, 2024
• Docket: 06-23-00183-CR
• Status: Published

Opinion

In the Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-23-00183-CR

ENRIQUE AKIL DIAZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law Harrison County, Texas Trial Court No. 2023-0090

Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Justice van Cleef MEMORANDUM OPINION

Enrique Akil Diaz was convicted by a Harrison County jury of driving while intoxicated

and assessed a sentence of 180 days in jail. The trial court’s written judgment also assessed Diaz

court-appointed attorney fees of $450.00 and court costs of $420.00. On appeal, Diaz complains

that (1) the information contained fundamental error because it was not signed by the district

attorney, (2) insufficient evidence supported the assessment of attorney fees, (3) the judgment

assessed costs that are no longer authorized, and (4) the judgment should be modified to reflect

Diaz’s plea of not guilty. We find that Diaz forfeited his complaint regarding a defect in the

information. However, because insufficient evidence supported the assessment of attorney fees

and the judgment assessed an unauthorized cost and incorrectly stated Diaz’s plea, we will

modify the judgment and bill of costs as necessary and affirm the trial court’s judgment, as

modified.

I. Diaz Forfeited His Complaint Regarding a Defect in the Information

The information in this case charged Diaz with DWI on May 10, 2021.1 Although the

information recited that it was brought by “JAMES WOODRING, Assistant Criminal District

Attorney of Harrison County, Texas,” it was not signed by either the district or county attorney.

Diaz asserts that, because the information lacked the signature of the district attorney, it

contained fundamental error that deprived the trial court of jurisdiction.

The Texas Constitution provides,

(b) An indictment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense. An information is a written

1 See TEX. PENAL CODE ANN. § 49.01(2)(A), § 49.04(a), (b) (Supp.). 2 instrument presented to a court by an attorney for the State charging a person with the commission of an offense. The practice and procedures relating to the use of indictments and informations, including their contents, amendment, sufficiency, and requisites, are as provided by law. The presentment of an indictment or information to a court invests the court with jurisdiction of the cause.

TEX. CONST. art. V, § 12(b). Regarding the contents of an information, the Texas Code of

Criminal Procedure provides, among other things, that “[i]t must be signed by the district or

county attorney, officially.” TEX. CODE CRIM. PROC. ANN. art. 21.21(9).

Under Article V, Section 12(b), “to vest the court with both personal and subject[-]matter

jurisdiction, the indictment [or information] must (1) charge a person, and it must (2) charge the

commission of an offense.” Jenkins v. State, 592 S.W.3d 894, 898 (Tex. Crim. App. 2018)

(citing TEX. CONST. art. V, § 12(b)). Further, “the mere presentment of the indictment or

information, rather than the substance of the indictment, confers jurisdiction on the trial court.”

Walker v. State, 594 S.W.3d 330, 339 (Tex. Crim. App. 2020) (citing TEX. CONST. art. V, § 12).

Diaz does not contend that the information did not charge him or that it did not charge the

commission of an offense. He also does not assert that the information was not presented to the

trial court. Rather, he only contends that the information is defective because it did not meet the

requisites of Article 21.21 when it failed to include the signature of the district or county

attorney.

However, pursuant to the Texas Code of Criminal Procedure,

If the defendant does not object to a defect, error, or irregularity of form or substance in an indictment or information before the date on which the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in any other postconviction proceeding.

3 TEX. CODE CRIM. PROC. ANN. art. 1.14(b). Because Diaz did not assert that the information

failed to satisfy the constitutional requirement, he was required to “make a pretrial objection to a

[form or] substance defect in the information . . . or forfeit the right to complain about it on

appeal.” Smith v. State, 309 S.W.3d 10, 18 (Tex. Crim. App. 2010) (citing Studer v. State, 799

S.W.2d 263, 271 (Tex. Crim. App. 1990)).

The record in this case does not show that Diaz asserted any pretrial complaint that the

information was defective because it lacked the signature of the district or county attorney. As a

result, he has forfeited his right to raise this complaint on appeal. Id.; TEX. CODE CRIM. PROC.

ANN. art. 1.14(b).

II. Insufficient Evidence Supported the Assessment of Attorney Fees

In its written judgment, the trial court assessed Diaz $450.00 for his court-appointed

attorney fees, and the clerk’s certified bill of costs includes a charge for $450.00 for attorney

fees. Diaz asserts in his first issue that there was insufficient evidence to support the assessment

of those attorney fees and asks that those fees be deleted from the judgment.2 The State agrees

that the trial court erred when it assessed the attorney fees and that they should be deleted.

Article 26.05(g) of the Texas Code of Criminal Procedure authorizes the trial court to

order the reimbursement of the fees of court-appointed counsel only “[i]f the judge determines

that a defendant has financial resources that enable [him] to offset in part or in whole the costs of

the legal services provided . . . , including any expenses and costs.” TEX. CODE CRIM. PROC.

ANN. art. 26.05(g) (Supp.). “[T]he defendant’s financial resources and ability to pay are explicit

2 We are authorized to modify a judgment “to make the record speak the truth when the matter has been called to [our] attention by any source.” French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). 4 critical elements in the trial court’s determination of the propriety of ordering reimbursement of

costs and fees” of legal services provided. Armstrong v. State, 340 S.W.3d 759, 765–66 (Tex.

Crim. App. 2011) (alteration in original) (quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex.

Crim. App. 2010)). Also, “[a] defendant who is determined by the court to be indigent is

presumed to remain indigent for the remainder of the proceedings in the case unless a material

change in the defendant’s financial circumstances occurs.” Mayer v. State, 309 S.W.3d 552, 557

(Tex. Crim. App. 2010) (alteration in original) (quoting TEX. CODE CRIM. PROC. ANN. art.

26.04(p)).

The record shows that the trial court determined that Diaz was indigent and that he was

appointed counsel both at trial and on appeal. Because the trial court found Diaz indigent during

the trial proceedings, he was “presumed to remain indigent absent proof of a material change in

h[is] circumstances.” Walker v. State, 557 S.W.3d 678, 689 (Tex. App.—Texarkana 2018, pet.

ref’d); see TEX. CODE CRIM. PROC. ANN. art. 26.04(p) (Supp.), art. 26.05(g). Since there is no

evidence in the record of a material change in Diaz’s circumstances, we find that the trial court

erred when it assessed court-appointed attorney fees. We sustain this issue. As a result, we will

delete the attorney fee assessment from the judgment and the bill of costs.

III. Other Modifications to the Judgment and Bill of Costs

In his second issue, Diaz challenges some of the costs assessed in the trial court’s

judgment and bill of costs and asserts that they were either not authorized by statute when Diaz

5 committed the offense or not supported by the record. As to the costs that were not authorized

by statute, the State agrees with his analysis.3

“Only statutorily authorized court costs may be assessed against a criminal defendant.”

Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014) (citing TEX. CODE CRIM. PROC.

ANN. art. 103.002). On appeal, “we review the assessment of court costs . . . to determine if

there is a basis for the cost.” Id. at 390. We examine the record to determine whether the trial

court was authorized to assess the challenged costs against Diaz.

Diaz contends that the following costs designated in the bill of costs were not authorized

to be assessed against him:

Fee Description Charges Clerk of the Court Account $40.00 County Court Technology $4.00 County Jury Fund $1.00 County Records Mgmt $25.00 County Specialty Court Account $20.00 Court Reporter Service Fund $3.00 Courthouse Security Fund $10.00 Prosecutors Fees $20.00

The costs total $123.00 for these eight accounts and funds. Diaz points out that, although these

costs were authorized to be assessed against persons convicted of an offense committed before

January 1, 2020, they are not authorized to be assessed against persons, such as him, convicted of

an offense committed on or after January 1, 2020. We agree that the Texas Legislature repealed

those portions of the prior statutes that authorized the assessment of the specific cost amounts for

3 “We, of course, are not bound by any agreement or concessions by the parties on an issue of law.” Oliva v. State, 548 S.W.3d 518, 520 (Tex. Crim. App. 2018) (citing Rhodes v. State, 240 S.W.3d 882, 885 n.3 (Tex. Crim. App. 2007)). 6 each of these cost categories for persons convicted of offenses committed on or after January 1,

2020. See Act of May 23, 2019, 86th Leg., R.S., ch. 1352, §§ 1.07, 1.08, 1.19(2), (3), (4), (6),

5.01, 5.04, 2019 Tex. Gen. Laws 3981, 3988–89, 3992, 4035.

However, in that same act, the Legislature added Section 134.102 to the Texas Local

Government Code, which authorized a local consolidated fee in the amount of $123.00 to be

assessed against “[a] person convicted of a Class A or Class B misdemeanor” committed on or

after January 1, 2020. See Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 1.05, sec.

134.102(a), 2019 Tex. Gen. Laws 3981, 3985 (amended 2023) (current version at TEX. LOC.

GOV’T CODE § 134.102). That statute directs the county treasurer to allocate the court costs

collected under Section 134.102 to the same eight accounts and funds listed above “so that each

receives to the extent practicable . . . the same amount of money the account or fund would have

received if the court costs for the accounts and funds had been collected and reported

separately.” Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 1.05, sec. 134.102(b), 2019 Tex.

Gen. Laws 3981, 3985 (amended 2023).

As a result, the trial court was authorized to assess a local consolidated fee of $123.00,

which will be allocated to the eight accounts and funds listed above. However, because the bill

of cost incorrectly designated these costs separately, we will modify the bill of costs by deleting

the costs for each of these individual accounts and funds and by adding a “Local Consolidated

Fee” of $123.00. Because the amount of the consolidated fee is equal to the total amount of the

individual costs charged, the trial court’s judgment will not be affected by this change.

7 Diaz also challenges the assessment of $10.00 for “CRIME STOPPER FUND,” as shown

in the bill of costs. Under the applicable law, there was no statutory authorization for the

assessment of a separate cost charge for a Crime Stoppers Fund. Rather, the trial court was

authorized to assess $147.00 against a person, such as Diaz, convicted of a class A or class B

misdemeanor. See Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 1.03, sec. 133.102(a), 2019

Tex. Gen. Laws 3982, 3982–83 (amended 2023) (current version at TEX. LOC. GOV’T CODE

§ 133.102). Under that statute, a portion of the money collected was allocated to a “crime

stoppers assistance account.” Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 1.03, sec.

133.102(c), (e)(1), 2019 Tex. Gen. Laws 3981, 3982–83 (amended 2023). The bill of costs

included a charge of $147.00 for “State Consolidated Court Costs–County.” As a result, the

separate charge for “CRIME STOPPER FUND” was unauthorized and duplicative. For that

reason, we will modify the bill of costs by deleting the charge for “CRIME STOPPER FUND,”

and we will modify the judgment by reducing the amount assessed for court costs by $10.00.

Diaz also asserts that the assessment of $5.00 for “Marshall Police Department” has no

support in the record. Nevertheless, Diaz admits that this “fee is presumably a peace officer

arrest without a warrant fee,” citing Article 102.011(e) of the Texas Code of Criminal Procedure.

See TEX. CODE CRIM. PROC. ANN. art. 102.011(e). Article 102.011 authorizes the assessment of

$5.00 against a defendant convicted of a felony or a misdemeanor for a peace officer “making an

arrest without a warrant.” TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(1). The record shows

that a peace officer with the Marshall Police Department arrested Diaz without a warrant.

8 Because this cost is authorized by statute and there is a basis for the cost in the record, we find

that the assessment of this cost was proper. See Johnson, 423 S.W.3d at 389–90.

The trial court’s judgment recites that Diaz entered a plea of “GUILTY.” However, the

record shows that Diaz pled “[n]ot guilty,” and he asks that we modify the judgment to correctly

recite his not guilty plea. We sustain this issue.

IV. Disposition

For the reasons stated, we modify the bill of costs by deleting the assessments for

“Attorney Fees,” “Clerk of the Court Account,” “County Court Technology,” “County Jury

Fund,” “County Records Mgmt,” “County Specialty Court Account,” “Court Reporter Service

Fund,” “Courthouse Security Fund,” “Prosecutors Fees,” and “CRIME STOPPER FUND,” by

adding an assessment of $123.00 for “Local Consolidated Fee,” and by changing the total court

costs to $410.00. We modify the trial court’s judgment by deleting the assessment for “ATTY

FEE,” by changing the “COURT COST” to $410.00, and by changing the “Plea” to “NOT

GUILTY.” As modified, we affirm the trial court’s judgment.

Charles van Cleef Justice

Date Submitted: January 3, 2024 Date Decided: January 12, 2024

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