## NO. 12

- 22

- 00071

- CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

BRIAN KEITH MCCOY , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEA L FROM THE 7TH

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION
Br ian Keith McCoy appeals hi s conviction for injury to an elderly individual

. Appellant
raises two issues challenging the trial court’s denial of a mistrial and assessment of court costs.
We affirm.

B ACKGROUND Appellant was charged by indictment with injury to an elderly individual , enhanced to habitual offender level by two prior felony offenses

. 1 H e pleaded “ not guilty” to the offense , and
the matter proceeded to a jury trial

. The jury found Appellant “guilty” as charged. Appellant pleaded “true” to the enhancement paragraphs , and the jury assessed his punishment at imprisonment for a term of fifty

- nine years

. This appeal followed.

M OTION FOR M ISTRIAL In Appellant’s fi rst issue, he argues that the trial court erred by denying his motion for
mistrial based on the alleged tainting o f the jury panel by the comments of a prospective juror.

1 A third

- degree felony , p unishable as charged by imprisonment for life or any term of not more than 99 years or less than 25 years

. See T EX

. P ENAL C ODE A N N

. § § 22 .04( a ) (3) , ( f ) (West Supp. 2022 ) ; 12.42(d) (West 2019 )

.2 Standard of Review and Applicable Law
We review a trial court’s denial of a mistria l fo r an abuse of discretion. Ocon v. State , 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). We view the evidence in t he light most favorable to the trial court’s ruling. Id. The ruling must be upheld if it was within the zone of reasonable
disa greement. Id. M istrial is the appropriate remedy when erro r is so prejudicial that expenditure of further time and expense would be futile. Ladd v. State , 3 S.W.3d 547, 567 (Tex. Crim. App. 1999). It is a remedy intended for extreme circu m stances, when prejudice is incur able and less
drastic alternatives have been explored. Ocon , 284 S.W.3d at 884. Furthermore, instructions to
the jury generally are considered sufficient to cure improprieties that occur during trial, and we generally presume that a j ury will follow the j udge’s instructions. S ee Gamboa v. St a te , 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). Analysis
N ear the end of vo ir dire in this case , the trial court asked the panel whether there was

“ [a]nything that you thought [the attorneys] were going to be asking o f you that they didn’t ask or anything that you’d want to make sure they knew about you before they go back to do their jury selection.” Three venire persons responded, including V enireperson 90 , who stated as
follows:

VENIREPERSON 90 : They didn’t really as k if anybody else was employed with the county or prior law enforcement or had any interaction with the individual

. I don’t remember his face, but I did work at the jail for about four years.
THE COURT: Okay.

VENIREPERSON 90: Could h ave been a possibilit y he remembers me or something like that.

After the panel left the courtroom, Appellant moved for a mistrial base d on Venireperson 90’s
remarks. The trial court denied the motion, noting that Venireperson 90’s remarks were

o bviously something you don’t w ant someone saying, but it wasn’t anything I found to be mistrialable. I think most people that are sitting on jur ies know a defendant has been arrested, has been in jail. There’s nothing of any substance there that would sugg est that he managed the defend ant over at the jail.3 On appeal, Appellant argues that Venireperson 90 ’s remarks tainted the jury panel by imply ing that he was incarcerated for the current offense and damaging his presumption of
innocence. A defendant has a right to the presumption of innocence, and, as a general rule, disclosing to the jury that the defendant is incarcerated violates that right. See Estelle v.
Williams , 425 U.S. 501, 503

- 04, 96 S. St. 1691, 1692

- 93, 48 L. Ed. 2d 126 (1976); Randle v.
State , 826 S.W.2d 943, 944

- 45 (Tex. Crim. App. 1992); Pierce v. State , 234 S.W.3d 265, 268 (Tex. App

. — W aco 200 7, pet. ref’d). However, Appellant fail s to show Venireperson 90
disclosed that he was incarcerated. To the contrary, Venireperson 90 stated that he did not remember seeing Appellan t at the jail when he worked there. Under these circumstances, w e conclude that the trial court did not abuse its discretion by denying Appellant’s motion for
mistrial based on Venirepers on 90’s comments. See Ocon , 284 S.W.3d at 884. Accordingly, we

overru le Appellant’s first issue.

C OURT C OSTS In Appellant’s s econd issue , he argues that the trial court erred by impo sing court costs not supported by a bill of costs and ordering the withholding of funds to pay those costs from his
inmate trust account

. Sta ndard of Review and Applicable Law The code of criminal procedure requires that a judgment order a defendant to pa y court

costs. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 42.16 (West 2018 ) ; Johnson v. State , 423 S.W.3d 385, 390 (Tex. Crim. App. 2014)

. A cost is not payable by the person charged with the cost until a written bill containing the items of cos t is produced, signed by the officer who charged the cost or the officer who is entitled to receive payment for the cost, and provided to the person charge d
with th e cost. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 103.001(b) (West 2018 ). We review the assessment of court costs on appeal to determine if there is a basis for the cost. Johnson , 423
S.W.3d at 390. A bill of costs is not required to sustain statutorily authorized a nd assessed court costs , but it is the most expedient and, therefore, preferable method. See id. at 396. If a bill of costs is omitted, one can be prepared and presented to the appellate court in a supplemental clerk’s
record. See id. at 392.4 Analysis
The judgment in this case reflects court costs in the amount of $2 51.5 0

. The attached
order to withdraw funds from App ellant’s inmate trust account states that he “ owes c ourt costs, fees , fines and/or restitution in the amount $2 51.5 0 ” and orders that payment be made from the

account. After Appellant filed his brief, the appellate record was supplemented with a bill of

co sts. See Johnson v. State , 405 S.W.3d 3 5 0, 353 (Tex. App.

— Tyler 2013, no pet.) (permitting supplementation of appellate record with bill of c osts). The bill of costs lists various fees totaling $25 1.5 0 with a balance of $2 26.5 0. Appellant does not challeng e a specific cost or basis for the
assessment of a specific cost. Absent such a challenge, the bill of costs of record is sufficient to

suppo rt the assessed costs in this c ase. See Johnson , 423 S.W.3d at 39 6. Accordingly, we overrule Appellant’s second iss ue.

D ISPOSITION Having overrul ed Appellant’s first and second issue s, we affirm the trial court’s judgment.

B RIAN H OYLE Justice
Opinion delivered March 22 , 2023. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( DO NOT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MARCH 22 , 2023

NO. 12

- 2 2

- 00071

- CR

BRIAN KEITH MCCOY , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 7th District Court
of Smith Count y, Texas (Tr.Ct.No. 007

- 1376

- 20 ) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being c onsidered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECR EED that the judgment
of the court below be in all things affirmed , and that this decision be certified to the court
below for ob servance. Brian Hoyle , Justice

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