In the

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-23-00026-CR

JAVIER MARTINEZ GARCIA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law

Bowie County, Texas

Trial Court No. 22M1063CCL

Before Stevens, C.J., van Cleef and Rambin, JJ.

Memorandum Opinion by Justice Rambin
2

MEMORANDUM OPINION

Javier Martinez Garcia pled guilty to the offense of driving while intoxicated (DWI) with 

an alcohol concentration level greater than or equal to 0.15, a class A misdemeanor.1 The trial 

court sentenced Garcia to a term of 365 days in the county jail, suspended in favor of eighteen 

months’ community supervision. Among other fees and a $2,000.00 fine, the trial court imposed 

a DWI traffic fine of $6,000.00.

2

In the trial court, Garcia objected to the imposition of the DWI traffic fine on the basis 

that it violates the Separation of Powers Clause of the Texas Constitution and removes from the 

prosecution the ability to negotiate and determine the amount of fine in a given case. Garcia 

1TEX. PENAL CODE ANN. § 49.04(d) (Supp.).

2Section 709.001 of the Texas Transportation Code provides for the imposition of a fine on conviction of certain 

DWI offenses. It provides, in pertinent part:

(a) In this section, “offense relating to the operating of a motor vehicle while intoxicated” 

has the meaning assigned by Section 49.09, Penal Code.

(b) Except as provided by Subsection (c), in addition to the fine prescribed for the specific 

offense, a person who has been finally convicted of an offense relating to the operating of a motor 

vehicle while intoxicated shall pay a fine of:

(1) $3,000 for the first conviction within a 36-month period;

(2) $4,500 for a second or subsequent conviction within a 36-month period; and

(3) $6,000 for a first or subsequent conviction if it is shown on the trial of the 

offense that an analysis of a specimen of the person’s blood, breath, or urine showed an 

alcohol concentration level of 0.15 or more at the time the analysis was performed.

(c) If the court having jurisdiction over an offense that is the basis for a fine imposed under 

this section makes a finding that the person is indigent, the court shall waive all fines and costs 

imposed on the person under this section.

TEX. TRANSP. CODE ANN. § 709.001.
3

further complained that the fine did not apply to him because he had not been finally convicted. 

The trial court overruled each of Garcia’s objections.

For each of the reasons asserted in the trial court, Garcia asks this Court to conclude that 

the DWI traffic fine should be deleted from the judgment. The State has filed a brief in which it

agrees with each of Garcia’s points of error and prays that this Court modify the judgment by 

deleting the DWI traffic fine. 

We modify the judgment—not the sentence—by deleting the $6,000.00 DWI traffic fine. 

We affirm the judgment, as modified.3 

Jeff Rambin

Justice

Date Submitted: July 17, 2023

Date Decided: July 18, 2023

Do Not Publish

3Because both parties agree that the DWI traffic fine should be deleted from the judgment, we need not address the 

merits of their arguments. Even so, we observe that the record in this case reflects that Garcia is indigent. That 

issue was not raised in the trial court or in this Court.