Juan Francisco Avila v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: February 6, 2024
• Docket: 05-22-00727-CR
• Status: Published

Opinion

Affirmed as Modified and Opinion Filed February 6, 2024

In The Court of Appeals Fifth District of Texas at Dallas

No. 05-22-00727-CR

JUAN FRANCISCO AVILA, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause No. F-1958617-H

MEMORANDUM OPINION Before Justices Garcia, Goldstein, and Miskel Opinion by Justice Miskel Appellant Juan Francisco Avila was convicted of aggravated sexual assault of

a child under the age of fourteen years and was sentenced to seventy-five years of

imprisonment after a multi-day jury trial. TEX. PENAL CODE § 22.021(a)(2)(B). In

three live issues, Avila argues that the trial court erred in (1) admitting the expert

testimony of the State’s psychologist, which was based on her review of an academic

study; (2) admitting the State’s Exhibit No. 21 (containing the child’s therapy

records) over his cumulative hearsay objections and allowing the psychologist to

testify to opinions based on her review of the hearsay evidence; and (3) excluding evidence of Avila’s immigration status and additional mitigation evidence at the

punishment stage. At oral argument, Avila’s counsel withdrew his fourth issue

complaining about the jury charge. We modify the judgment to reflect the correct

amount of costs awarded against Avila and otherwise affirm the judgment as

modified.

I. BACKGROUND On September 19, 2019, Avila’s young stepdaughter “Deborah”1 reported to

her elementary school counselor that Avila had been sexually abusing her. The

counselor phoned police and child protective services to report the outcry. The

police took the child for a forensic interview. The Assistant Director of Forensic

Services at the Dallas Children’s Advocacy Center (“CAC”) interviewed the child.

Deborah described multiple incidents of sexual abuse Avila committed against her

beginning in her third-grade year.

The investigation revealed that Deborah had made an outcry to her mother

about the abuse some time before making the September 2019 report to her

elementary school counselor. The mother had suspected something was wrong when

she caught Avila leaving Deborah’s bedroom late one night, in total darkness. The

next day the mother asked the child whether Avila had touched her, and Deborah

1 We use an alias to protect the minor’s identity.

–2– described how Avila had sexually abused her. The mother called her pastor; the

pastor and his wife came to the home and Deborah again detailed the abuse.

Avila was indicted and proceeded to a jury trial where the jury convicted him

of aggravated sexual assault of a child under fourteen years of age. TEX. PENAL

CODE § 22.021(a)(2)(B). The jury assessed Avila’s punishment at seventy-five

years’ imprisonment. This appeal followed.

II. THE COMPLAINT ABOUT IRRELEVANT EXPERT TESTIMONY WAS NOT PRESERVED FOR REVIEW In his first issue, Avila contends that the trial court committed reversible error

by admitting irrelevant testimony by the State’s psychologist Dr. Doskey at the

punishment stage. However, the record reflects that, at the punishment phase,

Avila’s counsel lodged no objections to the admissibility of the psychologist’s

testimony and, therefore, preserved no alleged error for our review. TEX. R. APP. P.

33.1(a).

A. Standard of Review and Applicable Law Texas Rule of Appellate Procedure 33.1 governs error preservation and

requires that a complaint must be “made to the trial court by a timely request,

objection, or motion that ... state[s] the grounds for the ruling that the complaining

party sought from the trial court with sufficient specificity to make the trial court

aware of the complaint, unless the specific grounds were apparent from the

context[.]” TEX. R. APP. P. 33.1(a)(1)(A). Although no “hyper-technical or

formalistic use of words or phrases” is necessary to preserve error, the complaining –3– party must notify the trial judge about what he wants, why he thinks he is entitled to

it, and must do so clearly enough for the judge to understand him at a time when the

judge is in the proper position to do something about it. Golliday v. State, 560

S.W.3d 664, 670 (Tex. Crim. App. 2018). The record must show the trial court ruled

on the party’s request, objection, or motion, either expressly or implicitly, or refused

to rule and that the complaining party objected to the trial court’s refusal. TEX. R.

APP. P. 33.1(a)(2).

To preserve error in admitting evidence, a party must object each time the

alleged inadmissible evidence is offered or obtain a running objection. Valle v. State,

109 S.W.3d 500, 509 (Tex. Crim. App. 2003). An error in the admission of evidence

is cured where the same evidence comes in elsewhere without objection. Id. The

requirement of error preservation “generally applies to all complaints except those

that involve rules that are ‘waivable only’ or ‘systematic’ (or ‘absolute’)

requirements.” London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016).

“[A]ll other complaints, whether constitutional, statutory, or otherwise, are forfeited

by failure to comply with Rule 33.1(a).” Mendez v. State, 138 S.W.3d 334, 342 (Tex.

Crim. App. 2004).

Our Court of Criminal Appeals has “consistently held that the failure to object

in a timely and specific manner during trial forfeits complaints about the

admissibility of evidence.” Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App.

2002). An appellant “must have made a proper and specific objection at the time the

–4– evidence was offered or excluded to preserve his right of review of that evidentiary

claim.” Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004). The alleged

error on appeal must comport with the objection made at trial. Clark v. State, 365

S.W.3d 333, 339 (Tex. Crim. App. 2012); Thomas v. State, 723 S.W.2d 696, 700

(Tex. Crim. App. 1986).

B. The Request for a Jury Instruction did Not Preserve an Objection to Admissibility Instead of lodging evidentiary objections, the record reflects that Avila’s

counsel took Dr. Doskey on voir dire about State’s Exhibit 22—a summary of a

study of the relationship between Adverse Childhood Experiences (“ACEs”) and

negative health outcomes in adulthood.2

In the punishment phase, Avila’s counsel cross-examined the State’s

psychological expert about the study’s methodology and conclusions, as well as

establishing that Deborah was not included in the ACE study and that personal

investigation into Deborah’s circumstances would be necessary to assess the actual

adult outcomes for Deborah.

2 See Vincent J. Felitti, MD, FACP et al., Relationship of Childhood Abuse and Household Dysfunction to Many of the Leading Causes of Death in Adults. The Adverse Childhood Experiences (ACE) Study, 14 Am. J. Prev. Med. 245-58 (1998); see also Kathleen Wayland, The Importance of Recognizing Trauma Throughout Capital Mitigation Investigations and Presentations, 36 Hofstra L. Rev. 923, 927 (2008); Adverse Childhood Experiences (ACEs), Ctrs. for Disease Control & Prevention, https://www.cdc.gov/violenceprevention/aces/about.html/ (last visited February 1, 2024).

–5– After completing his voir dire of the State’s psychologist expert Dr. Doskey,

Avila’s counsel stated, “That’s all Your Honor. I would ask that the jury be

instructed that this is just general information and has nothing to do with the case at

hand regarding this child or any prediction of what—if—I’m sorry—any prediction

of what the jury has decided upon that occurred would have in her future life.” The

Court responded, “Request for Instruction is denied. Members of the jury, all

evidence presented for you is for your consideration both as to credibility, weight,

which means significance or what you’re gonna do with it.” The trial court admitted

State’s Exhibit No. 22 into evidence. Avila’s counsel did not object to the admission

of State’s Exhibit No. 22 (the ACE study summary) or Dr. Doskey’s testimony

relating to that exhibit, and he has not argued on appeal that the trial court abused its

discretion when it denied his requested jury instruction. TEX. R. APP. P. 33.1(a)(1),

38.1(i).

On appeal, Avila argues that defense counsel’s request for a jury instruction

“amounted to an objection” to both the testimony and to Exhibit 22 as irrelevant.

However, we conclude that the request for the instruction did not preserve a

relevance objection for appellate review. TEX. R. APP. P. 33.1(a)(1)(A); Golliday v.

State, 560 S.W.3d at 670 (the complaining party must notify the trial judge about the

complaint and its basis, and must do so with clarity sufficient for the trial court to

understand it at a time when the court can act upon the complaint).

Issue one is decided against Avila.

–6– III. THE CAC RECORDS WERE NOT ADMITTED INTO EVIDENCE In his second issue, Avila argues the trial court erred in admitting State’s

Exhibit 21—the child’s records from the CAC.

We review a trial court’s decision to admit an exhibit for an abuse of

discretion. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002);

Khoshayand v. State, 179 S.W.3d 779, 784 (Tex. App.—Dallas 2005, no pet.)

(citing, inter alia, Willover v. State and holding, “[w]e review the trial court’s ruling

in light of what was before it at the time the ruling was made and uphold the ruling

if it is reasonably supported by the record and is correct under any theory of law

applicable to the case.”).

The trial record reflects that, while Avila acknowledged the business records

affidavit proving up Exhibit 21, he proceeded to object on the basis that the CAC

records contained unspecified instances of hearsay within hearsay. Avila did not

identify any of the particular entries in Exhibit 21 that he asserted constituted

cumulative hearsay. The Texas Court of Criminal Appeals has held that, under these

circumstances, Avila, as the objecting party, presents nothing for this reviewing

court to decide, and the trial court will be deemed to have properly admitted the

evidence. Jones v. State, 843 S.W.2d 487, 492 (Tex. Crim. App. 1992), overruled

on other grounds, Maxwell v. State, 48 S.W.3d 196, 200 (Tex. Crim. App. 2001),

cert. denied, 507 U.S. 1035 (1993) (“The trial court need never sort through

challenged evidence in order to segregate the admissible from the excludable, nor is

–7– the trial court required to admit only the former part or exclude only the latter part.

If the evidence is offered and challenged which contains some of each, the trial court

may safely admit it all or exclude it all, and the losing party, no matter who he is,

will be made to suffer on the appeal the consequences of his insufficiently specific

offer or objection…”).

Exhibit 21 contains the statements of the child and her mother relating to

therapy provided by the CAC. The record reflects that these statements were made

for—and reasonably pertinent to—medical diagnosis or treatment and that they

describe medical history, past or present symptoms or sensations, their inception or

their general cause and, thus, are expressly excepted from the rule against hearsay.

TEX. R. EVID. 803(4). The records do contain other administrative entries, such as

comments related to scheduling appointments. The record does not reflect that any

of the administrative entries were offered to prove the truth of the matters asserted,

and Avila does not identify or analyze any harm related to the administrative entries.

Statements by a suspected victim of child abuse as to the causation and source

of the child’s injuries are properly admissible under rule 803(4) as express

exceptions to the hearsay rule. Davidson v. State, No. 05-05-00864-CR, 2006 WL

3020403, at *2-3 (Tex. App.—Dallas June 21, 2005, pet. ref’d) (mem. op., not

designated for publication); Gregory v. State, 56 S.W.3d 164, 183 (Tex. App.—

Houston [14th Dist.] 2001, pet. dism’d); Beheler v. State, 3 S.W.3d 182, 189 (Tex.

App.—Fort Worth 1999, pet. ref’d). Further, statements made by the parent of an

–8– injured child for purposes of diagnosing or treating the child qualify as an exception

under rule 803(4). Delavega v. State, No. 05-21-00229-CR, 2022 WL 1564548, at

*4 (Tex. App.—Dallas May 17, 2022, no pet.) (mem. op., not designated for

publication); Barnes v. State, No. 05-16-01184-CR, 2017 WL 5897746, at *6 (Tex.

App.—Dallas Nov. 29, 2017, no pet.) (mem. op., not designated for publication);

Sandoval v. State, 52 S.W.3d 851, 856-57 (Tex. App.—Houston [1st Dist.] 2001,

pet. ref’d); Ponce v. State, 89 S.W.3d 110, 120 (Tex. App—Corpus Christi 2002, no

pet.).

Accordingly, under the circumstances of this case, neither the State nor the

trial court had the burden to affirmatively identify TEX. R. EVID. 803(4) as a specific

hearsay exception supporting admission of Exhibit 21 when presented with Avila’s

general and non-specified cumulative hearsay objection. See also Sewell v. State,

629 S.W.2d 42, 45 (Tex. Crim. App. 1982) (“When a trial court's ruling on the

admission of evidence is correct, although giving a wrong or insufficient reason, this

Court will not reverse if the evidence is admissible for any reason.”) (citations

omitted).

Nevertheless, the record does not show that Exhibit 21 was admitted into

evidence. When Avila objected, the trial court carefully announced that “The exhibit

is received as a court exhibit at this point and may be subject to substantial redactions

before being published before the jury in its entirety” (emphasis added). Nothing in

the record reveals that Exhibit 21 was redacted, published to the jury, or sent to the

–9– jury as an admitted trial exhibit in any form. The reporter’s record, in listing the

admitted exhibits, contains only a blank where the page and line reference for

Exhibit 21 would be had it been admitted. Finally, relative to Exhibit 21, the trial

court later instructed the jury that “the [expert] witness is permitted to testify as an

expert, having reviewed certain documents, but those documents are not available

for your consideration.”

We conclude that Avila has not shown that the trial court abused its discretion

by admitting Exhibit 21, because the record does not show that Exhibit 21 was

admitted into evidence. Further, Avila makes no effort to establish harm from any

hearsay statements in Exhibit 21 not subject to a hearsay exception. The first part

of Avila’s second issue is overruled.

IV. AN EXPERT MAY BASE OPINIONS ON INFORMATION CONTAINING HEARSAY Avila contends that Dr. Doskey should not have been allowed to review the

therapy records in Exhibit No. 21 and then testify about the trauma signs the child

and her mother communicated to the therapist along with the therapist’s recording

of their trauma symptomology scores. Avila’s argument is without merit.

A. Standard of Review and Applicable Law Experts may properly consider materials in forming their opinions, whether

or not such materials are admitted into evidence and whether or not the materials

might contain hearsay, so long as they are of the type experts in the same field

commonly rely upon. TEX. R. EVID. 703, 705. More specifically, expert witnesses

–10– may base their opinions on facts or data which are inadmissible, if such information

is commonly relied upon by experts within that same field; and the trial court will

examine the basis for the expert’s opinion and determine whether disclosure to the

jury of such facts or data would be more prejudicial than probative. Joiner v. State,

825 S.W.2d 701, 707-08 (Tex. Crim. App. 1992).

We review a trial court’s decision to admit or exclude scientific expert

testimony under an abuse of discretion standard. Sexton v. State, 93 S.W.3d 96, 99

(Tex. Crim. App. 2002). If the trial court’s ruling is within the zone of reasonable

disagreement, then the trial court’s ruling will be upheld. Id. “A witness who is

qualified as an expert by knowledge, skill, experience, training, or education may

testify in the form of an opinion or otherwise if the expert’s scientific, technical, or

other specialized knowledge will help the trier of fact to understand the evidence or

to determine a fact in issue.” TEX. R. EVID. 702.

B. The Trial Court Did Not Err in Permitting the Expert’s Testimony The State’s psychologist Dr. Doskey reviewed the therapy records contained

within Exhibit 21 and testified about how she used those therapy records to form her

own expert opinions. This is a permissible and anticipated scenario under the rules

of evidence and case law. TEX. R. EVID. 703; Gharda USA, Inc. v. Control Solutions,

Inc., 464 S.W.3d 338, 352 (Tex. 2015) (“No rule prohibits experts from using other

experts’ opinions to formulate new opinions based on their own expertise. In fact,

Texas Rule of Evidence 703 and our prior cases contemplate exactly such an

–11– arrangement.”); Anderson v. Gonzalez, 315 S.W.3d 582, 587 (Tex. App.—Eastland

2010, no pet.) (“An expert may rely on the opinions of other individuals who have

rendered reports or diagnoses.”) (citations omitted).

In accordance with the rules governing expert testimony, the trial court did

not abuse its discretion in permitting Dr. Doskey to testify about the bases for her

opinions, including her review of the therapy records in Exhibit 21. Because the

trial court did not abuse its discretion in the admission of Dr. Doskey’s testimony

based on the CAC therapy records, we overrule the second part of Avila’s second

issue.

V. THE TRIAL COURT DID NOT IMPROPERLY LIMIT MITIGATION TESTIMONY ABOUT AVILA’S IMMIGRATION STATUS OR FINANCIAL SUPPORT In his third issue, Avila contends the trial court committed an abuse of

discretion in preventing Avila from offering mitigation evidence on whether the

family’s apartment was furnished or his immigration status. During the punishment

phase, defense counsel questioned Avila about whether the family’s apartment was

furnished. The trial judge stopped the questioning and excused the jury, assuming

that the line of questioning was improperly aimed at exploring the existence of

security cameras and by extension Avila’s innocence at the punishment phase. The

trial court further limited questions about Avila’s immigration status and whether he

was subject to an immigration hold or deportation. Avila argues on appeal that it

was error for the court to limit his mitigation evidence.

–12– A. Standard of Review and Applicable Law The Texas Rules of Appellate Procedure set out two appellate standards of

review that may apply in a criminal case, one for constitutional errors and the second

for other errors. TEX. R. APP. P. 44.2(a); 44.2(b). Any non-constitutional error that

does not affect substantial rights must be disregarded. TEX. R. APP. P. 44.2(b).

The exclusion of a defendant’s evidence will be constitutional error only if

the evidence forms such a vital portion of the case that exclusion effectively

precludes the defendant from presenting a defense. Potier v. State, 68 S.W.3d 657,

659, 665 (Tex. Crim. App. 2002). Here, Avila complains not that he was barred

from presenting mitigation evidence at the punishment phase, but only that he was

not permitted to adduce specific evidence of his financial support of his family and

his immigration status. Because Avila does not raise a complaint of constitutional

dimension, we must disregard any error that does not affect his substantial rights.

TEX. R. APP. P. 44.2(b). A substantial right is not affected, and the error is harmless

if, after reviewing the entire record, the appellate court determines the error did not

influence, or had only a slight influence, on the trial outcome. Motilla v. State, 78

S.W.3d 352, 355 (Tex. Crim. App. 2002); Montez v. State, 975 S.W.2d 370, 373

(Tex. App.—Dallas 1998, no pet.).

Avila’s citation to Issa v. State, 826 S.W.2d 159, 160-61 (Tex. Crim. App.

1992) (per curiam) is far wide of the mark. In that case, the trial court announced

its sentence immediately after adjudicating the defendant’s guilt for violating his

–13– probation. The defendant in Issa was never afforded a punishment hearing after the

adjudication of guilt, and the trial court deprived the defendant of the opportunity to

present any mitigation evidence whatsoever. Id. Here, Avila was afforded a separate

punishment phase and testified before the jury to present mitigation evidence.

B. The Trial Court’s Limits on Questions Relating to Avila’s Financial Support of the Mother and Child Were Not Error Avila’s argument that he was denied the opportunity to present mitigation

evidence is contrary to the record. Avila acknowledges that the trial court permitted

the admission of evidence showing that he paid to bring the child and her mother

from the family’s native country of Honduras, that he provided financial support for

the child and her mother in the United States, and that he personally installed security

cameras at the apartment they all lived in to increase security.

The trial court was entitled to infer that further questioning about the

furnishing of the apartment may develop into an attempt to relitigate the issue of

security cameras and whether their footage would show Avila’s innocence.

Importantly, “at the punishment stage of a criminal trial, evidence is not admissible

for the purpose of relitigating the defendant’s guilt.” McGee v. State, 233 S.W.3d

315, 318 (Tex. Crim. App. 2007). Avila nonetheless did actually testify during the

punishment phase that he was innocent of the crime the jury had already convicted

him of. The trial court’s ruling was not error, and further, Avila was not deprived of

the opportunity to present mitigation evidence.

–14– C. The Trial Court Did not Err in Limiting Questions about Avila’s Immigration Status Avila also complains that the trial court improperly halted testimony about his

citizenship status. Avila’s counsel attempted to explore immigration status when

he asked Avila if he had ever been sent to immigration. The State objected as to

relevance and the trial court instructed the jury that a person’s nationality has no

bearing on the punishment phase. During a break, Avila’s counsel explained he was

attempting to show the jury that Avila had the ability to flee the country but elected

not to. The trial court observed:

I think we can -- it can be done a whole lot more direct without overemphasizing the history of bonds and immigration proceedings. I think is that if [Appellant] was at liberty, had the opportunity to leave - - to flee and did not, that’s perfectly good evidence in my mind. Admissible. All the other stuff, I don’t think is appropriate. Because, obviously, the State would not be permitted to try to punish -- seek harsher punishment for somebody not a US citizen or not lawfully in this country. It is the offense for which the jury has found him guilty that they’re supposed to set punishment, not whether they like the cut of his hair or not. Avila’s counsel responded “I fully understand that” and the court stated

“Well, I’m telling you, my friend, I’m limited you to that. If you can put it in one or

two questions, do it. If you try to go further, I’m gonna be stopping it.” Avila’s

counsel appeared to agree with this direct approach and responded, “It could be done

real easy with two direct questions, but I’ve been admonished.”

The record reflects that Avila later testified in response to direct questions

that, indeed, he had been released from incarceration and was free for almost three

–15– years before the criminal trial and that Avila did not leave the country or attempt to

avoid his criminal trial. Here is the key testimony:

Q Very simply. You were free for most – for almost three years? A Yes. Q And you did not leave the country or attempt to avoid these proceedings? A No.

Immediately after this exchange, Avila’s counsel stated, “Nothing further, Your

Honor.” Avila’s counsel never made a record of any additional questions he wished

to ask or Avila’s anticipated testimony in response.

On appeal, Avila asserts that the trial court’s statement that Avila’s counsel

should proceed with “one or two questions” in order to establish that “he could have

fled to Honduras or some other country and avoided prosecution” somehow limited

his counsel’s ability to present “a fuller picture of his character.” But with no record

of any supplemental questions Avila’s counsel ever actually proffered or even a

reasonably specific summary of the additional evidence he would have adduced at

the sentencing stage, the trial court was never presented with additional questions or

the related evidence to consider and rule upon. TEX. R. EVID. 103(a)(2); TEX. R.

APP. P. 33.1(a); Mays v. State, 285 S.W.3d 884, 890 (Tex. Crim. App. 2009) (holding

no alleged error was preserved for appeal where defendant’s counsel failed “to

proffer, with some degree of specificity, the substantive evidence he intended to

present”).

–16– There can be a substantial risk of unfair prejudice inherent in the admission

of collateral evidence on an accused’s immigration status. See, e.g. TXI Transp. Co.

v. Hughes, 306 S.W.3d 230, 241–42, 244 (Tex. 2010) (holding evidence of

immigration status unrelated to merits of claims was not admissible and, citing cases

from across the country, observing “[e]ven in instances where immigration status

may have limited probative value as to credibility, courts have held that such

evidence is properly excluded for undue prejudice under Rule 403.”) (citations

In the present case, the trial court was aware of this potential for unfair

prejudice against Avila. Immediately after Avila’s counsel introduced the topic of

Avila being “sent to immigration,” the trial court sustained the State’s relevance

objection. The court then instructed the jury that, irrespective of any party’s

citizenship, wealth or poverty, primary language, or length of time in the U.S., the

law expects all parties to be treated equally under the law.

The trial court properly exercised its discretion in limiting testimony relating

to Avila’s immigration status. Cf. Irby v. State, 327 S.W.3d 138, 152 (Tex. Crim.

App. 2010) (rejecting the argument that witnesses who may “be in the country

illegally, or have some other ‘vulnerable status’ are automatically subject to cross-

examination with that status regardless of its lack of relevance to the testimony of

that witness.”).

–17– Avila was permitted to testify to the evidence he wanted the jury to hear—that

he had not used his foreign citizenship to flee the United States to avoid trial.

After reviewing the entire record, this Court determines that any error did not

influence, or had only a slight influence, on the punishment phase outcome. Avila’s

third issue is overruled.

VI. MODIFICATION OF COSTS AWARDED AGAINST AVILA In a cross-issue, the State argues that mandatory court costs should be

correctly reflected in the judgment. See TEX. CODE CRIM. PROC. art. 42.16. The

record reflects that the District Clerk’s bill of costs assessed $451, although the trial

court’s judgment awarded only $386.

We have authority to modify the judgment to make the record speak the truth

when we have the necessary information before us to do so. TEX. R. APP. P. 43.2(b);

Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); French v. State, 830

S.W.2d 607, 609 (Tex. Crim. App. 1992) (adopting the reasoning in Asberry v. State,

813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d) (en banc)). We

decide the State’s cross-issue in its favor and modify the judgment to reflect that a

total of $451 in costs is awarded against Avila.

VII. CONCLUSION We overrule all of Avila’s live issues. We sustain the State’s cross-issue on

costs and modify the judgment to award costs against Avila in the total amount of

$451.00. As modified, we affirm the trial court’s judgment.

–18– The trial court is directed to prepare a corrected judgment that reflects the

modifications made in this Court’s opinion and judgment. See Shumate v. State, 649

S.W.3d 240, 245–46 (Tex. App.—Dallas 2021, no pet.).

/Emily Miskel/ 220727f.u05 EMILY MISKEL Do Not Publish JUSTICE TEX. R. APP. P. 47

–19– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

JUAN FRANCISCO AVILA, On Appeal from the Criminal District Appellant Court No. 1, Dallas County, Texas Trial Court Cause No. F-1958617-H. No. 05-22-00727-CR V. Opinion delivered by Justice Miskel. Justices Goldstein and Garcia THE STATE OF TEXAS, Appellee participating.

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

The total costs awarded against Appellant Juan Francisco Avila are modified to the new total amount of $451.00.

As REFORMED, the judgment is AFFIRMED.

Judgment entered this 6th day of February, 2024.

–20–