Gabriel Rayo v. State

• Court: Court of Appeals of Texas
• Decided: January 29, 2018
• Docket: 05-17-00500-CR
• Status: Published

Opinion

Affirmed as Modified and Opinion Filed January 29, 2018

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-00500-CR No. 05-17-00501-CR No. 05-17-00502-CR No. 05-17-00503-CR GABRIEL RAYO, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause No. F15-31103-U, F16-53860-U, F16-53861-U, F16-76650-U

MEMORANDUM OPINION Before Justices Francis, Evans, and Boatright Opinion by Justice Francis Gabriel Rayo brings five issues asking this Court to reform the trial court’s judgments in

the above referenced causes. In his first four issues, appellant contends the judgments

incorrectly state the amount of court costs in all four causes. In his fifth issue, appellant requests

the judgment be reformed in trial court cause number F16-76650-U to accurately reflect the

correct penal code provision under which he was adjudicated guilty. The State agrees the

reformations requested by appellant should be made. After reviewing the record, we reform the

trial court’s judgments in all four causes, and affirm the judgments as modified.

Appellant was indicted in two causes for possession with intent to deliver a controlled

substance. In the two other causes, appellant was indicted for assault of a public servant and evading arrest using a vehicle. Appellant entered an open plea of guilty and judicially confessed

to all charges. He also pleaded true to all alleged enhancement paragraphs. The trial court

accepted appellant’s pleas and rendered judgments of conviction in all four cases. Appellant was

sentenced in each case to twenty years in prison with the sentences to run concurrently.

The imposition of court costs on a convicted defendant is mandated by statute where the

punishment assessed is anything other than a fine. See TEX. CODE CRIM. PROC. ANN. art. 42.16

(West 2006). Appellant does not challenge the assessment of costs against him. He contends

only the amount of costs imposed by the judgments is not supported by the record because the

certified bill of costs in each case reflects a different amount than the amount imposed. In cause

number F15-31103-U, the trial court assessed costs in the amount of $309, but the bill of costs

shows a balance due of $284. The judgment in cause number F16-53860-U assessed costs of

$249 and the bill of costs shows a balance of $224. The assessed costs in F16-53861-U are $309

while the bill of costs shows a balance of $284. And, finally, the judgment in cause number F16-

76650-U assesses costs of $299 and the bill of costs shows a balance of $274.

The certified bills of costs are the only basis in the records of each case for the imposition

of costs against appellant. See id. art. 103.001. Appellant does not challenge the propriety of

any of the costs in the bills. Accordingly, we agree with appellant and the State that the

judgments in each case should be reformed to reflect the amount of costs listed in the certified

bills of costs. We have the power to modify incorrect judgments when the necessary information

is available to do so. See TEX. R. APP. P.43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim.

App. 1993); Abron v. State, 997 S.W.2d 281, 282 (Tex. App.—Dallas no pet.). We resolve

appellant’s first four issues in his favor.

In his fifth issue, appellant contends the judgment in cause number F16-76650-U

inaccurately states the penal code section under which he was convicted. The judgment shows

–2– appellant was convicted of the third degree felony offense of assault of a public servant. The

statute for the offense is listed in the judgment as section 22.01(b) of the penal code. Section

22.01(b) lists multiple ways in which the offense of assault may be committed such that it would

be classified as a third degree felony. TEX. PENAL CODE ANN. § 22.01(b) (West Supp. 2017).

Only subsection (b)(1) involves assault being committed against a “public servant.” Id. §

22.01(b)(1). The State agrees with appellant that the judgment should more accurately state he

was convicted under section 22.01(b)(1). Such a change is properly done by reformation of the

judgment in this Court. See Asberry v. State, 813 S.W.2d 526, 530 (Tex. App.—Dallas 1991,

pet. ref’d); Figueroa v. State, No. 05-15-00387-CR, 2017 WL 2289031, at *4 (Tex. App.—

Dallas May 25, 2017, no pet.) (mem. op.). We resolve appellant’s fifth issue in his favor.

Based on the foregoing, we modify the trial court’s judgments in all four causes to reflect

the correct amount of court costs. We further modify the judgment in trial court cause number

F16-76650-U to more accurately reflect the statute under which appellant was convicted. As

modified, the judgments are affirmed.

/Molly Francis/ MOLLY FRANCIS JUSTICE

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

170500F.U05

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

GABRIEL RAYO, Appellant On Appeal from the 291st Judicial District Court, Dallas County, Texas No. 05-17-00500-CR V. Trial Court Cause No. F15-31103-U. Opinion delivered by Justice Francis. THE STATE OF TEXAS, Appellee Justices Evans and Boatright participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows: The amount listed under "Court Costs" is MODIFIED to read "$284." As REFORMED, the judgment is AFFIRMED.

Judgment entered January 29, 2018.

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

GABRIEL RAYO, Appellant On Appeal from the 291st Judicial District Court, Dallas County, Texas No. 05-17-00501-CR V. Trial Court Cause No. F16-53860-U. Opinion delivered by Justice Francis. THE STATE OF TEXAS, Appellee Justices Evans and Boatright participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows: The amount listed under "Court Costs" is MODIFIED to read "$224." As REFORMED, the judgment is AFFIRMED.

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

GABRIEL RAYO, Appellant On Appeal from the 291st Judicial District Court, Dallas County, Texas No. 05-17-00502-CR V. Trial Court Cause No. F16-53861-U. Opinion delivered by Justice Francis. THE STATE OF TEXAS, Appellee Justices Evans and Boatright participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows: The amount listed under "Court Costs" is MODIFIED to read "$284." As REFORMED, the judgment is AFFIRMED.

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

GABRIEL RAYO, Appellant On Appeal from the 291st Judicial District Court, Dallas County, Texas No. 05-17-00503-CR V. Trial Court Cause No. F16-76650-U. Opinion delivered by Justice Francis. THE STATE OF TEXAS, Appellee Justices Evans and Boatright participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows: The amount listed under "Court Costs" is MODIFIED to read "$274." The statute listed under “Statute for Offense” is MODIFIED to read “22.01(b)(1) Penal Code.” As REFORMED, the judgment is AFFIRMED.

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