COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-17-00300-CR

NO. 02-17-00301-CR

NO. 02-17-00302-CR

BRYAN KEITH HERNANDEZ APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY

TRIAL COURT NO. CR16-0891, CR16-0892, CR17-0216

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MEMORANDUM OPINION1

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In cause numbers 02-17-00300-CR (the “Bumpas Offense”) and 02-17-

00301-CR (the “Lashbrook Offense”), a jury convicted appellant Bryan Keith 

Hernandez of assault on a public servant—third-degree felonies—and after 

finding the enhancement allegations true, assessed his punishment at 20 years’ 

 1See Tex. R. App. P. 47.4.
2

confinement in prison and a $5,000 fine in each case. See Tex. Penal Code Ann.

§§ 12.42, 22.01(b)(1) (West Supp. 2017). In a third cause number, 02-17-00302-

CR (the “Possession Offense”), the jury convicted Hernandez of possession of a 

controlled substance, methamphetamine, of less than one gram—a state-jail 

felony—and assessed his punishment at 24 months’ confinement in the state-jail 

division of the Texas Department of Criminal Justice and a fine of $10,000. See 

Tex. Health & Safety Code Ann. § 481.115(b) (West 2017). The trial court 

sentenced Hernandez in accordance with the jury verdicts and ordered the

sentences to run concurrently. 

Hernandez appealed and asserts three points. First, he contends that the 

trial court committed reversible constitutional and statutory error when it 

conducted voir dire in his absence. Next, he argues that the evidence is 

insufficient to support the assessed court costs. And third, he asserts that the trial 

court unlawfully assessed court costs in two of his three cases. 

We overrule his first two points, sustain his third point, and modify the 

judgments in the Lashbrook and Possession Offenses to delete costs. We thus 

affirm the judgment in the Bumpas Offense, and we affirm the judgments in the 

Lashbrook and Possession Offenses as modified.

Background

Hernandez does not attack the evidentiary sufficiency, but to provide 

context, we briefly summarize the offenses. After Officer Jordan Lashbrook 

stopped Hernandez’s vehicle, he questioned Hernandez to determine if he was
3

driving while intoxicated. At one point during the investigation, Hernandez 

admitted having a marijuana pipe in his vehicle, so Officer Lashbrook retrieved 

the pipe and searched the vehicle. During the search Officer Lashbrook 

discovered two small baggies containing what the officer thought was 

methamphetamine or methamphetamine residue; he also found what appeared 

to him to be a methamphetamine pipe. When Officer Lashbrook and his backup, 

Officer Chris Bumpas, attempted to arrest Hernandez, a struggle ensued during 

which Hernandez bit Officer Lashbrook. The officers eventually succeeded in 

placing Hernandez under arrest. 

Hernandez was present for the entirety of voir dire.

In Hernandez’s first point, he argues that the trial court committed 

reversible constitutional and statutory error when it conducted voir dire in his 

absence. An accused’s right to be present in the courtroom at every stage of his 

trial is among the most basic rights guaranteed by the Confrontation Clause of 

the Sixth Amendment to the United States Constitution. Illinois v. Allen, 397 U.S. 

337, 338, 90 S. Ct. 1057, 1058 (1970). Under article 33.03 of the code of criminal 

procedure, the defendant must be present during all voir dire proceedings. Tex. 

Code Crim. Proc. Ann. art. 33.03 (West 2006); see Adanandus v. State, 

866 S.W.2d 210, 217 (Tex. Crim. App. 1993), cert. denied, 510 U.S. 1215 (1994).

I. Background

In the Lashbrook Offense, the State alleged that Hernandez assaulted

Officer Lashbrook by biting him. During voir dire, defense counsel attempted (and 
4

apparently succeeded to some extent over a sustained objection) to show a 

picture of a bite mark that counsel had pulled off the Internet.2

The record shows that at the close of voir dire, the trial court released 

those members of the venire who had not been selected as jurors, read its 

instructions to the selected jurors, swore in the jury, and excused it for the day. 

After a “recess” of unknown length, one of the jurors came forward (1) to 

say that she might be prejudiced against Hernandez based on the bite-mark 

photograph that defense counsel had tried to show during voir dire and (2) to 

disclose that she herself had consulted with defense counsel on a different 

matter the previous year. When defense counsel assured the juror that the 

photograph had nothing to do with Hernandez’s case but was simply something 

that counsel had pulled off the Internet, the juror indicated that she could be 

objective. After the trial court, the State, and defense counsel all questioned her 

about her earlier consultation with defense counsel, no one voiced any objection 

to her remaining on the jury.3

 2Because Hernandez did not leave a recognizable bite mark on Officer 

Lashbrook, whether Hernandez bit the officer was a hotly contested issue. 

Knowing that the State could not produce comparable evidence, defense counsel 

attempted to show the jury a picture of an easily recognizable bite mark for at 

least implied contrast.

3When asked if she could remain objective, the juror responded, “Okay.” 

Although not a model of clarity, on this record we can only conclude that it 

satisfied defense counsel, as he did not object to her remaining on the jury. 
5

The trial judge specifically noted who was present. The prosecutor,

defense counsel, and the one juror were there; Hernandez was not. 

II. Discussion

The record shows that voir dire had been completed at the time the juror 

came forward. The trial court had already sworn and excused the jury for the day. 

In the reporter’s record, the court reporter refers to the juror as 

“venireperson” when designating who is speaking. That, however, was a 

misnomer: by this point, she was a juror.

And although the juror’s hearing is in the portion of the reporter’s record 

titled “Guilty Plea and Voir Dire,” that is a function of the hearing’s occurring 

shortly after voir dire, not during it.

Hernandez argues entirely within the context of his allegedly being absent 

from voir dire, something Texas law does not allow.4 See Tex. Code Crim. Proc. 

Ann. art. 33.03. But the problem was no longer Hernandez’s absence during jury 

selection, because the jury had already been selected. The court of criminal 

appeals has written, “Under Article 33.03, . . . an accused’s right to be present at 

his trial is unwaivable until such time as the jury ‘has been selected.’” Miller, 692 

 4A defendant’s right to be present at all stages of trial is waivable where, 

for example, the defendant voluntarily absents himself by not returning to court 

after trial proceedings have begun. See, e.g., Taylor v. United States, 414, U.S. 

17, 20, 94 S. Ct. 194, 196 (1973); Miller v. State, 692 S.W.2d 88, 91 (Tex. Crim. 

App. 1985). This case does not involve such a situation, though; Hernandez was 

in the courtroom from voir dire’s start to finish.
6

S.W.2d at 91; see Roden v. State, 338 S.W.3d 626, 631 (Tex. App.—Fort Worth 

2011, pet. ref’d).

Thus the after-the-fact problem facing the trial court was what, if anything, 

to do about a juror who might be prejudiced against Hernandez based on a 

photograph she had seen during voir dire and who might be biased in favor of—

or possibly prejudiced against—Hernandez because she was familiar with

Hernandez’s counsel. Put differently, the real question was no longer whether 

she should be placed on the jury; it was whether she should be removed. After 

questioning the juror, neither side found her objectionable, and on appeal, 

Hernandez does not argue otherwise. He argues simply that it was error to 

conduct her hearing without his being present. 

We will assume but not decide that the trial court erred by conducting the 

juror hearing without Hernandez there. None of the typical scenarios for 

proceeding without the defendant appear to apply. See Taylor, 414 U.S. at 20, 94 

S. Ct. at 196 (holding right waived by defendant’s voluntarily not returning to 

court); Allen, 397 U.S. at 343, 90 S. Ct. at 1060–61 (holding that defendant may 

be removed if, after being warned, he continues to act in a disorderly, disruptive, 

and disrespectful manner); Weber v. State, 829 S.W.2d 394, 396 (Tex. App.—

Beaumont 1992, no pet.) (stating that defendant personally must make waiver).

We do so because assuming there was error, any error was harmless. See Tex. 

R. App. P. 44.2(a). Beyond a reasonable doubt, the error, if any, did not 

contribute to Hernandez’s conviction or punishment. See id. Nothing in this 
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record shows that proceeding with the juror harmed Hernandez in any way. See 

Weber, 829 S.W.2d at 396–97 (holding defendant’s absence during a portion of 

voir dire was harmless beyond a reasonable doubt).

We overrule Hernandez’s first point.

The supplemental records support court costs.

In Hernandez’s second point, he argues that the evidence is insufficient to 

support the assessed court costs. 

Appellate courts review the assessment of court costs to determine if there 

is a basis for them—not to determine if there was sufficient evidence offered at 

trial to prove each cost. Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 

2014). The traditional evidentiary-sufficiency principles do not apply. Id.

Bills of costs are relevant if omitted from the record, and an appellate court 

may order a court clerk to supplement the clerk’s record with a bill of costs. Id. at 

392. When a defendant does not challenge specific items in a bill of costs, the bill 

is sufficient. Id. at 396.

The trial-court clerk has filed supplemental clerk’s records with the bills of 

costs in all three cases. There are now bases to support the awards. See id. at 

392, 396.

We overrule Hernandez’s second point. See id.
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Because the three cases were tried together, the trial court erred in 

assessing costs in all three.

In Hernandez’s third point, he asserts that the trial court unlawfully 

assessed triplicate court costs. He contends that where a defendant is convicted 

of more than one offense in a single criminal action, the court may assess each 

court cost or fee only once against the defendant. See Tex. Code Crim. Proc. 

Ann. art. 102.073(a) (West 2018). Only the court costs and fees for the most 

serious conviction are to be assessed. See id. art. 102.073(b).

Relying on the same statutory provision as Hernandez does, the State 

concedes that the trial court should not have assessed costs in all three cases. 

We agree and sustain Hernandez’s third point. See id. art. 102.073(a).

Where the State and Hernandez part ways, however, is which of the three 

awards should remain intact.

Both sides agree that Hernandez was convicted of one state-jail felony and 

two third-degree felonies. Both agree that the court costs in the Possession 

Offense—the state-jail felony—should be deleted because it is a lower category 

offense than the other two. We agree as well. See id. art. 102.073(b).

Although the two third-degree offenses are identical, the trial court 

assessed different costs and fees. Not surprisingly, Hernandez argues in favor of 

the lower figure; the State wants the higher amount.
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The judgment in the Lashbrook Offense reflects costs of $334. But a 

judgment nunc pro tunc raised the amount to $472. The Lashbrook Offense’s bill 

of costs reflects costs and fees of $472.

In contrast, the judgment and bill of costs for the Bumpas Offense shows 

costs and fees of $344.

Hernandez asks that the $344 award in the Bumpas Offense be deleted 

and that the $334 award in the Lashbrook Offense be affirmed on “principles of 

equity, lenity[,] and fairness”; however, he does so without noting that the trial 

court later raised the Lashbrook amount to $472 in a judgment nunc pro tunc. Of 

the two third-degree felonies, the Lashbrook Offense now assesses the greater 

amount. 

By comparison, the State asks that the award in the Lashbrook Offense be 

deleted and that the Bumpas Offense’s $344 award be affirmed. The State 

contends that the bill of costs in the Lashbrook Offense contains numerous errors

both of commission and omission, whereas the Bumpas Offense’s bill of costs 

contains the correct costs and fees.

5

 5The bill of costs in the Lashbrook Offense inexplicably doubles the 

consolidated-court-costs fee from $133 to $266 and the courthouse-security-fund

fee from $5 to $10. The doubling of these two costs is what elevated the 

assessment from $334 to $472. Additionally, the jury-summons fee and the 

service-of-subpoena fee, both for $5, are reflected in the Bumpas Offense but not 

in the bill of costs for the Lashbrook Offense, which explains why the Lashbrook 

Offense was originally $10 less than the identical Bumpas Offense.
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Hernandez does not couch his argument in terms of objections to specific 

costs or fees. See Tex. Code Crim. Proc. Ann. art. 103.008 (West 2018)

(providing method for correcting costs). He requests the less expensive of the 

two assessments on “principles of equity, lenity[,] and fairness.” But see Cain v. 

State, 525 S.W.3d 728, 734 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) 

(rejecting rule of lenity); Robinson v. State, 514 S.W.3d 816, 827 (Tex. App.—

Houston [1st Dist.] 2017, pet. ref’d) (same). Hernandez voices no objection to the 

Lashbrook judgment nunc pro tunc, so the less expensive is now the $344 award 

in the Bumpas Offense—the judgment that the State advocates for. 

Because our choices are between the Lashbrook Offense’s $472 revised 

award and the $344 award in the Bumpas Offense, and because Hernandez 

requests the less expensive of the two, which is now the same one advocated for 

by the State, we leave the award assessed in the Bumpas Offense intact and 

delete the Lashbrook award of costs. See Robinson, 514 S.W.3d at 827–28 

(siding with State’s analysis); see also Williams v. State, 495 S.W.3d 583, 589–

90 (Tex. App.—Houston [1st Dist.] 2016) (op. on reh’g) (same), pet. dism’d, 2017 

WL 1493488 (Tex. Crim. App. Apr. 26, 2017).

Conclusion

We overrule Hernandez’s first two points.

We sustain his third point and delete the award of costs in the judgments in 

the Lashbrook and Possession Offenses.
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We affirm the judgment in the Bumpas Offense (cause number 02-17-

00300-CR), and we affirm the judgments in the Lashbrook Offense (cause 

number 02-17-00301-CR) and the Possession Offense (cause number 02-17-

00302-CR) as modified.

/s/ Elizabeth Kerr

ELIZABETH KERR

JUSTICE

PANEL: SUDDERTH, C.J.; KERR and BIRDWELL, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: May 24, 2018