## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 21

- 00085

- CR

PATRICK BRANDON , JR. , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 188th District Court Gregg County, Texas Trial Court No. 47754

- A

Bef o re Morriss, C.J., Stevens and van Cleef , JJ. Memorandum Opinion by Justice Stevens2 

### ME MORANDUM OPINION
After a jury found Patrick Brandon, Jr. , guilty of aggrava t ed robbery, he was sentenced to sixty years’ confinement in prison and ordered to pay a fine and court costs. In the same proceeding, Brandon was also convicted of possession of a controlled substance with the intent to deliver, possession of a controlled substance, and unlawful possession of a firearm by a f el on
. 1
As a result of those co n v ictions, Brandon was sentenced to prison for twenty years , five years, and ten years, respectively. The trial court ordered the four sentences to run concurrently.
On appeal, Brandon maintains that (1) the evidence was insufficient to prove beyond a

r e a s onable doubt that he used or exhibited a firearm during the commission of the robbery , ( 2 ) the State violated his equal protection rights by exercising p ere mptory strikes to remove two
of the three African American panel members within the strik e z o n e , ( 3 ) the trial court erred when it assessed duplicative court costs, ( 4 ) the trial court erred by cumulating the fines assessed in multiple counts, and ( 5 ) the trial court erred when it assess ed time payment fees. For the reasons below, we modify t he t r i al court’s judgment and the bill of costs by deleting the court costs and fees 2 and by changing the notation of Brandon’s plea to the State’s enhancement allegation f rom “ not true ” to “ true. ” As modified, w e affirm the trial cou rt’s judgment.

1 Brandon a ppeals th ose conv ictions in our cause numbe r 06

- 21

- 00086

- CR.

2 A $15.00 time payment fe e was inclu ded in the court cost s
.3

I. Evi den c e O n M a y 1, 2018, Ashlyn Varnell was going about her job duties as a teller at Regions Bank in Longview

. Around 1:00 o’clock in the afternoon , an individual app roached her window
and slid a note t o her

. The note said,
Do not hi t any panic buttons o r a l arms
. I have a gun. Do not make eye contact with anyone. Give me all the money out this teller, no dye packs or tracking devices. Once you give me all the money, turn around and go to a restroom , slide me the note back, do not press any buttons or ale r t an y o n e or police.
Varnell said , “[M]y immediate reaction was we’re being robbed, so get all the money that was in
my teller draw er and hand it over.” Because the note said , “I have a gun ,” Var nell believed that
she had to com ply with the note’s i nst r ucti o n s , or she would have been shot. V a rnell slid the
note back to the robber , looked up, and then immediately be gan getting what she believed to be
around $11,000.00 out of the vault. After givi ng him the money , he “turned arou nd and walked
out.” Var n ell s a i d that t he money was made up of multiple banded stacks of cash in denominations of hundreds, twen ties, tens, fives, and ones

. A fter the initial commotion subsided , Varnell began having a pa nic attack . She said, “I
couldn’ t get it out, they ha d n o clu e w h a t was actually happening until I just screamed the word, you know, robbery; and so, yes, I did have an emotional outbreak

. ” When the other employees realized that the bank had just been ro bbed, they began locking the bank ’s doors. Varnell sa id

t hat s h e f elt “no relief until [she] left that bank later on that day.” According to Varnell, during the robbery, she could only see the upper half of the
robber ’s torso from behind the counter. Sh e said that the individual was a n African American4

mal e i n his m i d to late twenties and that he had some fac ial hair, but not a full beard. H e was also wearing a red or black hat. She did not recall seeing any distinctive markings on him

. When Varnell gave her written statement to law enforcement after th e r o bber y , she wrote
that the robber ’s note said, “I will shoot you.” Although her written statement differed from the
actual note, Varnell said that she interpreted the robber’s assertion that “ [ h e ha d] a gun ” to mean
that “if [she] didn’t follow those d ema n ds t h a t [ the] individual robbing t he bank [would] shoot [her].” According to Varnell , she had previously received training relat ed to dye packs and bait
money , 3 and t here had been dye packs in her drawer that day

. But , because sh e felt threatened,
sh e d i d no t u se the m
. Varnell left the bank around 5:30 p.m., went home, immediately packed a bag , and went to stay with her uncle for a week. She did not return to work until a week after the robbery , and she left her job at the bank about three months la ter

. Va r n e ll said that , when she did return to work, she was “ [ a ] bsolutely” anxious and, at nighttime, she had had trouble sleeping

. On cross

- examination, Varnell conceded that she neith er saw a gun during the robbery

nor saw t he r o bber make any movemen ts a s if h e had a gun. But she also explained that , from
where she was , she could not see below the middle of his chest

. According to Varnell, the
robber did not act “necessarily ou t of the ordinary , ” and he did not raise his voice o r use a menacing tone wh e n sp e a k ing to her. On the day of the robbery, Amber Campbell had been working at the bank as a financial relationship consultant

. She had just returned from lunch when the robbery occurred. Camp bell explained that the teller’ s windows were right ac ros s fro m h er office , so she had a “straight view

3 Duri ng training, Varnell was instr ucted tha t , i f there could be a violen t outc ome , b o dily injury, or loss of lif e, she sho uld not use a dy e pack or m arked mone y.5

of the tellers. ” According to Campbell, she noticed a n individual in front of Varnell’s station , with one or two other customers in front of the robber

. Campb ell said that she made eye cont ac t
with him tw o or thre e t i mes
. But w hen he reached Varnell’s window, Campbell could not see what was happening

. She did, however, see the individual “ walk out, and he [was] ho lding his
shirt. ” Campbell said that , after h e left the bank, Varnell “kind of collapse [ d]” and then
Ca mpbe l l saw Varnell run into the back of the bank. 4 Realizing what had just happened, Campbell went to lock the bank’s door

. Campbell believed the robber ’s shirt was short

- sleeved, white , gray , or a light color , with
red writin g o n it

. She wa s certain he was w e aring a red h at and red jeans

. Campbell said that his shoes may have had red writing on them. After identifying Brandon in the courtroom , Campbe l l said that there was “[n]o doubt in [her] m ind ” that he was the individua l w ho had rob bed the
bank

. Camp b e l l conceded, however, that she did not identify the robber immediately after the robbery. When asked how she could identify him in the courtroom , but was unable to identif y him the day of t he robbery, Campbell explained th at the po lic e may have a s ked h e r a “ different question [,]” or “ [m] aybe [she] was still a little taken back by it

. ” Yet, she repeated that she was 100 percent sure that Brandon had been the robber

. Campbell said that the r obbery took place in
about two or th ree mi nut e s

— “ g ive o r t ake ”

— a n d t hat she did not see a weapon during the
incident. According to Campbell, the robbery was a significant event in her life , and the incident
had caused her to worry about going to work in t he future.

4 Campbe l l said, “[Varn ell] was very emotional, so she just hit the ground. She was crying, she w a s
- - I think she was having a panic at tac k , k ind of hyperventilatin g .”6

Ka thryn A. Lumley, wh o w as emp loy ed by Regi on s Ban k i n corporate security, testified
that she was familiar with the bank ’ s internal and external security. 5 On the day of the robbery,
the bank ’ s security cameras had been in working order. When Lumley watched the r ecordings

an d l ooked at th e still sh o ts t ak e n from them, she did not see the robber display a weapon. Lumley said that , after the robbery, she spoke to Varnell, who told her that she did not give the robber a dye pack or a tracker bec ause if sh e had , she would ha ve b e en shot.
Je ffrey Bo wl e s , w h o had been visiting Regions Bank a little after 1:00 p.m., testified that
he had seen an individual walk out of the bank wearing a red hat and red pants. Bowles stated that the individual proc eeded to get into a “Toyota like veh icle, lik e a four

- do o r s ed an , light in
color. ” He then clarified that the vehicle had been silver

. According to Bowles, the person had been “carrying s omething because when he came out of the exit

- - the doors out of R egions he stuffed something up un der neath his c oat

- - u p u n de r ne a th his arm.” He said he did not see any type of firearm. Bowles believed that the individual entered th e driver’s side door of the vehicle
and then headed south

. Bowles stated that his car had been parked in the pa rking p lac e adja cen t

to the si l v er c ar
. According to Bowles, the person getting into the car was a younger African
American man who had been wear ing a brightly colored hat. On May 3, 2018, around 2:00 a.m., patrol officer Danny Isonhood was sitting in his patro l vehicl e “ ob serving a s p e cif ic a rea[,]” which was known for its high crime rate. Isonhood
observed a silver car driving northbound without stopping at a stop sign. Isonhood began

5 L uml ey h ad worked for the Federal B ureau o f Investig ation for twenty

- two years

. During th a t time, she inves tigated white

- collar c rime s and had experien ce in investigating bank robb er ies.7

pursuing the vehicle at a high rate of sp eed , and the driver, who was subs eq uently id en tified as
B rando n, eventually stopped

. Heath DeGarmo , the backup officer at the scene, testified that , after he arrived, he placed Brandon in handcuffs and proceeded to search his car, finding narcotics, marih uana and a “clear
ba ggie that had a white po wd ery substa n ce th at [he] believed to be powder cocaine.” In a subsequent search of the vehicle, officers found a large amount of money in the console, some of which was banded, but “[t]here was also loose money throughout.” Accor ding to DeGar mo , a lo ade d Taurus 9

- m i llime te r pistol was also found underneath the driver’s seat

. II. Sufficiency of the Evidence
Bra ndon contends that the evidence was insufficient to support his conviction of aggravated robbery b ecause the State did not prove th at he us e d or exhibited a dea dl y weapon during the commission of the robbery.
A. Standard of Review In evaluating legal su fficiency in this case, we must consider all the evidence in the light most favorable to the jury’ s verdict to determi ne whether an y ration al ju ry could h a ve fo un d , beyond a reasonable doubt, that Brandon was guilty of aggr avated robbery

. See Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia , 433 U .S.
3 07, 319 (1 9 79); Hartsfield v

. State , 30 5 S.W.3d 859 , 863 (T e x. App.

— Texarkana 2010, pet. ref’d) (citing Clayton v . State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)) ) . Our rigorous legal sufficiency review focuse s on the quality of the evidence pres en ted

. B rooks , 32 3 S.W.3d at 317 ( Co chran, J. , concurrin g ) . We e x amine legal sufficiency under the direction of the Bro oks opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in8

testimony, to weigh the evidence, a nd to d raw reaso n able inferences fr om bas ic fa cts to ul t i mate
fa c ts.” Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. Ap p. 2007) (citing Jackson , 443 U.S. at
318

– 19). We afford almost total deference to a jury’s credi bility determinations. Lancon v.
State , 253 S .W.3d 699 , 705 (Tex. Crim. A pp. 20 08)

. An appel l a te co ur t may not re

- evaluate the weight and the credibility of the evidence or substitute its judgment for that of the fact

- finder.
Williams v. State , 235 S.W. 3d 742, 750 (Tex. Crim. App. 2007).
Furth er , circums t antial evidence is as pr oba ti ve as dir e c t evi de n ce, and it can be sufficient alone in establishing guilt. Sorrells v. State , 343 S.W.3d 152, 155 (Tex. Crim. App. 2011); Clayton v. State , 235 S.W.3d 7 72, 778 (Tex. Crim. App. 2007). “ [I]n an aly zi ng legal sufficiency, we ‘ de termin e w he ther the n e cessa ry inferences are reas onable based upon the combined and cumulative force of all the evidence when viewed in the light most fav ora ble to
the ver dict. ’ ” Cl ayton , 235 S.W.3d at 778 (citin g Hooper , 2 14 S .W.3d at 16

– 17 )

. “Evidenc e is leg all y insuffici e n t whe n t he ‘only prop er verdict’ is acquittal.” Nelson v. State , 405 S.W.3d 113, 122 (Tex. App

— Houston [1 st Dist.] 2013, pet. ref’d) (quoting Tibbs v. Florida , 457 U.S. 31, 41

– 42 (1982)). Finally, “ [ l ] eg al sufficiency of the evide nc e is m eas ur ed by the e lemen ts of the offens e as defined by a hypothetically correct jury charge. ” Malik v. Sate , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically cor rect jury charge “sets out the law, is a uthor iz ed by the indictment, does n ot unn ece ss a rily inc r e ase t he S tate’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the
defe ndant was tried.” Id

.9

B. Discussion
In it s indictment , the State alle ge d that Br an don,

on o r abou t t he 1 st day of May, 2018 , . . . while in the course of committing theft of property and with the intent to obtain or mai ntain control of the property, intentionally or knowingly threat en[ed ] o r place[d] Ashlyn Varn ell in fear o f immi nen t bodily i n

j u ry or d e ath, and [ h e] did then and there use or exhibit a deadly weapon; to

- wit : a firearm during the commission of said robbe ry. The indictment alleged the elements of aggravated robbery 6 and s pe cified that the deadly
weapon use d or exh ibi te d was a f i r earm. B ecause the State increased its burden of proof by specifying a firearm rather than just alleging use or exhibition of a deadly weapon, the State was bound to prove that a firearm was used o r exhibited du ring the robbery. Cu rr y v. S tat e , 30
S.W.3 d 394, 40 3 (Tex. Crim. App. 2000). A deadly weapon is “anything that in the manner of its use or intended use is capable of cau sing death or serious bodily injury.” T EX

. P ENAL C ODE
A NN . § 1

. 07(a)( 17 ) (B). A firearm is “any device de si gned, ma d e, or adapt e d to e xp e l a projectile through a barrel by using the energy generated by an explosion or burning substance or any
device readi ly convertible to that use.” T EX

. P ENAL C ODE A NN . § 46. 01 (3) ( S upp.)

. In an effort to establish that th e evide n ce wa s insuffi c i ent t o p rove that he used or
exhibited a deadly weapon during the commission of the robbery, Brandon relies on the fact that

n o one saw him in possession of a weapon during the robbery

. In suppor t o f his position,
Brandon directs u s to Fl o res v . State , 6 2 0 S.W .3 d 154 (Tex. Crim. App. 2021) . In that case, Flores robbed a convenience store while exhibiting “a cordless electric dr ill wrapped in two plastic bags.” Id

. at 156. Flores pointed t he dri ll as if it were a gun , but he never a ttemp t ed to
strike t h e cash ie r nor did he threaten to do so. Id

. The Texas Court of Criminal Appeals stated,

6 See T EX

. P ENAL C O DE A NN . § 29.0 3

.10

While the State was of course not re quired to present evidence establishing that Appella nt actually intended to use the drill to cause serious b od ily inj u r y or death , it was at least require d to p re s ent s om e minimal evidence that he intend ed a violent use of the d rill

— one that would be at le ast “ capable of causing death or serious bodily injury. ”
Id

. at 60 (citing T EX

. P ENAL C ODE A NN . § 1.07(a )( 17)(B) )

. The issue i n Flo res was whet her th e drill was used in a manner that was capab le of causing death or serious bodily injury. That is n o t the issue in this case. The weapon used in this

case, a firearm , is considered a deadly weapon per se. T E X

. P ENAL C O DE A NN . § 1. 0 7(a)( 17) (B)

. And , with f

ew exc eption s , a gun is capable of causin g death or serious bodily injury. H ere , we must determi n e whether Brandon actually “use d ” or “exhibited” a firearm during the commission of the robbery

. Patterson v. S tate , 7 69 S.W.2d 93 8 ( Tex . C ri m. App . 1 98 9 ) , is the seminal Texas case
that dis c usses the meaning s of “use” and “exhibit .” In that case , the T exas Court of Criminal Appeals explained, Thus, “ used . . . a deadly weapon ” during the commission of the off en se mea ns th at the dea d ly we apo n was em plo yed or utilized in order to achieve it s p urpose.
. . . Therefore, the court of criminal appeals was cor r ect when it stated that “ ‘ used . . . durin g the commission of a felony offense’ refers certainly to the wieldi ng o f a fir ea rm with ef f ect, but i t exte nds a s well to any employment of a deadl y we apon, even its simple possession, if such possession facilitat e s the associated felony. ” Patterson v. S tate , [ 723 S.W.2d 308, 315 (Tex. App.

— Austin 1987) , aff ’ d and remand ed b y 76 9 S .W .2d 938 ]

. Howev er, t o “ exh ib i t ” a deadly weapon it need only b e consci ously displayed during the commission of the required felony o f

fense. Thus, one can “ use ” a deadly weapon without exhibiting it, but it is doub tful one can exhibit a deadl y we apon du ri ng the com m issio n o f a fel o ny without using it.
Id

. at 941

. In Herr ing v. State , 202 S.W.3d 764 (Tex. Crim. App. 2006), the Texas Court of Criminal Appeals held that the evidence was sufficient to prove that the d efendant had used or11

exhib it ed a k nif

e when he co m mitte d a gg ravat e d r obbery. The evidence in that c ase showed that the defendant broke into the victim’s home and, after a s truggle, tied up the occupant of the home. The victim testified at trial, “He said he had a knife and I n eve r [s aw] the k nife but I was
p ret ty sure he had one.” The Texas Court of C riminal Ap peals found that the defendant’s
statement that he had a knife was an admission and, thus, “admissible as substantive evidence.”
Id. a t 766. Consequently, the defendant’s s ta teme nts t hat he had a kni fe and wou ld kil l t he
victim su pported a finding that H erring used or exhibited a deadly weapon during the
commission of the robbery. Id

. Here , the evidence was in sufficient to show that B randon exhibited the weapo n duri ng th e robbery

. That said , the ev idence was su ffi cient to sho w that Brandon used the weapon during the robbery

. Brandon entered the bank fo r no other reason than to rob it

. In an effort to produce the
result he desired

— stealing cash

— Bra ndon h and ed Varnell a note that stat ed , i n i ts second

sent enc e, tha t he ha d a gun. The fact tha t Brandon did not orally tell Varnell that he was in possessio n of a gun makes little, if any, difference. Brandon clearly communic ated that
information to Var n ell

. In a d dition, n o t only did Bra ndon ind icate in the no te to Varnell that he
had a gun, but he a lso ordered her to do a number of other things, such as give h i m “all the
money , ” “go to a restroom,” and “ slide the note back to him. ” Li kewi se, in the no te , Br and on orde red Va rnell to refrain f rom d oi n g several things, inclu ding, pushing butto ns, making eye contact, and using dye packs or tracking devices. The ju r y was well within its discretion to inf er , from the contents of the note , that , if Varnell d i d not com pl y wit h Bran do n’s orde rs , Bran don
h ad in his possess ion a firearm with which he woul d forc e Varnell to compl y or suffer the12

consequences. Certainly, Brando n ’s written statement that he wa s i n possession of the gun directly facilitated the ba nk rob ber y.
We , ther ef

ore, overrule Brandon ’s first po int of error.
I II . The State Did Not Violate Brandon ’s Eq ual Protection Rights In his third point of error, Br a ndon contends that the State vi olated his equal protection rights when it exercised p ere mpt ory s trikes to r em ove two of the three Afr ican American ju ry panel members within t he strike zone.
A. A pplicab le La w and Standard of Review The State’s purposeful use of p e remptory strikes in a racially discriminatory manner violates the Eq ual Pr ote ct ion Clause of the Fourteenth A mendment to t he Unite d S tates
Co nstitution. Batson v. Kentucky , 476 U.S. 79 , 89 (19 86). The United States Supreme Court has
outlined a three

- ste p process for evaluating claims that the State has exercised perempto ry cha lle ng es in a man ner violating the E qual Protecti on Claus e. Hern and ez v. New York , 500 U. S. 352, 358 (1991); Bat

son , 47 U.S. at 96

– 98 . The defendant must first make a prima facie

s h owing that the State has exerc ised peremptory challenges on the basi s of r ace
. Hernandez , 500
U.S. at 358

. Once that pri ma fac ie sh owi ng is accomplished, the bur den shifts to the State to
pre sent a racially n eutral reason for the challenged jury strikes

. Batson , 476 U.S. at 97

– 98 ; Nieto
v. State , 365 S.W.3d 673, 676 (Te x. Cri m. Ap p. 2 012). O nce the State’s re as on is proff ered, the
b urd en of persuasion shifts bac k, and the person raisi ng the chall enge must then convince the court that the reason given b y the State was not race
- neutr al and was merely a pretext for
conceal ing di scr im ination. B atson , U.S. at 98 ; Nieto , 365 S. W.3d a t 676

.13

Unl ess it is clearly erro neous, the trial court’ s rulin g on the issue of discriminatory intent
must be sustained. He r

nandez , 500 U.S. at 369 . Bec ause the trial court is in the best pos ition to
de termine if the State’s faciall y neutral exp lanati on fo r a p ere mptory strike is genui ne , a high degree of de ference is g iven to the trial court’s decision in this regard. Nieto , 365 S.W.3d at 676.
In its e valuation, the trial court “must focus on the ge nu ineness of the asserted non

- ra cial motive,
rather than th e rea sonableness.” Id

. (ci ting Purkett v. Elem , 5 14 U.S. 765, 769 (1995) (per curiam) ). To determine whether the tria l court’s ruling was clearly e rroneous, we examine the
record to dete rmine whe th er the ruli ng leaves us with a “ ‘definite a nd fir m con vic ti on that a
mistake has bee n committed.’” Guzman v. Stat e , 85 S.W.3d 242, 254 (Tex. Crim. App. 2002) (quoting United S t ates v. Fernandez , 887 F.2d 5 64, 567 ( 5 th Cir. 1989) (per curiam))

. The t ria l
court’s dec ision is not clearl y err oneous i f it i s “ su ppo rt ed by the record, inclu ding the voir dire,
the [ State ] ’ s explanation for [its] use of a peremptory challenge, the reb u ttal by appellant [ , ] and impe aching evidence. ” Camacho v. State , 86 4 S.W. 2d 52 4, 528 (Tex . Crim. App. 1993).
B. Dis cussi on
Br andon co mp lai ns t hat the State used two of its perem ptory strikes to prevent Phillip Williams and Latanya Sammons, both African American jury panel members , from sitting on the jury

. In Brandon’s opini on, t he trial co urt clearly erred w hen it accept ed th e Stat e’s p rof f ere d

race
- neutral reason s . According to Bra ndon, t he State’s race

- neutral reasons were either unsupported by the record or shared by other non

- African American jurors against whom t he
Sta te di d not exerc ise peremptory stri kes.14

The St ate first n ote s tha t Br andon presented an exceptionally we ak pri ma faci e case of
racial discrim ination in regard to all of his Batson challenges

. 7 Yet, w hen a res ponding party has
offered a race
- neutra l reas on fo r a perempt ory challenge and t he trial cour t ha s ruled on t he
ulti mate issue of purposeful discrimina tion, the pre liminary question of whether the objecting party made a prima f

acie case becomes moot. Simp son v. State , 119 S.W.3d 262, 268 (Tex.
Crim. Ap p. 2003); Mal one v. State , 919 S .W.2d 410, 41 2 (T ex. Cri m. Ap p. 1996 ) . Here, b ecause the State offered race
- neutral reasons for its strikes in regard to Williams and Sammons and the
trial court ruled in its favor , the pr ima facie case inquiry was moot e d

. A s a result , we move on to
whet her the State ’s expresse d rea son s were in fact race

- ne u tral.

1
. Ph illip Williams
After the parties made their strikes, the trial court a n nounced the n ames of the panel
members who would be seated as juror s and ask ed the parties whether they had a ny quest ions or
ob jectio ns
. Bra ndon made a Baston challenge i n rega rd to Williams

. The State ’s initial response
was that it struck Williams beca u se it had is sues with his answers concerning the meaning of

“ beyond all d oub t ” as opposed to “ beyond a reason able dou bt. ”
D ur ing vo ir di re, the following conversation oc curred between the Sta te and Williams: [STATE] : If you know something beyond all d oubt, how ca n you be

- - how can that be?

7 A defendant’s initial bur d en of es tabl ishing a prima facie case i s not difficult. Dewbe rry v. St a te , 776 S. W.2d 589 (Te x
. Crim. App. 1989 ) . To make a prima fa cie case, a defendant needs to show (1) that he i s a member of a cognizable raci al group, (2 ) t h at the State exercised pe r empto ry chal lenges to remove members of the defendant’s race f rom the jury panel , and (3) th at t he facts and any other relevant circ umstances raise an infer ence that the State used th e pe remptory ch allenges to excl ude panel me mbe r s based on their race. S a lazar v. Sta te , 818 S.W.2d 405, 407 (Te x. C r im. App. 199 1).15 VENIREPERSON WILLIAMS: You ha ve 10 0 percent pr oof , you
- - if it’s 100 per c ent all d oubt I ju st

- - I know that’s probably

- - the re’s n o doubt. Everyt hing I need to know is right there. [STATE]: Okay.
VENIRE P ERSON WILLIA MS: There’s no question. [STATE]: All right. Fair to say yo u’ d have to be there and see it?
VENIRE PERSON W IL LIAMS: T ha t I would have to be there to see it? [STATE]: Yes.
VENIREPERSON WILLIAMS: No, sir. [STATE]: That’s probably the easiest way to have something beyond all doubt.
VENIREPERSON WILLIA MS: O ne of the e asiest way s, yes, s ir. [S TATE]: Ok ay. A nd if yo u were there and you saw somet hing o ccur that would make you a what ?
VENIREPERSON WILLIAMS: That would make me a witness if I was there and I saw it occur. According to the Sta te, Wi lli am s ’s answer i ndicated that he be lieved t here wer e multip le

wa ys to prove something beyond all possib le doubt. “Thus by giving an answer that said there were ways (other than act u ally being a witness to the crime t h e m s e l v e s ) to prove something
be yond a ll po s sible doubt ,” Williams was “ li kely to hold the S tate t o a m uch higher level of proof than pe ople t hat unders tand t hat proof beyond all possible doubt is not possible without
be i ng a witness .” Because the law does not require the State to prove the a lle ga t ions agains t Brandon beyond al l possib le doubt , it bel iev ed Wi lliams would not be a good j ur or for the State

.16

Bra ndon argued that Williams’ s response “was very clear” that he u nderstood th e concept of “beyond all doubt” versus “beyond a reason able d oub t

. ” Brandon d id not discuss with
William s the co nc ept of th e Sta te’s burden of proof and did not ask him any additi onal questions

. In regard to this complaint, w hen the State w a s ask ed to present a race

- neutral reason for striking Williams, it r espond ed th a t it believ ed Williams might hold the State to a highe r bu rde n tha n was required

. T his is a race
- neutral explanation

. Finley v. State , 529 S.W.3d 198 , 20 6 (Tex . App

— Houston [14th Dist.] 2017, pet. ref’d )

. Brandon was required to convince the trial court that the reason given by t he St ate was

not ra ce
- neutral and was merely a prete xt for co ncealing discrimin a tion. Base d on Brandon’s
sol e respons e , and wit hout having delved into Williams’s understa nding of the State’s burden any further , w e cannot find that the trial court erred when it determined th at the State’s re ason

was not a pret ext for concealing dis c rimination but was , instead, race
- neut ral

. Next, t he St ate had an issue with Williams’ s answ er to a hypothe tical that was presented by defense counsel : Let’s just say s w ing dance competition, d an ce hall com petition. I know w e’v e got folks that go t o saloons. Okay? So let’s say we’re at a comp etition

. K elv in wins the $500 prize. I’m up set ab out that. So I come up to Kelvin and I say, “ Hey, man, congratulations but I nee d that money

. ” I nee d

- - Kelvin i s hesitant. Kelvin , a gain, “ I need that m o ney, man. Like I don’t want to have to stab yo u. I n ee d tha t money. ” Kelvin gives me the money. Now, is that aggravated robbery, if I never used or exhibited my, knife.
Wil liams answered, “That ’s

- - I would need more informat ion .” Counsel responds , “Okay. Yo u would need more informat ion. But just ba se d on that, if that’s what I proved w hat ha ppened, then yo ur verdict should be what? ” Williams said that, based on that , he would have to find t he
defendant not guilty. Then, cou nsel explain ed , “Oka y . And the reason that

- - th e reason why17

he’s c orrect, n o wea pon was ever used or exh ibited. Do y ou see what I m ean? You’ve got to have every ingredient of the recip e.”
A r gui ng that the State had a race
- neutr al reason for strik ing Williams , t he State
maintained that “it was some what conc erning wit h the q ui ck na ture and the f act that [William s]

was in agreement w ith the hypothetical that [defense counsel] brought out.” Acc o rdi ng to the State, the hy pothetical was premised on the th eory that having a d e adly weapon on your person

w as not en ough to co nstitut e “u se” of the weapon, even if you mad e thre ats to use the weapon. Expounding on its comment at trial, t he State contend s th at its intended trial s trategy was that
Brandon’s act ion s of implicitly thre a tening to h arm Varnell by gi ving he r a note tha t said he h ad
a gun would be sufficient evide nce to prove aggravat ed robbery, even without Brandon exhibiting the weapon. The S t ate ar gues, “ There is no th ing imprope r in using one of y our peremptory challeng e s to remove a potential veni reme mber who seems pre supp osed ag ainst your main theory of the case.”
In his brief , Brandon contends that Williams’s response to the hypothetica l wa s “hardly hasty” due to the fact t hat he stated that “[h e] would ‘ need more i nformation ’ ” before reaching a gui lty verdict. Brandon al so mainta ins that any other prospective juror who had disagr ee d with defense counsel’s hypothetical would have been sub jec t to the same challe n g e. For th ose

reasons , Bran don conc ludes that the Sta te’s ex planatio n was “implausible and prete xtual.”
The St ate contends that Brandon failed to preser ve this issue for ou r review. We agree.
The record shows that, as to this c omp laint, Brandon did n o t challenge th e St ate’s race

- neutral explanation at tr ial. E ve n if Brandon had not waived his complaint on appeal , it remai ns without
merit. The record reflects that, on the ba sis of Williams’s answer to defe nse counsel’s18

hypothet ica l , it was conceivab l e that he woul d have e xpected t he State to prove s omethin g th at it was not required to prove , that is, that Brandon actuall y exhibited a deadly weapon during the robbery. Becau se the record offers some support for the State’s race
- n eut r al reason for strik i n g Wi lliams o n th is basis, we cannot c onclude that the t rial co urt clearly erred when it denied
Brandon’s Batso n ch allenge

. The State also claimed that it was concern ed a bout Williams’s age, whic h was thirty

- five. Claiming th a t people in their twe n tie s and thi r ties usually hav e a slig htly more liberal view poi nt about illegal drugs, the State maintained t hat ju rors in their forties and fifties would be more beneficial to t he State. In response, Brando n argued that there we re t wo young , non
- Afr i can Amer i can wom en who had be en seated on the jury ; s pecifically , Alexa nder Sc hep leng, who was twenty

- four and
Breanna Robi nson , w hose age was not established

. According to Brandon, “[Y ] ou c an ’t say that
you ’re striking people be cau s e of their age and le t someone on beca us e of age.” The State expla ined tha t it would have us ed a pe rem ptory strike on Schepleng “but for her job , Texas Bank and Trust. She’s a teller, which is the exact same pro fe s sion as our vi ctim in this case.”
Bra n don does not direct u s to any c ase s, a nd neither h ave we found any , holding that
there is a p rohi bit ion against using a peremptory challenge t o exclude a potential juror based on their age. 8 Specifically, Brandon m aintains that t he State did not strik e t h e two young , non
A frican Ameri c an panel members wh o, according to the State’s t heory on age, would hav e b een les s f avorable jurors for the State than Will iams would have been

. Yet, the State gave a

8 In support of its position that i t was not barred from usi ng a peremp tory strike based on W illiam s’s age, t he State cites Camp b el l v . S tat e , 775 S.W. 2d 419, 422 (Tex. App.

— Hous ton [14 th Dist.] 19 89, pet

. ref’d). In that ca se, a s in this one , the St ate had reasons other than age to strike the particular panel mem be rs
.19

reasonable , race
- neutral e x planation as to why i t c h ose not to use a pere m ptor y stri k e o n Schepleng , i.e. , that she w as employed as a bank teller and v ery lik ely wou ld have been

e specially concern ed with crimes occurr ing in banks and crimes that directly involve d
individuals wo r k ing in her specific p osi t ion. Consequently, s h e would have b een a satisfactory juror for the State.
On th e other hand, the record i s un cle ar as to Robi nson’s age or whether the State had an additional reason to keep her on the jury

. However , Brandon’ s complaint was based e nti r ely on the fact that, if the State ’ s ex planation conce rning Wil l iams’s age was race
- neutra l, the Sta te
would have us ed a perempt ory strike against Robinson. “‘Disparat e treatment,’ as such , cannot automatically be imputed in eve r y situation where one of t he State’s reasons fo r striking a

v e nir e person would t echnical ly apply to another v enire person who m the State fou nd acceptable.”
Cantu v. State , 842 S.W.2d 667, 689 (T ex. Crim. App. 1992)

. That said, b ecause the trial court was i n the best position t o d e termine if the State’ s concern abo u t Wi lliams ’s age wa s genui ne, and because we giv e a high degree of deferen ce t o
t he trial cou rt’s decisi on in th at regard , we cannot conclude that the trial court ’s denial of
Brandon’s Batson ch a l lenge was clearly err one o us
. At trial, t he State que stione d th e panel m embers a s to whether the y had any family
memb ers or clos e fr ien d s who had h ad “signi ficant criminal troubles .” Wil liams indicated that , when he was young, his uncle had been “ in and out of jail a l ot. ” When asked if he cou l d be fair

an d impa r tia l, Willia ms respon d ed, “I can be fair a nd impartial, ye s, sir.”
The State contends that , bas ed on his brother’s cr imi n al history, Williams c o uld have
bee n unfa irly bias ed i n favor of Brandon. Texas cou rts have held tha t a strik e of a prospective20

ju ror on the bas i s that he or she has a family member or close friend who has been arrested, charged, o r convicted of a cri me i s r ace
- neutral. See M u rray v. Stat e , 861 S.W.2d 47, 5 2 (Tex. Ap p.

— Texarkana 1993, p et. ref’d); Garci a v. Stat e , 8 33 S.W.2d 564, 56 7 ( Tex

. App.

— Dallas 1992), aff’d on ot her grounds , 868 S.W.2d 337 (Tex. Crim. App. 1993); Sims v. S ta te , 76 8 S.W.2d 863, 865 (Tex. A pp.

— Texarkana 1 9 89), pet. di sm’d p er curiam by 792 S.W.2d 81 (Tex. Crim. App. 1990). Yet, Bra ndon main tain s t hat other non

- Afr ica n American p anel members stated that they h ad family members with criminal histories, bu t the State did no t us e p e remptory
strike s again s t them

. Fi rst, Brando n points to Bradfor d Laster, a no n
- African American panel member who had
been in jail or o n co mm u nity supe rvision “ [ a ] whi le back

. ” Laster also expl ained that his brother
h ad be en in trouble wit h the la w
. Bra nd on claims Last e r indicated that he did not believe his
brother had been t reated fairly

. 9 According to Brand on, “[O]ne would have been p er ce i ved by
th e State as a mor e objectionable juror than Williams.” Yet, Las ter also stated that he could p ut

a side his feelings in r e gard to his brother’s treatm ent and be a fair a nd imparti al juror if he was
selecte d to sit o n the jury.
T he State a r g ue s t hat it had a nother reaso n for not using a peremptory strike against
Laster. 10 Dur ing jury selection, w h en d efens e c ounsel address e d the intent element of poss ession
of a control led substa nce with intent to deliver , in parti cular, the difference betw e e n “p e rsona l
use” a nd “dealer use , ” Laster explained , “Wel l, you know, if you’ve got a little small bag of do p e

9 Bra ndon contends Laster s aid hi s b r other was not treated fai r ly

. When a ske d if he thought his brother had bee n treated fairly, L aster r e sponded, “ Huh

- uh.” Wheth e r t hat is a negative answer is questionable.

10 According to the State and th e recor d, the St ate struck seven other pan el mem ber s who had family or friend s wi th a crim ina l h istory.21

t hen t hat ’s going to be personal. I f you’ve got a b ig bag of dope, you’ re probabl y going to be selling some of it.”
First , “ ‘ [ d ] isparate t re a t me n t,’ a s such, cannot automa tically be imputed in ever y situation
where one of the State’s reasons for st rik i ng a ven ire person woul d technically apply to anothe r venire person whom t he State f ound acceptable.” Can tu , 842 S.W.2d at 689. In additio n , t he
Sta te had a reasonable exp lanation as to why it did not use a peremptory strike a gainst Laster.
Becaus e t h e Sta te planned t o rel y on the amou nt of drugs foun d in Brandon’s car to prove the
intent element of one of the char ged crime s , Laster’s answe r g a ve the State a good reason to ke ep him on the jury

. Brand on also complains t hat the State did not strike Ro ber t E lley , a non
- Afri c an American panel member who i ndicated that he had a criminal his tory

. Aga in , “‘ [ d] isparate treatment,’ a s s uch, cannot au tomatica lly be i mpu t ed in every situation where on e of the State’s

reas ons for striking a venire person wo uld technically apply to a n o t her venire p erson whom the
Sta te found acceptable.” Id

. That said, rega rdless of his pas t , Elley state d tha t he could be a fair

a nd i mpar tia l juror. Notably, w hen asked if he believed he had bee n treated fairly by law
enforce men t , Elley responded , “ [I t w as a] lon g time ago. In retr ospect, yes.” On th at bas i s , the
State cou ld have reasonably believed tha t Ell ey would be an accepta ble juro r f or the State or , at the very least, would not have b een adverse to it

. The Sta te had at l east four concerns reg arding whe ther Willi ams would be a suitable juror
in this case. An d, although Brandon compar ed Schepleng, Robins on, L aste r, and Ell ey to Williams, t he State ha d only two concerns as to o ne or two of th em, and o nly one concern or no concern at all, as to t he remaini ng individ uals. It is n ot surprising that the State woul d choose to22

strike William s based on multiple reaso ns , ra ther tha n the other indiv id uals o f w h ich it had fewer

concerns
. T hat fact dim ini shes B randon’s arguments som ewhat and weighs in f a v or of the trial

cou rt’s finding t h at the State did not strike Willi ams on the basis of race b ut, instead, on several

r ace
- ne utra l re asons.
T he trial cou rt f

ound that the State’s r e a sons for st riking Williams we re racially neutral
and that the strike aga inst him was not motivated by a desi re to eliminate a particul ar r aci al group from service on the jury. B ecause the tria l co urt was in the best position t o d e termine the veracity o f t he State’s ex planation s , a nd because we give a high degree of deference to the trial
court’s decision i n reg ard to Batson challenges , we c ann ot conclude that the trial co urt’s denial
of Brandon ’s B atson ch allenge regarding Will iam s was clearly erroneous

2
. La tanya Sammons Brandon also complains that the State st ruck Sammo ns, another African American panel
member , on the basis of race

. During ju ry s e l e ction , Sammons stated th at her broth er had a

cr imina l h istory that i nvo l ved a drug offense

. In r esponse to B r an don ’s Batson challenge, the State explained, And, my investigat or pointed out I should probably h ave str uck [Sa mmons] for cause. When sh e wa s t alking about her brother I believe a nd his drug usag e a nd whether sh e c a n be unbi ased, for some r eason I didn ’ t wri te down for cause, but she said that she could not be fair a nd imparti al based on that prior i nteract ion. T hat

- - and I asked the que stio n i n a weird manner, and I gue ss out of an abundan ce of ca ution, you kn ow, so the f act that she cou l dn’t put her fa mil y’s drug use behind her. And we’ve also struck quite a few others for that exact reason.
B randon ’ s couns el did not respond to the Stat e ’ s reasoning but, instead, sa id, “Judg e, if I may just go back to [ano the r panel member] .” The tr i al court tol d c oun sel to “[g]o ahead.” Counsel23

did, however, address the Stat e’s strike against Sammons a few m inutes later b y informing the
trial cour t th a t Sammons said she could be an imparti al juror , n ot th at she could not be one. Other than that, B r andon made n o f urt her argument in regard to Sammons

. On appeal, t he State c oncedes th at, in fact, Sammons had said sh e could be a fair and impartial j uror de spite her brother’s crimina l history

. Citing G reer v. State , 310 S. W.3 d 11 (Tex. App.

— Dallas 20 0 9, no pet

. ), Br and on contends , “[W]hen the State’s explanation for striking a juror is c learly contrary to the e vidence,

. . . there is no innocent mist ake, ” a nd the appellate court

must rev erse the trial c ourt for “ Batson erro r.” See i d

. at 16

. Citing J ohnson v. St a te , 0 6

- 98

- 00279

- CR , 1999 WL 409385 , at *1 (Tex. App.

— Texarkana June 22, 1999 , no p et.) (mem. op.,

n ot designated f

or publication) , t he Stat e ar gue s that “ a peremptory challenge moti v ated by an
hones t, racially neut ral reason, although a mista k en one, is n o t rac ially motivated.” 11 See i d

. ; see also Salinas v. State , 888 S.W.2d 93 , 98 (Tex. A pp.

— Corpus Ch risti 1994, pe t. re f’d); Jack v.
S tate , 867 S.W .2d 942 , 9 47 (Tex. App.

— Beaumont 199 3, no pet.)

. We nee d no t address Br a ndon’s complaint regardi n g the State’ s e xpl anation because, as
the State points out, it had race
- neutral reason s for stri king Sammons. F irst, the Stat e argued that
Sammons hesi tate d b efore s he committed that she c ould b e a fair an d imp art ial juror. A cco r ding to the State, Brand o n conceded t h at Sa mmons hesitated when answering the question. The
record shows that Br andon’s co unsel stated, “Bu t

- - becaus e th ere was some hesitancy whe n [ he]
asked about her

- - somebody

- - I t hink it w as her b rother and hi m b e ing charged with a crime

.

11 Without a ddress ing th e issue any further, th e re co rd show s t hat there may ha ve been some dif f iculty hea ring Sammo n s ’ s ans wer.24

But she di d sa y she could be fair.” The State contends that this reason, alone, was e nough to

s tri ke Sammons from the jury.
I n a ddition, Sammons st ated th at her br other had been involved in a drug offe nse that happened to be simil ar to two of the four offen ses of which B r and on had been charged

. Texas
courts ha ve h eld that a strike of a p r ospective ju r o r on the basis that he or she has a family
member or close friend who has been arres ted, charged, or c onvicted o f a cri me is race
- neutral.
Mu rra y , 861 S. W.2d at 52 ; Garcia , 833 S.W .2 d at 567 ; Si ms , 763 S.W.2d at 865

. The Sta te also points out that it used thr e e of its four peremptory strikes ag a inst othe r panel members who
stated t h a t they had family or friends who had some type of criminal history.
O n this rec ord, the trial co urt could have rea sonably concluded that the St ate’s r ace
neutral explanation s w er e genuine and t hat the peremp tor y s t rike against Sammons w as n ot

ra cially mo ti vated. As a result , we fin d no clear error in the trial court’s deni al of Bran don’s
Batson chal lenge as to Sa mmons.
We , therefore, ove rrul e B randon’s third point of erro r. IV . The Trial Co urt Erred by Asse ssi n g Duplicative Court Costs
Next , Brand on c ontends that the tr ial cour t erred by assessing court costs in both the judgment in this cause t hat resulted f rom B randon ’ s convictio n o f ag gra vated robbery and the judgm ent of conviction on a ppeal in cause nu mbe r 06

- 21

- 00086

- CR.
“If t h e p u n ishment is any other than a fi ne, the j udgment shall specify it, and order it enforced by the proper proces s. It shall a lso ad judge the costs agai n st the defendant, and order
the co llection thereof as in other c ases. ” T E X

. C ODE C RIM

. P ROC

. A NN

. art

. 42

. 1 6 (appl icab le25

when punishment is anyt hi ng other than a fine ); Joh nson v. State , 423 S.W.3d 385, 389 (Tex.
C rim. App. 2014 ). Article 102.073 of the Tex as Code of Criminal Procedure p rovides:

(a) In a sing le crimi nal actio n i n which a defendant is con v ict e d of two or more offenses or of multi p le counts of the same offens e, the court may assess each court cost or fee only once against the defendant. ( b ) I n a criminal action described b y Subsection (a), each court c ost or fe e t h e amount of which is dete r min e d accord ing to the category of offens e m ust be assessed using the highest category of offense that is possib le based on th e defendant’s convictions. ( c) This article does not apply to a single criminal a ction al leging on l y t he commission of two or m o re o f fenses puni shable by fine only

. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 102.073

. Simply stated, when a d efen dant is convicted o f two
or more offenses in a si ngl e criminal action, 12 the tria l court must assess ea ch c ourt co st or fee only once against the def e ndant

. S ee T EX

. C OD E C RIM

. P ROC

. A NN

. art. 102.073(a); s ee also
Cain v. State , 525 S .W.3d 728, 733

– 34 (Tex. App

. — Houston [14 t h Dist. 2017, pet. ref’d) (tri al

court err ed in assessing “ id entical overlapping” o r duplicative cos ts a ga inst defen dant) . When a tria l court err o n eously assesses d uplicativ e court cost s for multiple convictions t ried in a single
criminal ac tion, we retai n court costs for the offe nse of the high est category

. 13 T E X

. C ODE C RIM

. P ROC

. A NN

. art. 102.073(b).
H er e, because Brandon was c onvic ted of two or more offenses in a single criminal act ion,
the trial court could o rder payment of court costs only once. S ee T EX

. C ODE C RIM

. P ROC

. A NN

.

12 “ In a si ngle crimi na l action” has been construed to mean allegations and evid ence of two or mor e offen ses that are presented in a singl e tr i a l o r plea proceeding. See Hu r lbu rt v. Sta te , 50 6 S.W. 3d 199, 201

– 03 (Tex. App.

— Waco 2016, no pet.) . Here, there i s no dis pute that th e two separate cases against Br andon were tried in a single criminal action.

13 Brando n was convicted of a first

- degr e e o f fense in each case

— aggrava ted r ob b e ry and p oss ession of a cont rolled substance with intent to delive r.26

art . 102.073 (a); Cain , 525 S .W. 3d at 733

– 34. The Sta te agrees that Br and o n should not be
assessed c ourt costs i n bo th causes, but it d isputes B randon’s cont ention that the fees and court

costs should be deleted from the judgm ent on appeal in cause num ber 06

- 21

- 00085

- CR rathe r than the jud gment at issue in this ca use. We ag ree with the State.
The rec o rd sh ows tha t Brandon was assessed fees and costs in the amount of $ 330.00 as a

r esult of the aggravate d r obbery conviction. In regard to Brandon ’ s con viction of possession of a
controll ed su bstance with intent to deliv er , th e t r ial court assessed fees a n d cos ts in t he a mount of $3 90.00. The State is entitled to all properly assessed fees and costs, but it m ay not re cover duplicative costs. Because the trial court assessed a higher a mou nt of fees and cou rt costs for the
poss ess i on of a controlled sub sta n ce wi th inte nt to deliver convic tio n, the St ate was entitled to $390 .00 in court costs. As a result , we m us t de lete the $330.00 fees and costs from the judgme nt
of conviction at issue in this appeal and from the associated bi ll o f costs. Accordingly, we susta in Bran don ’ s four th point of e rror. V . The Trial Court Erred When I t Cum ulated the Fines
In his fifth p o i nt of error, Brand on contend s that the trial court e rred wh en it or dered f ines
in each of his four convict ions bu t d i d not order the fines to r un co ncurren tly. 14
I n its judgment of convi ction of aggravated r ob bery, the trial court ordered Brandon to
pa y a fine of $10,000.00. It also or der e d B randon to pay (1) a $10,000.0 0 fine on his convict ion of possession of a c ont r olled substance wi th inte n t to deliver (referred to as Count I), (2) a $5, 000.00 fine on h is conviction of possession of a controlled s ub s t ance (referred to as Count II) , and (3) a $10 ,000.0 0 fin e on his convictio n of unlawful possession of a firearm b y a felon

14 The State did not respond to th is issue.27

(referre d to as Cou n t III ). 15 Al though the trial court ordered h is sentences to run concurrently, it
did not order the fines to r un c oncurrently.
The T exas Penal Code req uires senten ces f or offen ses arisin g out o f the s ame criminal
ep isode that ar e prosecuted in a single c r imina l actio n to be served concurre ntly. T E X

. P ENAL
C ODE A NN . § 3.03(a). When a trial court orders sentence s t o run concurrently, t he judgmen t
should not re flect a cum ulated f ine. See State v . Crook , 248 S.W.3d 17 2, 177 (Te x. C rim. App.
2008 ) (holding t hat t he conc urrent sentence provisi on in Sec tion 3.03 applies to the entire sentence, including fines ); see a ls o Habib v. State , 431 S.W.3d 737 , 742 (Te x. App

. — Amar illo 2014, pe t. ref’d) (deleti ng cumu lat e d fine from the secon d j u dgment).
Acc ordingly, w e del ete the following fines from t he judgme nt of conviction and the
clerk’s bill of costs at issu e in ou r ca us e number 06

- 21

- 000 86

- CR : the $10,000.00 fine

ass ociated w ith B randon’s conv iction of posse ssion of a controlled su bst a nce with intent to
distri b ute ( Count I ) , the $5,000.00 fine a ssociated with Brandon’s conviction of possession of a

c ontrolled subs tance ( C ount II) , and the $10, 000.00 fine assoc iated wi th Brando n’s c onviction of unlawful p osses sion of a firearm by a f elo n (Count III)

. 16 The fine o f $10 ,000.00 associated with
Brando n’s convi ction of aggrava ted robbery at issue in this appeal remains i n the j u dgment of
conviction and in th e clerk’s bill of costs

. A s a result , we sustain B randon’s f ifth point of error

.

15 Th ese three convictions were tried in cause numb e r 47992

- A and a ppealed in our cause number 06

- 21

- 000 86

- CR

.
16 We also addr ess this iss ue in o ur cause nu mber 06

- 21

- 00 086

- C R.28

VI . The Tr ial Court Erred by Asses sing Ti me Payment Fees
In his sixth poi nt of error, Brandon ma intain s that the tria l court erred when it as sess ed time paymen t fees in this case

. We agree.
The T exas Court of Crimin al Appeals has recently concluded that a t i me paym ent fee like
the o n e imp osed in th is case “must i ndeed be struc k for being prematurely asses se d because a
d efendant ’ s appeal suspen ds t he duty to pay court costs and there fore suspends t he running of the
cl ock for the purposes of the time paymen t f e e.” Du lin v. State , 620 S .W.3d 129, 1 29 (Tex. Crim. App

. 202 1). “As a con sequence, even now , asse ss ment of the t ime payment fee in this

case would be prem a ture because appellat e proceedings a re still pending.” Id

. The State concedes this point. 17
H ere , Brando n asks this Court t o str ike “th e $ 15 time payment fee (incl uded as part of the
total c osts)

. ” The time payment fee in the amount o f $15.00 wa s included as a part of the $ 330 .00 court costs assessed against Brandon in this matter

. As previously di s cussed, we have
deleted t h e cou rt cost s in Brando n’s j udg ment of convi ction and from the bill of c osts associated

w ith that conviction

. T he assessed time payment fee wa s included in the dele ted court cos ts. Accordingly, we sustain Brandon’s si x th point of error.
VII. B r andon ’s Plea to Enhan cemen t P aragra phs
We have the au thority to mod ify the judgment to make the record speak the truth, e ven if a party does not raise t he issue. T EX

. R. A PP

. P. 43.2(b); French v. State , 8 30 S.W .2d 607 , 6 09 ( Tex

. C rim. App. 199 2 ) . “Our a uthor ity to refo rm in corre ct judgme nts i s not depend e nt on the

17 Brandon also a rgues that the ti me payment fee statute is unconsti tuti onal. Be cause we have found that the assessment of the time pay ment fee w as premature, we decline to address th at a rgu m ent.29

requ est of any party, no r does it turn on a quest ion of wh ether a party has or has not ob jected in [ the ] trial court; we may act sua sponte and may h ave a duty to do s o. ” R hoten v. State , 299
S.W.3 d 349, 356 (Tex. App.

— Te xarkan a 2009 , no pet.) ( citing Asberry v. S tat e , 813 S.W.2d
526 , 531 (Tex. App.

— Dallas 1 991, pet. ref’d)).
Here , the trial court ’s judgment erroneously reflects th at Brandon pled “ not true ” to the
S tate ’s e nh ance ment paragraph. In fact, he ple d “ t rue ” to th e a llegat ion. Where t here is no
reversib le error, we have th e authority to modify jud gments an d affirm , as modified. Walker v. State , 557 S.W.3d 678, 690 (Tex. App.

— Texarkana 2018, pet . ref’d). We mod i fy the trial
court’s judg m ent b y chang ing Brand on’s ple a of n ot true to th e State’s enhance ment paragraph to

a plea of true.
V II I. Con clusion
F or the reasons above , we modify the judgment of conviction and the bill of costs by
dele ting the $330 .00 ass e ssment of court cost s, an d we m odify t he judgment of conviction b y changing th e notation of Brandon ’s plea to the State ’s enhancement alle gatio n from not true to

true. As modifi ed, w e affirm the tr ial court’s judgment.

Scott E. Stevens Justice
Dat e Submitted: April 5 , 2022 Date Dec ide d : June 2 2 , 2022
Do N ot P ublish