## In t he

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 Rambin2 

### ME MORANDUM OPINION

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

a n alcohol con centration level greater than or equal t o 0.15

, a class A misdemeanor. 1 The trial

cou rt sentenced Garcia to a term of 365 days in the county jail

, suspende d in favor of eighteen

month s ’ 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 S eparation of P owers C lause of the Tex as Constitution and removes from the

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

1 T EX

. P ENAL C ODE A NN

. § 49.04(d) ( Supp

. )

.

2 Se ction 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 rela ting to the operating of a motor v ehicl e while intox icated”

has the meaning assigned by Section 49.09, Penal C ode.

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

offense, a person who has been finally convict ed of an offense relating to the o perat ing of a moto r 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 convicti on 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 jurisdictio n over an offe nse that is t he basis for a fine imposed under

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

imposed on the person under this section.

T EX

. T RANSP

. C ODE A NN . § 709.00 1.3

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

The trial court overruled e ach of Garcia’s objections.

For each of the reasons asserted i n the tri al court, Garcia as ks this Court to conclude that

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

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

dele ting the DWI traffic fine.

W e m odif

y 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 , 202 3

Do Not Publish

3 Because both part ies agree that the DWI traf fic 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 wa s not raised in t he trial court or in this Court

.