## NO. 12

- 19

- 00347

- CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

CHARITY IRVIN , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL FROM THE 114TH

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OP INION Charity Irvin appeals her convic tion for possession of less than one gram of methamphetamine. In three issues, Appellant argues that the evidence is insufficient to support

t he trial court ’ s judgment, the trial court erred by empaneling a jury in which one juror purportedly could not un derstand the English language, and the trial court improperly assessed a

“ time p ayment ” fee in its judgment. We modify and affirm as modified.

B ACKGROUND Appellant was charged by indictment with possession of less than one gram of methamphetamine and pl eaded “ not guilty. ” The matter proceeded to a jury trial. At the trial ’ s concl usion, the jury found Appellant “ guilty ” as charged. Following a trial on punishment, the jury assessed Appellant ’ s punishment at imprisonment for twenty

- four months . The tri al court sentenced Appellant accordingly, and this appeal followed.

E VIDENTIARY S UFFICIENCY
In her first issue, Appellant argues that the evi dence is legally insufficient to support the
trial court ’ s judgment.2 Standard of Review
The Jackson v. Virgini a 1 legal sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to su pport each element of a criminal offense that the state is required to prove beyond a reasonable doubt. See Brook s v . State , 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a
criminal conviction. See Jackson , 443 U.S. at 315

– 16, 99 S. Ct. at 2786

– 87 ; s ee also Escobedo
v. State , 6 S.W.3d 1, 6 (Tex. App.

– San Antonio 1999, pet. ref ’ d). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable do ubt. See Jackson , 443 U. S. at 320, 99 S. Ct. at 2789; see also Johnson v. State , 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the verdict. See Jackson , 443 U.S. at 320, 99 S. Ct. at 2789; Johnson , 8 71 S.W.2d at 186. A jury is free to believe all or any part of a witness ’ s testimony or disbelieve all or any part of that testimony. See Lee v. State , 176 S.W.3d 452, 458 (Tex. App.

– Houston [1st Dist.] 2004), aff ’ d , 206 S.W.3d 620 (Tex. Crim. App. 20 06) . A successful legal suf ficiency challenge will result in rendition of an acquittal by the reviewing

court. See Tibbs v. Florida , 457 U.S. 31, 41

– 42, 102 S. Ct. 2211, 2217

– 18, 72 L. Ed. 2d 652 (1982). Circumstantial evidence is as probative as direct ev idence in establishing gu ilt, and circumstantial evidence alone can be sufficient to establish guilt. Rodriguez v. State , 521 S.W.3d 822, 827 (Tex. App.

– Houston [1st Dist.] 2017, no pet.) (citing Sorrells v. State , 343 S.W.3d 152, 155 (Tex. Crim. App. 201 1)). Each fact need not point directly and independently to the guilt of the appellant, provided that the cumulative force of all the incriminating circumstances is sufficient to support the conviction. See Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim . A pp. 2007). Juries are pe rmitted to draw multiple reasonable inferences so long as each inference is supported by the evidence presented at trial. Id. at 15. Juries are not permitted to reach conclusions based on mere speculation or factually unsuppor ted inferences or presumptio ns. Id. An inference is a conclusion reached by considering other facts and deducing a logical consequence from them, while speculation is mere theorizing or guessing about the possible meaning of facts and evidence presented. Id. at 16.

1 443 U.S. 307, 315

– 16 , 9 9 S. Ct. 2781, 2786

– 87, 61 L. Ed. 2d 5 60 (1979)

.3 The sufficienc y of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would include one that “ accurately sets out th e law, is authorized by the indictment, does not unnecessarily increase the State ’ s burden of proof or unnecessarily restrict
the State ’ s theories of liability, and adequately describes the particular offense for which the
defendant is tried. ” Id.
Discuss io n
T o support Appellant ’ s conviction for possession of methamphetamine , the State was required to prove that she (1) exercised control, management, or care over the substance and (2) knew the matter possessed was contraband. See Poindexter v. State , 153 S.W.3d 402, 405 (Tex. Crim. App. 2005) ; see also T EX

. H EALTH & S AFETY C ODE A NN

. §§ 481.102(6) (West Supp. 2019) , 48 1.115(a), (b) (West 2017 ). A person acts knowingly, or with knowledge, with respect to the nature of h er conduct or to circumstances surrou nding h er conduct when s he i s aware of the nature of h er conduct or that such circumstances exist. See T EX

. P ENAL C ODE A NN

. § 6.03(b) ( West 2011 ). The State must establish, to the requisite level of confidence, that the
accused ’ s connection with the drug was more than just fortuito us. Poindexter , 153 S.W.3d at
406. When the accused is not in exclusive possession of the place where the substance is found,
we cannot conclude that s he had knowledge of and control over the contraband unless there are
additi onal inde pendent facts and c ircumstances which link the accused t o the contraband. Id. Links that may circumstantially establish the sufficiency of the evidence to prove that a defendant had knowing “ possession ” of contraband include the following: (1) the defen dant ’ s presence whe n a search is conducted; (2) whether the contraband was in plain view; (3) the
defendant ’ s proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whe ther the defendant possessed other
contraband or narcotics when a rrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an o dor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whe ther the defendant was found with a large amount of cash ; and (14) whether the conduct of the defendant indicated a consciousness of guilt. See Evans v. State , 202 S.W.3d4 158, 162 n.12 (Tex. Crim. App. 2006) . It is not the number of links that i s disposi tive, but rather
th e logical force of all of the evidenc e, both direct and circumstantial. Id. Ultimately, the question of whether the evidence is sufficient to link the appellant to the contraband must be answered on a case by case basis. See Whitworth v. State , 808 S.W. 2d 566, 569 (Tex. App.

– Austin 1991, p et. r ef ’ d). In the instant case, Smith County Sheriff ’ s Deputy Kevin Londoff testified that on May 20, 2018, he initiated a traffic stop on a vehicle driving in the southwest portion of Smit h County, Texas based on the driver’s failure to display a registration sticker or a front license plate. Londoff made contact with the driver and Appellant, the passenger. During this time, Londoff asked the driver for consent to search the vehicle, whi ch she gave hi m. Londoff st ated
that while he se arched the passenger side interior of the vehicle, he discovered several handbags. According to Londoff, Appellant told him prior to his search of the vehicle that these handbags belonged to her. Londoff t estified that in one of thes e handbags, he discovered a cu t, red straw
in which there was a “ real fine . . . powder

- like substance.” Londoff further testified that he told Appellant that the substance he observed in the red straw appeared to be cocaine, t o which Appellant res p o nded , “It ’ s not cocaine, it ’ s meth[ .]” Londoff ’ s body camera video depicting his interaction between Appellant and the vehicle ’ s driver and his search of the vehicle was admitted
into evidence. Tyler Crime Lab Forensic Scientist Ka ren Collins testified t hat t he substance
Londoff discovere d in the red straw was methamphetamine , which weighed 0.01 grams

. We next consider whether the evidence links Appellant to the contraband. See
Poindexter , 153 S.W.3d at 406

. W e begin by noting that Appellant was not under th e influence
of narcotics , nor did sh e possess other contraband or narcotics when arrested . She did not attempt to flee and made no furtive gestures

. T here was no evidence that Londoff detected the
odor of contraband , nor wa s other contraband or drug p arap hernalia located during his search of
the vehicle

. Further, it is undisputed that Appellant did not own or have the right to possess the vehicle in question and did not possess a l arge amount of cash at the time of her arre st

. On the other hand, App ella nt was present when Londoff conducted his search of the
vehicle. And while t he contraband was not in plain view and t he handbag where the contraband

was found amounted to an enclosed space , Appellant told Londoff before he co mmenced his
search that th e ha ndbags on the passenger ’ s side floorboard belonged to her

. Furthermore, t he straw containing the methamphetamine was discovered in a handbag in the passenger ’ s side5 footwell in front of Appellant ’ s seated position and , thus , was accessible by Appellan t. Moreover, Appellant made an incriminating statement , which also indicated her consciousness of guilt, when she corrected Londoff ’ s statement that the substance in the straw was cocaine by informing him that it was, in fact, methamphetamine

. Appellant argu es that the evidence supports only a conclusion that she merely was in the presence of contraband, which does not amount to eviden ce of possession

. But i n making this argument, Appellant wholly ignores and omits any referen ce to the evidence that she (1) stated to Londoff that she owned the handbag in which the contraband was discovered and (2) demonstrated knowledge of what the con traband was when she corrected Londoff ’ s statement that he believed the substance to be c ocain e. 2 Having examin ed the e viden ce in the light most favorable to the verdict, we conclude that the jury reasonably could have determined beyond a reasonable dou bt that Appellant exercised control, management, or care over the methamphetamine at issue , wh ich she knew to be
contraban d. S ee id. at 405 . Therefore, we hold that the evidence is legally sufficient to support
the trial court ’ s judgment. Appellant ’ s first issue is overruled.

J UROR Q UALIFICATION
In her second issue, Appellant a rgues that the t rial court abused its discre tion by proceeding to trial over her objection and motion to disqualify a newly sworn and empaneled juror , who advised t he court of her concerns about being able to communicate in English. Appellant contends that t he trial cour t ’ s abuse of discretion resu lted in her being tried by an
eleven

- member jury in violation of her constitutional rights.
Standard of Review and Governing Law The determination as to whether a juror is disabled is within the discretion of the trial

court. Brooks v. State , 990 S.W.2d 278, 2 86 (Tex. Crim. App. 1999). Absent an abuse of that discretion, no reversible error will be found. Id. A tr ial court does not abuse its discretion if its ruling falls within the “ zone of reasonable disagreement

. ” M ontgo mery v. State , 810 S.W.2d
37 2, 391 (Tex. Crim. App. 1990)

. We review with considerable deference because the trial

2 See In re Lerma , 144 S.W.3d 21, 27 (Tex. App.

– El Paso 2004 ) (orig. proceeding) (discussing attorney ’ s duty regarding portrayal of record on appeal)

.6 judge is in the best positi on to evaluate a veniremember ’ s demeanor and responses. Cf. Gardner
v. State , 306 S.W.3d 274, 295

– 96 (Tex. Crim. App. 2009).
Texas Code o f Crim inal Procedure, Article 35.16(a)(11) requires that a prospective juror have more than a very limited ability to read and write. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 35.16(a)(11) (West 2006 )

. Mere ability to read or write one ’ s own name will not suffice. Hodg e v. State , 896 S.W.2d 340, 343 (Tex. App.

– Amarillo 1995, pet. ref ’ d)

. The requirement contemplates that the juror shall be able to express h er ideas in writing. Id. Encompassed within Article 35.16(a)(11) is that a jur or may be challenged based o n her inability to understand English. See Stillwell v. State , 466 S.W.3d 908, 912 (Tex. App.

– Fort Worth 2015, no pet.).
Discussion In the instant case, after the jury was empaneled and sworn, a juror brought her concerns

ov er her ability to communicat e in E nglish with others to the court ’ s attention , and the fol lowing exchange took place :

Judge, I ’ m so glad that

- - you know in the Philippines, our English language is our second language.

. . . .
And I

- - I understan d in English. But when he t alks a bout 100 percent, you know it ’ s just like I don ’ t really get it. I mean, I ’ m just, oh, Lord. I ’ m kind of nervous. Oh, my goodness, why are they going to pick me . . . . Thereafter, the following discussion was undertak en among the trial court, tr ial co unsel, and the juror:

The Court : Did you think about bringing that up before the Court called your name as a juror? Like when we were asking the questions and everything, did you think about saying, “ You know what, I ’ m not sure I speak English we ll eno ugh to be on the jury ” ?

Juror : I ’ m sorry, Judge, I supposed to

-- I supposed to get up and say something

-- say something about that.

The Court : Well, when you were downstairs, they offered you a chance to be excused because you don ’ t read, wri te, or understand English well enough. Did you no t understand that?

Juror : I understand it. But it ’ s kind of too late for me

--
The Court : It ’ s what for you?
[Juror] : It ’ s kind of too late for me to say that because I t hought they were talking abo ut tho se health issues. But then I said, oh, my g osh, why I didn ’ t, you know.7 The Court : Well, you ’ ve understood everything I ’ ve said, right?

Juror : Yes.

The Court : Did you understand the questioning from Ms. Anderson?

Juror : I understand.

Th e Cour t : Did you answer the questions truthfully with Ms. Anderson?

Juror : Yes.

The Court : Did you understand Mr. Adams ’ [s] questions?

Juror : Yes.

The Court : Did you answer those questions truthfully?

J uror : Yes.

T he Court : Are you under standi ng what I ’ m saying?

J uror : I understand.

T he Court : And are you

-- what makes you think you ’ re not going to be able to understand?

J uror : Maybe if there is a questions come up, but I don ’ t really, you know, underst and, you know. And I don ’ t k now ho w I say it and I don ’ t know how to answer it.

The Court : Any questions from the State?
[Prosecuting Attorney] : Ma ’ am, you said you grew up in the Philippines?

Juror : Yes.
[Prosecuting Attorney] : And English is your second language?

Juro r : Yes

. [Prosecuting Attorney] : And when you were growing up in the Philippines, did you learn English

-- did they teach English in school in the Philippines?

Juror : Yes.
[Prosecuting Attorney] : How long have you at lea st been familiar with the En glish

-- English language?

Juror : From

-- from since when I was elementary up through college.
[Prosecuting Attorney] : Okay. You ’ re specifically worried about that

-- and maybe I misunderstood you

-- that if something happ ens during the trial that yo u
-- y ou don ’ t fully understand, you won ’ t be able to ask anyone or know how to ask about whatever it was that you didn ’ t understand?8 Juror : I mean, when

-- when I answer the question and I don ’ t know if

-- if

-- example, if you understand the way I ans wer yo ur question.
[Prosecuting Attorney] : Okay. So are you more concerned with whether or not someone can understand you or whether or not you can understand the speaker?

Juror : Someone if

-- can understand me.
[Prosecu ting Attorney] : Okay.

Jur or : K ind of understand.
[Prosecuting Attorney] : Because it sounds like you understand and you speak English pretty well.

Juror : I ’ m just trying.
[Prosecuting Attorney] : You

-- and what I mean by that is, it seems to me that we are

-- we are able to com municate with one another

--

Juror : (Nods head affirmatively).
[Prosecuting Attorney] :

-- and understand each other. Would you agree with that?

Juror : I agree with that.
[Prosecuting Attorney] : I don ’ t have any f urther questions, Your Honor . I

--
The Court : Mr. Adams,

--

. . . .

-- do you have any questions?
[Defense Counsel] : Ma ’ am, are you worried about not being able to understand things that are sai d durin g a trial that have to do with legal terms?

JUROR: Yes.
[Defense C ounsel ] : Okay. Do you have any idea what that might be?

Juror : What idea you ’ re talking about? What idea are you talking about? I mean

. . . [.]
[Defense Counsel] : Well, I guess, if there ’ s
-- if there ’ s a
-- if there ’ s a legal term that might come up dur ing the trial that you wouldn ’ t be familiar with, then you wouldn ’ t know what it is, right?

Juror : Yes.
[Defense Counsel] : Okay.
Thereafter, the trial court a nd the juror had the following discussion :

The Court: [Y] ou seem like you understa nd eve rything I ’ m saying to you.9 Juror : (Nods head affirmatively.)

The Court : Yes?

J uror : Yes.

The Court : And I ’ m not sure what you ’ re afraid you are not going to understand. I understand you think your speaking might not be understood as well, but yo u certainly can make yourself understood. In a jury deliberation context is the only time you would be speaking, and you could certainly explain to the jurors with other words. You wouldn ’ t be required to speak in an ope n courtroom about things. S o the only part I would have

-- be concerned about is if you wouldn ’ t understand things that are discussed in the evidence. But that ’ s just average people coming in and saying what they saw and what they did. They ’ re really no t a lot of

-- I ’ m trying to think if there are any legal terms usually in, you know, evidence presentation. And maybe, but I don ’ t know. Is that what you ’ re concerned about? I don ’ t understand exactly what you ’ re concerned about not getting. I ’ m not un derstanding.

Juror : I sai d a wh ile ago if I ’ m
-- if I am answering the question, if I don ’ t say it right.

The Court : Well, right. But that ’ s what I ’ m saying. You won ’ t be doing any talking.

Juror : Okay.

The Court : That ’ s what I ’ m trying to unde rstand. If it ’ s your speakin g to m e or to other people or us speaking to you. If it ’ s us
-- are you concerned about not understanding things that people tel l you or that you hear? Are you concerned about that?

J uror : Yes.

The Court : Okay. So what ki nd of things are you concern ed abo ut that you won ’ t understand?

J uror : Just like

-- just like when we

-- you know, the presentation a while ago, you know, there are

-- there are questions that I don ’ t really get it.

The Court : Okay. Okay. Your prima ry concern is expressing you r thou ghts in English, but you do have some concerns also about understanding what is spoken in your presence?

Juror : Yes , Judge.

The juror then explained to the trial court that she attended elementary and secondary schools as well as college in the P hilippines and that the classes were taught in English

. She further related to the trial court that she completed he r juror questionnaire on her own and works as a preschool
teacher where she reads to children.
In Hodge v. Sta te , the court reviewed a tr i al court’s denial of a motion for mistrial based

on a juror’s expression to the trial court during deliberations about his difficulty understanding English. See 896 S.W.2d at 341. The trial court , trial counsel , and the juror me t in chambers to
discuss t he juror’s qualifications to serve. Id. During this meeting, the juror clearly answered questions about his length of residence in the c ounty, the entity which employed him, the nature10 of his work, facts about his family, and fa cts about living in Texas and Mexico. See id. He acknowledged that he completed his juror questionnaire , and he had no difficulty in answering any questions from the judge in the first three pages. Id. But he expressed that he ha d
difficulties commun icating in long conversatio n s and that he is unable to make his point , admitted that he did not have a clear picture of what “they” tried to say , and acknowledged that
he did not understand some of the words used. Id. He stated that a lthough he went to t he twelfth grade in La Paz, Chihuahua, Mexico, he did not take English in school but learned it from
conversations. Id. Lastly , the juror admitted that although he had been a citizen of the United States for the preceding three years, he had “a problem w ith speaking [and] writing E nglish clearly .” Id. at 342 . Following this discussion, the trial court denied the appellant’s motion for
mistrial. Id.
In concluding that the trial court did not abuse its discretion in finding the juro r to be qualified to serve, t he court of appeal s reasoned that the juror exhibited a greater command of the English language than merely writing his name and reading on a fourth grade level. Id. at 343 (citing cf. Johnson v. State , 773 S.W.2d 3 2 2, 33 1

– 32 (Tex. Crim. App. 198 9 ) (upholding disqualificat i on of venireperson when she had only a fourth

- grade education and the juror questionnaire contained words she did not understand) ; Allridge v. State , 762 S.W.2d 146, 164

– 65 (Tex. Crim. App. 1988) (uphold ing determination of disq ualification where venirepe r son volunteered, “I don ’ t know how to read or write too well,” did not fill out his jury questionnaire
“because I don ’ t know how to write,” and only had gone to the fourth grade and had no other English training) )

. The court fu rther noted that the juror w as able, without assistance , to complete the juror questionnaire. See Hodge , 896 S.W.2d at 343 (citing c f. Montoya v. State , 810 S.W.2d 160, 16 9

– 70 (Tex. Crim. App. 1989) (no reversible error where ven ireperson
excused because he needed the assistance o f interpreter and testified he had limited understanding of English and became confused when the prosecutor attempted to explain the procedures); Goodwin v. State , 799 S.W.2d 719, 735

– 36 (Tex. Cr im

. App. 1990) (evidence
sufficien t to sustain a challenge wh e re venireperson had to have help in filling out questionnaire because she could not write) )

. Lastly, the court emphasized that the juror was able to communicate verbally and answer questions propounded to him by the trial judge

. See Hodge

, 896 S.W.2d at 343

. And a lt hough it acknowledged that the juror expressed some difficulty in11 communicating with large words or for long periods of time, it determined that these matters standing alone are not sufficient to establish disqualif ication as a matter of law. See id. at 3 43.
In this case , the juror communicated at length in English with the trial court , and it later was determined that she completed her e lementary, secondary, and college education in the Philippines in classes ta ught in English

. The juror further confirmed that she understood what was said during voir dire , that she effectively could communicate in English, and that she completed the juror que stionnaire herself. She also conveyed that she works as a preschool

te acher where she reads to chi ldren. Based on t he foregoing, giving considerable deference to
the trial court, which wa s in the best position to evaluate the juror’s demeanor and responses , we conclude that the trial court ’s ruling that the juror was qualif ied to serve was not outside the zone
of reaso nable disagreement. See Montgomery , 810 S.W.2d at 391 ; see also Hodge , 896 S.W.2d
at 343 ; Cf. Gardner , 306 S.W.3d at 295

– 96 . Therefore, we hold that the trial court did not abuse its discretion in overruling Appellant’s motion to disqua lify the juror. A ppellant’s second issue
is overruled.

C OURT C OSTS In her third issue, Appellant argues that the trial court erred in assessing a “ t ime

p ayment ” f ee previously authorized by Texas Local Government Code, Sectio n 133.103 in its judgment. 3 The S tate concede s that this fee is facially unconstitutional . We agree. See Salinas
v. State , 523 S.W.3d 103 , 112 n. 54 (Tex. Crim. App. 2017 ) ; see also Ovalle v. State , 592
S.W.3d 615, 618 n.1 (Tex. App.

— Dallas 2020, pet. fil ed) ; Simmons v. State , 590 S.W.3d 702,
7 12 (Tex. App.

– Waco 2019, no pet.) ; Dulin v. St ate , 583 S.W.3d 351, 353 (Tex. App.

–Austin 2019, no pet.); Johnson v. State , 573 S.W.3d 328, 340 (Tex. App.

– Houston [14th Dist.] 2019, no pet.) (concluding that, because the portions of time payme nt fee authori zed by subsections
Section 1 33.103 (b) and (d) were deposited in general revenue an d were not sufficiently allocated

3 The Texas Legislature passed leg islation, effect ive January 1, 2020, that transfers Texas Local Go vernment Code , S ection 133.103 to Texas Code of Criminal Procedure , A rticle 102.030 and revises the statute to provide tha t all of the fees collected under the section are “to be used for th e purpose of imp rov ing the collection of outstanding cour t costs, fines, reimbursement fees, or restitution or improving the efficiency of the administration of justice in the county or mu nicipality.” See Act of May 23, 2019, 86th Leg., R.S., S.B. 346, § 2.54, 2019 Tex. Ses s. Law Serv. Ch. 1352. The changes ap ply only to a cost, fee, or fine assessed on a conviction for an offense committed on or after the effective date of the Act. Id. § 5.01. Because the offense in this case was committed before Januar y 1, 2020, the f ormer law applies. See Ovalle v. State , 592 S.W.3d 615, 617 n.1 (Tex. App.

– Dallas 2020, pet. filed).12 to administration of criminal justice system, those subsections were facially unconstitutional as violating the separation

- of

- powers provisi on of Texas Constitution )

. Here, t he judgment of conviction reflects that the tria l court assessed $ 289 .00 in court costs. The judgment includes a document identified as “Attachment A Order to Withdraw Funds,” which states that Appellant ha s incurred “[c ]ourt costs, fees and/or fin es and/or
restitut ion” in the amount of $ 289.00

. The certified bill of costs itemizes the court costs imposed, which total $ 289 .00 with a $289.00 balance remaining

. T he bill of costs indicates that the $ 25.00 tim e payment fee will be assessed if any par t of the court cos ts is paid on or after the
31st d ay after the date the judgment assessing the court costs is entered. But see T EX

. L OC

. G OV ’ T C ODE A NN

. § 133.1103 (c) (West Supp. 2019 ) (treasurer shall depo sit ten percent of f ees collected under this sec tion in general fund of county or municipality for purpose of improv ing efficiency of administration of justi ce in county or municipality).
The proper remedy when a trial court erroneously include s amounts as court costs is to modify the judgment to delet e erroneous amounts

. See Sturdivant v . State , 445 S.W.3d 435, 443 (Tex . App.

– Houston [1st Dist.] 2014, pet. ref’d). Accordingly, we will modify the trial court’s judgment and Attachment A to reflect the appropriat e assessment of court costs that do not
i nclude the time payment fee

. See Oval le , 592 S.W.3d at 618. Appellant ’ s third issue is
sustained

.

C ONCLUSION Having sustained Appellant’s third issue, we modify the trial court’s judgment to reflect
that the amo unt of court costs is $ 26 6

. 5 0

. See T EX

. R. A PP

. P

. 43.2(b). We also modify
At tachment A to state that the total amount of “court costs, fees and/or fines and/or restitution” is $ 26 6

. 5 0

. See id

. Having overruled Appellant’s first and second issues, w e a ffirm the tri al court’s judgment as modif ied

.

J AMES T. W ORTHEN Chief Justice
Opinion delivered September 9, 2020. Panel consisted of Worthen, C.J., Hoy le, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEAL S DISTRICT OF TEX AS

JUDGMENT

SEPTEMBER 9 , 2020

NO. 12

- 19

- 00347

- CR

CHARITY IRVIN , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114

- 1520

- 18 ) THIS CAUSE came to be heard on the appell ate record and b rie fs filed herein, and the same being co nsidered, it is the opinion of this court that the judgment of the trial court below should be modified and as modified, affirme d

. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the cou rt below be modified to reflect that the amount of court co sts is $ 26 6

. 5 0

. It is further ORDERED, ADJUDGED and DECRED that Attachment A is modified to state that the total amount of “court costs, fees and/or fines and/or restitution” is $ 26 6

. 5 0 , an d as modified , t he judg ment of the trial court is affirme d ; and th at this decision be certified to the court below for observance. James T. Worthen , Chief Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.