Bobby Joe Peyronel v. State ( 2014 )

Opinion issued August 21, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00198-CR
———————————
BOBBY JOE PEYRONEL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court
Harris County, Texas
Trial Court Case No. 1254877
OPINION
Appellant Bobby Joe Peyronel was charged by indictment with aggravated
sexual assault of a person younger than 14 years of age. A jury found Peyronel
guilty and assessed punishment at 50 years in prison and a $10,000 fine. On
appeal, Peyronel raises three issues: (1) the trial court violated his right to a public
trial, (2) the judgment incorrectly reflects that he was convicted for aggravated
sexual assault of a child under six years old, and (3) there was insufficient evidence
to support the costs assessed in the judgment. We modify the judgment to
correctly reflect the charged offense, affirm the judgment of conviction as
modified, reverse the judgment as to punishment, and remand for a new
punishment hearing.
Background
In 2009, Peyronel’s wife was operating an in-home daycare. The
complainant, who was three years old at the time, attended the daycare each day
while her parents worked. The indictment alleged that Peyronel unlawfully,
intentionally, and knowingly caused the sexual organ of the complainant, a person
under 14 years of age, to contact Peyronel’s mouth. A jury found Peyronel guilty.
The punishment phase of the trial began on the day that the jury returned its
guilty verdict. The record reflects that the trial court recessed the jury to await the
arrival of a witness. During the recess, the trial court learned that a woman who
was “part of the defense” had approached one of the jurors and said, “How does it
feel to convict an innocent man?” But the record does not reflect who notified the
judge of the woman’s conduct. The trial court stated on the record that it was
going to find out who made the comment and hold that person in contempt, but the
record does not reflect that the trial court made any investigation or other effort to
2
determine who approached which juror. Instead, the record reflects that the trial
court decided to respond by invoking the Rule. It stated: “Any witnesses that will
testify in this punishment hearing, wait outside except for the one that is going to
be testifying. Do not discuss the case amongst yourselves or with anybody else.”
The State then requested that female members of Peyronel’s family be
excluded from the courtroom, regardless of whether they were going to testify,
because the State did not want any of the jurors to feel intimidated “while having
to make a decision.” Peyronel’s counsel responded: “[W]e’d respond to that by
saying that’s too broad to exclude Mr. Peyronel’s wife and daughter to create the
impression in the jury’s mind that he has absolutely no support whatsoever here.”
The State re-urged its request to exclude female members of Peyronel’s family:
“At this point, that support seems to have crossed the line into what I consider
intimidation of a juror. And based on that, I certainly - - I don’t know who that
family member was . . . I certainly wouldn’t want that person to be in the
courtroom during testimony.”
The trial court said, “I agree. Nobody will stay in the courtroom while we
proceed with this matter. Instruct your prospective witnesses to wait outside until
such time as they can come in.” The court then clarified that he was referring to
“both” witnesses and gallery members. The trial court did not specify whether it
was excluding both males and females, nor did it specify whether it was excluding
3
only members of Peyronel’s family. After four witnesses testified for the State and
counsel presented closing arguments, the jury deliberated and reached a verdict on
sentencing that same day.
Public Trial
In his first issue, Peyronel contends that the trial court violated his statutory
and constitutional right to a public trial because it excluded his friends and family
from the courtroom during the punishment phase of the trial.
A. Standard of Review and Applicable Law
The Sixth Amendment guarantees the accused in all criminal prosecutions
the right to a public trial. U.S. CONST. amend. VI; Herring v. New York, 422 U.S.
853, 856–57, 95, S. Ct. 2550, 2552 (1975); Lilly v. State, 365 S.W.3d 321, 328
(Tex. Crim. App. 2012). The Fourteenth Amendment extends this fundamental
right to defendants in state criminal prosecutions. U.S. CONST. amend. XIV;
Herring, 422 U.S. at 857, 95 S. Ct. at 2553; In re Oliver, 333 U.S. 257, 266–67, 68
S. Ct. 499, 504 (1948). Trial courts must take every reasonable measure to
accommodate public attendance at criminal trials, and a violation of a defendant’s
public-trial right is a structural error that does not require a showing of harm and
warrants automatic reversal. Presley v. Georgia, 558 U.S. 209, 215, 130 S. Ct.
721, 725 (2010); Johnson v. United States, 520 U.S. 461, 468–69, 117 S. Ct. 1544,
4
1549–50 (1997); Lilly, 365 S.W.3d at 328; Steadman v. State, 360 S.W.3d 499, 510
(Tex. Crim. App. 2012).
Nevertheless, “[t]he barring of some members of the public from the
courtroom does not necessarily mean that an accused has been denied a public
trial.” Andrade v. State, 246 S.W.3d 217, 225 (Tex. App.—Houston [14th Dist.]
2007, pet. ref’d) (citing Hernandez v. State, 914 S.W.2d 218, 221 (Tex. App.—El
Paso 1996, pet. ref’d)). This is because “[t]he right to a public trial is not absolute:
It may be outweighed by other competing rights or interests, such as interests in
security, preventing disclosure of nonpublic information, or ensuring that a
defendant receives a fair trial.” Woods v. State, 383 S.W.3d 775, 779 (Tex. App.—
Houston [14th Dist.] 2012, pet. ref’d) (citations omitted); see Hernandez v. State,
914 S.W.2d at 222 (“Reasonable limitations on public attendance may be imposed
where they are necessary to protect a state interest that outweighs the defendant’s
right to public scrutiny.”) (citing Mosby v. State, 703 S.W.2d 714, 716 (Tex.
App.—Corpus Christi 1985, no pet.)). But if an accused is denied the presence of
his friends, the trial court must articulate on the record some compelling reason for
excluding them. Addy v. State, 849 S.W.2d 425, 429 (Tex. App.—Houston [1st
Dist.] 1993, no writ). Whether the accused is denied a public trial is based on the
particular circumstances of the case. Hernandez, 914 S.W.2d at 221 (citing Levine
v. United States, 362 U.S. 610, 616–17, 80 S. Ct. 1038, 1042–43 (1960)).
5
“We apply a bifurcated standard of review to the trial court’s ruling on a
[defendant’s] public-trial claim, reviewing legal conclusions de novo and factual
findings for an abuse of discretion.” See Woods, 383 S.W.3d at 779 (citing
Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002)).
B. Analysis
1. Preservation of Error
The State argues that Peyronel failed to preserve this issue for appeal
because he did not object that excluding his friends and family violated his right to
a public trial but, rather, he only “responded” that it would be too broad to exclude
his wife and daughter.
“Where a defendant, with knowledge of the closure of the courtroom, fails to
object, that defendant waives his right to a public trial.” United States v. Hitt, 473
F.3d 146, 155 (5th Cir. 2006); see also Pena v. State, -- S.W.3d. --, No. 01-13-
00372-CR, 2014 WL 2490749, at *6 (Tex. App.—Houston [1st Dist.] June 3,
2014, no pet.) (appellant waived public trial complaint by “failing to object to the
alleged closing of the trial to the public or otherwise raise the issue with the trial
court”); McEntire v. State, 265 S.W.3d 721, 723 (Tex. App.—Texarkana 2008, no
pet.) (defendant failed to preserve public-trial argument where his counsel stated
that he had no objection to closing part of trial to public).
6
To preserve error for appeal, the complaining party must make “a timely
request, objection, or motion” to the trial court. TEX. R. APP. P. 33.1(a)(1). But,
error preservation “is not an inflexible concept.” Thomas v. State, 408 S.W.3d
877, 884 (Tex. Crim. App. 2013) (quoting Lankston v. State, 827 S.W.2d 907, 909
(Tex. Crim. App. 1992)). “[A]ll a party has to do to avoid the forfeiture of a
complaint on appeal is to let the trial judge know what he wants, why he thinks
himself entitled to it, and to do so clearly enough for the judge to understand him at
a time when the trial court is in a proper position to do something about it.” Id.
Here, Peyronel made clear that he did not agree to the trial court’s exclusion
of his family and argued that exclusion would create a negative impression in the
jury’s eyes. Although Peyronel did not explicitly argue that exclusion of his
family would abrogate his right to a public trial, we conclude that his objection was
sufficient to preserve error. See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim.
App. 2012) (issue preserved if “there have been statements or actions on the record
that clearly indicate what the judge and opposing counsel understood the argument
to be”); Lankston, 827 S.W.2d at 909 (in issue-preservation context, there are “no
technical considerations or form of words to be used”); see also State v. Rosseau,
396 S.W.3d 550, 555 (Tex. Crim. App. 2013) (although defendant’s challenge
“could have been more clearly presented,” “magic language” was not required).
7
2. Did the trial court violate Peyronel’s right to a public trial?
When, as here, the record reflects that the trial court ordered that “nobody
will stay in the courtroom while we proceed with this matter,” we regard the
closure of the courtroom as a total closure. Accordingly, we apply the Waller test
to determine whether the trial court erred in concluding that Peyronel’s right to a
public trial was outweighed by other considerations. See Waller v. Georgia, 467
U.S. 39, 45, 104 S. Ct. 2210, 2215 (1984). Under Waller, a trial court does not err
in closing the courtroom if: (1) the party seeking closure advances an overriding
interest that is likely to be prejudiced; (2) the closure is no broader than necessary
to protect that interest; (3) the trial court considers reasonable alternatives to
closing the proceeding; and (4) the trial court makes findings adequate to support
the closure.1 Id.
Under the first factor, we examine whether the State advanced an overriding
interest in excluding Peyronel’s family and supporters. See id. To satisfy this
prong, there must be a “substantial probability” that the interest will be prejudiced
absent the closure. Press–Enter. Co. v. Superior Court of Cal. for Riverside Cnty.,
478 U.S. 1, 14, 106 S. Ct. 2735, 2743 (1986).
1
We note that a different standard applies when there is only a partial closure of a
courtroom. In that circumstance, the question is whether there was a “substantial
reason” for the partial closure. See Andrade v. State, 246 S.W.3d 217, 225 (Tex.
App.—Houston [14th Dist.] 2007, pet. ref’d).
8
Here, the trial court stated that a woman asked a juror, “How does it feel to
convict an innocent man?” The State told the trial court that this constituted juror
intimidation and that it did not want female family members of Peyronel to remain
in the courtroom during testimony because it would make the jurors feel
intimidated or uncomfortable. The trial court has an interest in protecting jurors
from unauthorized communication that may influence their decision-making. See
TEX. CODE CRIM. PROC. ANN. art. 36.22 (“No person shall be permitted to converse
with a juror about the case on trial except in the presence and by the permission of
the court.”); Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009) (“The
primary goal of Article 36.22 is to insulate jurors from outside influence.”).
Moreover, protecting jurors from intimidation is a sufficient reason for courtroom
exclusion. See Steadman, 360 S.W.3d at 507, 511 (reversing because trial court’s
findings too generic, but noting that “any reticence that prospective jurors might
experience on account of their discomfort to ‘fully express their feelings, attitudes
and possible prejudices’ constitutes a legitimate jury-panel contamination
concern”); Hernandez, 914 S.W.2d at 222 (“Protecting the jury from intimidation
that would traumatize them or render them unable to perform their duties as jurors
is an overriding state interest . . . .”); see also United States ex. rel. Orlando v. Fay,
350 F.2d 967, 971 (2d Cir. 1965) (holding the guarantee of a public trial means
“only that the public must be freely admitted so long as those persons and groups
9
who make up the public remain silent and behave in an orderly fashion so that the
trial may continue”). We thus conclude that the first prong of the test was satisfied
because the State demonstrated a substantial probability that an overriding interest
would be prejudiced absent the closure.
Under the second factor, we examine whether the closure was broader than
necessary. Waller, 467 U.S. at 45, 104 S. Ct. at 2215. “Presley mandates that any
closure of the courtroom ‘be no broader than necessary to protect’ whatever
overriding interest exists to close the proceedings.” Steadman, 360 S.W.3d at 509–
10 (quoting Presley, 558 U.S. at 214, 130 S. Ct. at 724). Here, the record does not
reflect that the trial court determined which person had the unauthorized
communication with a juror. The record reflects only that the trial court was
notified that it was a female member of Peyronel’s family. Peyronel argues that
the trial court could have ordered a more limited closure if it had conducted some
investigation. We agree. The record reflects that only one woman made an
improper comment to a juror. But the record reflects no attempt by the trial court
to try to identify that woman and exclude only her; rather, the trial court ordered a
total closure, stating “nobody” would be permitted to stay in the courtroom during
the proceedings. We thus conclude that the closure was broader than necessary.
See Presley, 558 U.S. at 214, 130 S. Ct. at 724 (closure of courtroom may not be
broader than necessary to protect whatever overriding interests exists to close
10
proceedings); Steadman, 360 S.W.3d at 510 (appellant’s right to public trial
violated because closure was broader than necessary where trial court removed
family members from observing voir dire before it was necessary to do so).
Under the third factor, we consider whether the trial court considered
reasonable alternatives to a total closure. Waller, 467 U.S. at 45, 104 S. Ct. at
2215; Presley, 558 U.S. at 215, 130 S. Ct. at 725 (“Trial courts are obligated to
take every reasonable measure to accommodate public attendance at criminal
trials.”). “[C]ircumstances justifying closure ‘will be rare . . . and the balance of
interests must be struck with special care.’” Steadman, 360 S.W.3d at 505
(quoting Presley, 558 U.S. at 213, 130 S. Ct. at 724). A closure is not justified
when there are reasonable alternatives to closure that the trial court cannot
“sensibly reject.” See id. at 509; see also Presley, 558 U.S. at 214, 130 S. Ct. at
724–25; Lilly, 365 S.W.3d at 329.
In Presley, the Supreme Court reversed because the trial court closed the
courtroom without considering reasonable alternatives. Presley, 558 U.S. at 215–
16, 130 S. Ct. at 725 (noting specific alternatives to total closure during voir dire).
The Court of Criminal Appeals has applied Presley in a case involving closure
during voir dire and reversed because the trial court did not consider “all”
reasonable alternatives. See Steadman, 360 S.W.3d at 509 (“That a trial court can
reasonably discount some alternatives, however, does not insulate it from Presley’s
11
mandate that it be able to sensibly reject ‘all reasonable alternatives’ before it can
exclude the public from voir dire proceedings.”) (quoting Presley, 558 U.S at 216,
130 S. Ct. at 725) (emphasis in original).
Here, the record does not reflect that the trial court considered all reasonable
alternatives. Although the trial court initially stated that it would find out who
made the comment and hold her in contempt, it apparently abandoned that
approach in favor of invoking the Rule and then ordering that “nobody” could
remain in the courtroom. The record does not reflect the reason that the trial court
abandoned its stated initial approach—to determine who made the improper
comment—in favor of a total closure. Thus, rather than taking “special care” to
strike a balance between competing interests, see Waller, 467 U.S. at 45, 104 S. Ct.
at 2215, the record reflects that the trial court, without explanation, concluded that
“nobody” would remain in the courtroom. See Presley, 558 U.S. at 215–16, 130 S.
Ct. at 725. We conclude, based on the sparse record before us, that the trial court
failed to consider all reasonable alternatives to total closure and “sensibly reject”
each of them. See id. (trial court must consider all reasonable alternatives); Lilly,
365 S.W.3d at 329 (same); Steadman, 360 S.W.3d at 509–10 (right to public trial
violated where trial court failed to consider several alternatives and sensibly reject
each).
12
Under the fourth factor, we consider whether the trial court made adequate
findings to support the closure. Waller, 467 U.S. at 45, 104 S. Ct. at 2215. A trial
court’s findings regarding closure must be “specific enough that a reviewing court
can determine whether the closure . . . was proper[] . . . .” Presley, 558 U.S. at
215, 130 S. Ct. at 725.
Peyronel contends that the trial court ordered the closure “without any clear
articulation of its rationale.” The record reflects that the trial court did not
determine who made the comment, make findings to justify closure, or explain
why lesser measures would not adequately protect the interest in preventing juror
intimidation. Thus we conclude that the trial court failed to articulate “findings
specific enough that a reviewing court can determine” that the courtroom closure
was warranted. See id.; Waller, 467 U.S. at 48, 104 S. Ct. at 2216 (right to public
trial violated because, in part, “the trial court’s findings were broad and general,
and did not purport to justify closure of the entire [suppression] hearing”);
Steadman, 360 S.W.3d at 506–08, 510 (clarifying that concrete facts might include
“evidence of any outburst on the part of the appellant’s family members,” but
reversing where trial court failed to articulate a “tangible threat” based on concrete
facts, citing only a broad and generic concern about possible jury panel
contamination and security).
13
Considering the four Waller factors, we conclude that the trial court
improperly ordered a total closure of the courtroom because it failed to first
consider and sensibly reject reasonable alternatives, such as excluding only the
person who made the unauthorized comment to a juror, and make adequate
findings supporting the closure. See Presley, 558 U.S. at 215–16, 130 S. Ct. at 725
(appellant’s right to public trial violated because trial court failed to consider all
reasonable alternatives to closure, even assuming trial court had overriding interest
in closure); Steadman, 360 S.W.3d at 509–10 (appellant’s right to public trial
violated where trial court failed to make adequate findings or consider all
reasonable alternatives to closure); Turner v. State, 413 S.W.3d 442, 449–50 (Tex.
App.—Fort Worth 2012, no pet.) (appellant’s right to public trial was violated
where only interest articulated to support closure was space concerns, trial court
“did not consider reasonable alternative that might have accommodated appellant’s
family members, and did not make adequate findings to support its decision to
exclude appellant’s family members” from voir dire); cf. Johnson v. State, 137
S.W.3d 777, 779 (Tex. App.—Waco 2004, pet. ref’d) (holding appellant’s right to
public trial not violated because trial court held hearing outside presence of jury in
which appellant’s aunt testified under oath that she was the person who
commented within earshot of the jury that appellant passed two polygraph tests,
and record reflected that trial court excluded only appellant’s aunt).
14
We sustain Peyronel’s first issue.
Modification of Judgment
In his second issue, Peyronel contends that the trial court’s written judgment
of conviction erroneously states that he was convicted of aggravated sexual assault
of a child under six years of age. The State concedes that the judgment is incorrect
in this regard.
“An appellate court has the power to correct and reform a trial court
judgment ‘to make the record speak the truth when it has the necessary data and
information to do so.’” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston
[1st Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex.
App.—Dallas 1991, 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”). Here, the
indictment 2 and the guilt-innocence jury charge reflect that Peyronel was charged
with and convicted of aggravated sexual assault of a person under 14. But, the
judgment states that Peyronel was convicted of the first degree felony of “agg sex
asslt child <6.” We sustain Peyronel’s second issue and modify the trial court’s
judgment to reflect that appellant was convicted of aggravated sexual assault of a
person under 14. See Jackson v. State, 288 S.W.3d 60, 64 (Tex. App.—Houston
2
The State initially indicted Peyronel for aggravated sexual assault of a child
younger than six, but dismissed that case and re-indicted Peyronel for aggravated
sexual assault of a person under 14.
15
[1st Dist.] 2009, pet. ref’d) (reforming trial court’s erroneous judgment stating
appellant was convicted of aggravated assault against public servant to reflect
appellant was convicted of aggravated assault where record showed jury found
appellant guilty of only latter offense).
Court Costs
In his third issue, Peyronel challenges the trial court’s assessment of court
costs in the amount of $704. He argues that the J.I.M.S. cost bill assessment is not
a proper bill of costs, and that the assessment violates due process because it was
never presented to him or to the trial court. The Court of Criminal Appeals has
rejected these arguments. See Johnson v. State, 423 S.W.3d 385, 391–94 (Tex.
Crim. App. 2014).
Peyronel further argues that the evidence is insufficient to support the
assessment of court costs in the amount of $704. “[W]e review the assessment of
court costs on appeal to determine if there is a basis for the cost, not to determine if
there was sufficient evidence offered at trial to prove each cost, and traditional
Jackson evidentiary-sufficiency principles do not apply.” Id. at 390. We review
the sufficiency of the evidence supporting the award of costs in the light most
favorable to the trial court’s judgment. See Mayer v. State, 309 S.W.3d 552, 557
(Tex. Crim. App. 2010); Cardenas v. State, 403 S.W.3d 377, 385, aff’d, 423
S.W.3d 396 (Tex. Crim. App. 2014).
16
A defendant convicted of a felony offense must pay certain statutorily
mandated costs and fees. See Johnson, 423 S.W.3d at 389. The record shows that
Peyronel was convicted of a felony in district court, supporting each of the
following court costs:
(1) $250.00 DNA record fee; 3
(2) $133.00 consolidated court cost for conviction of a felony; 4
(3) $125.00 for summoning 25 witnesses 5
(4) $50.00 for executing or processing an issued arrest warrant,
capias, or capias pro fine; 6
(5) $40.00 to the clerk’s office; 7
3
TEX. CODE CRIM. PROC. ANN. art. 102.020(a)(1) (West Supp. 2013) (“A person
shall pay as cost of court: (1) $250 on conviction of an offense listed in Section
411.1471(a)(1), Government Code.”). Section 411.1471(a)(1) applies to a
defendant who is indicted or punishable under Penal Code section 22.021. TEX.
CODE CRIM. PROC. ANN. art. 411.1471(a)(1)(c) (West 2012). Section 22.021
covers aggravated sexual assault of a person under 14 years of age, the offense for
which Peyronel was found guilty. See TEX. PENAL CODE ANN. § 22.021(a)(2)(B)
(West Supp. 2013).
4
TEX. LOC. GOV’T CODE ANN. § 133.102(a)(1) (West Supp. 2013) (“A person
convicted of an offense shall pay as a court cost, in addition to all other costs:
$133 on conviction of a felony.”).
5
TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(2)(B)(3) (West Supp. 2013) (“A
defendant convicted of a felony or a misdemeanor shall pay $5 for summoning a
witness.”)
6
Id. art. 102.011(a)(2) (“A defendant convicted of a felony or a misdemeanor shall
pay the following fees for services performed in the case by a peace officer . . .
$50 for executing or processing an issued arrest warrant, capias, or capias pro fine
. . . .”).
17
(6) $25.00 district court records preservation fee; 8
(7) $20.00 jury conviction fee; 9
(8) $10.00 “taking one bond” fee; 10
(9) $10.00 in commitment fees; 11
(10) $10.00 release fees; 12
(11) $6.00 for support for the judiciary; 13
(12) $5.00 for making an arrest without a warrant; 14
7
Id. art. 102.005(a) (West 2006) (“A defendant convicted of an offense in a county
court, a county court at law, or a district court shall pay for the services of the
clerk of the court a fee of $40.”).
8
Id. art. 102.005(f) (“A defendant convicted of an offense in a . . . district court
shall pay a fee of $25 for records management and preservation services
performed by the county as required by Chapter 203, Local Government Code.”).
9
Id. art. 102.004(a) (West 2006) (“A defendant convicted by a jury . . . in district
court shall pay a jury fee of $20.”).
10
Id. art. 102.011(a)(2)(B)(5) (“A defendant convicted of a felony or misdemeanor
shall pay . . . $10 for taking and approving a bond and, if necessary, returning the
bond to the courthouse . . . .”).
11
Id. art. 102.011(a)(2)(B)(6) (“A defendant convicted of a felony or a misdemeanor
shall pay the following fees for services performed in the case by a peace officer
. . . $5 for commitment or release”).
12
Id.
13
TEX. LOC. GOV’T CODE ANN. § 133.105(a) (West 2008) (“A person convicted of any
offense, other than an offense relating to a pedestrian or the parking of a motor
vehicle, shall pay as a court cost, in addition to all other costs, a fee of $6 to be
used for court-related purposes for the support of the judiciary.”).
18
(13) $5.00 jury summoning fee; 15
(14) $5.00 security fee; 16
(15) $4.00 jury reimbursement fee; 17
(16) $4.00 for the court technology fund; 18 and
(17) $2.00 for support of indigent defense. 19
These fees total $704, which is the same amount of costs assessed in the judgment:
14
TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(1) (“A defendant convicted of a
felony or a misdemeanor shall pay the following fees for services performed in the
case by a peace officer: $5 for . . . making an arrest without a warrant”).
15
Id. art. 102.011(a)(2)(B)(7) (“A defendant convicted of a felony or a misdemeanor
shall pay . . . $5 for summoning a jury, if a jury is summoned.”).
16
Id. art. 102.017(a) (West Supp. 2013) (“A defendant convicted of a felony offense
in a district court shall pay a $5 security fee as a cost of court.”).
17
Id. art. 102.0045(a) (West Supp. 2013) (“A person convicted of any offense, other
than an offense relating to a pedestrian or the parking of a motor vehicle, shall pay
as a court cost, in addition to all other costs, a fee of $4 to be used to reimburse
counties for the cost of juror services as provided by Section 61.0015, Government
Code.”).
18
Id. art. 102.0169(a) (West Supp. 2013) (“A defendant convicted of a criminal
offense in a . . . district court shall pay a $4 county and district court technology
fee as a cost of court.”).
19
TEX. LOC. GOV’T. CODE ANN. § 133.107(a) (West Supp. 2013) (“A person
convicted of any offense, other than an offense relating to a pedestrian or the
parking of a motor vehicle, shall pay as a court cost, in addition to other costs, a fee
of $2 to be used to fund indigent defense representation through the fair defense
account established under Section 79.031, Government Code.”).
19
$ 250.00 (DNA record fee)
$ 133.00 (consolidated court cost for conviction of a felony)
$ 125.00 (summoning witnesses fee)
$ 50.00 (serving capias fee)
$ 40.00 (clerk’s office fee)
$ 20.00 (jury conviction fee)
$ 25.00 (district court records preservation fee)
$ 10.00 (release fees)
$ 10.00 (commitment fees)
$ 10.00 (bond fee)
$ 6.00 (support judiciary fee)
$ 5.00 (jury summoning fee)
$ 5.00 (arrest without warrant fee)
$ 5.00 (security fee)
$ 4.00 (jury reimbursement fee)
$ 4.00 (court technology fee)
$ 2.00 (support of indigent defense fee)
$ 704.00
Accordingly, we hold that the evidence was sufficient to support the court costs in
the amount of $704 assessed in the trial court’s judgment. See Johnson, 423
S.W.3d at 389, 396.
We overrule Peyronel’s third issue.
20
Conclusion
We modify the judgment to reflect that Peyronel was convicted of
aggravated sexual assault of a person under 14, affirm the judgment of conviction
as modified, reverse the judgment as to punishment, and remand to the trial court
for a new punishment hearing.
Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Massengale and Huddle.
Publish. TEX. R. APP. P. 47.2(b).
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