## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00183

- CR

ENRIQUE AKIL DIAZ , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the County Court at Law Harrison County, Texas Trial Court No. 2023

- 0090

Be fore Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice van Cleef2 

### ME MORANDUM OPINION

E nrique Akil Diaz was convicted by a Harrison County jury of d riving while intoxicated
and assessed a sentence of 180 days in jail

. The trial c ourt’s written judgment also assessed Diaz

court

- appointed attorney fee s of $450.00 and court costs of $420.00

. On a ppeal, Diaz co mplains that (1) the information contained fundamental error because it was not signed by the district attorney , (2) insuffic ient evidence supported the assessment of attorney fees, (3) the judgment
assessed costs that are no longer authorized, and (4) the judgment should be modified to reflect Diaz’s plea of not guilty

. W e find that Dia z forfe ited his complaint re garding a def ect i n the
information . Howeve r , because insufficient evidence supported the assessment of attorney fees
and the judgment assessed an unauthorized cost and incorrectly stated Diaz’s plea, we will modify the judgment and bill of costs as necessary and affi rm t he tr ial court’s judgment , as modified

. I. Diaz Forfeited His Complaint Regar ding a Defect in the Information
The information in this case cha rged Diaz with DWI on May 10, 2021

. 1 Although the
in formation reci ted that it was brought by “ JAMES WOOD R ING , As sistant Criminal District Attorney of Harrison County, Texas ,” it was not signed by either the district or county attorney

. Dia z asserts that , because the information lacked the signature of the di strict attor ney , it
contained funda menta l erro r that depri ved the trial court of jurisdiction.
The Texa s Constitution provides , (b) An indictment is a written instrument presented to a court by a grand jury charging a person wit h the c ommission of an offense. An information is a wr itten

1 See T EX

. P ENAL C ODE A NN

. § 49.0 1 (2)(A) , § 49. 04 ( a), (b) (Supp.)

.3

instrum ent presented t o a court by an attorney for the State charg ing a person with the commission of an offense. The practice and procedures relating to the use of indictments and informations, includin g their contents, amend ment, sufficiency, and requis ites, a re as provided by law. The presentment of an indictment or i nformation to a court invests the court with jurisdiction of the cause.
T EX

. C ONST . art. V , § 12 (b)

. Regarding the contents o f an infor mation, the Texas Code of
Criminal Procedure provid es , among other things , that “[i]t must be signed by the district or county attorney, officially.” T EX

. C ODE C RIM

. P ROC

. A NN

. art. 21.21 (9).
Under Article V, Section 12(b) , “ to vest the court with both personal an d subject [

- ] matter jurisd iction, the indictment [ or infor mation] must (1) charge a p erson, and it must (2) charge the
commission of an offense. ” Jenkins v. State , 592 S.W.3d 894, 898 (Tex. Crim. App. 2018) (citing T EX

. C ONST . art. V, § 12 (b)). F urther , “ th e mere presentment of t he indi ctment or
inform ation, ra ther th an the substance of the indictment, confers jurisdiction on the trial court. ”
Walker v. State , 594 S.W.3d 330, 339 (Tex. Crim. App. 2020) (citing T EX

. C ONST . art. V, § 12 )

. Diaz does not c onten d that the information did not charge him or t hat it di d not c harge the
commission of an offense. He also does not assert that the information was not presented to the
trial court. Rather, he only contends that the information is defective because i t did not meet the requisites of Article 21.21 when it f ailed to in clude the signature of the district or county attorney. However, pur suant to the Texas Code of Criminal Procedure , I f the defendant does not object to a defect, error, or irr egularity of form or substan ce in an indic tment or informat ion before the date on wh ich the trial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity and he may not raise the objection on appeal or in a ny other postconv iction proc eeding.4

T EX

. C ODE C RIM

. P ROC

. A NN

. art. 1.14 (b). B eca use Diaz did not assert that the information failed to satisfy the constitutional requirement , he was required to “ make a pretrial objection to a [form or ] substance defect in the information

. . . or for feit the righ t to complain abo ut it on appeal

. ” Smith v. State , 309 S.W.3d 10, 18 (Tex. Crim. App. 2010) (citing Studer v. State , 799 S.W.2d 263, 271 (Tex. Crim. App. 1990) )

. The record in this case does n ot show that Diaz asserted any pretrial complaint that the
info rmation was d efec tive beca use it la c ked th e signature of the district or county attorney

. As a result, he has forfeited his r ight to raise this complaint on appeal. Id

. ; T EX

. C ODE C RIM

. P R OC

. A NN

. art. 1.14(b).
II. Insufficient Evidence Supported t he Asses sment of Attorney Fees
In its wr itt e n judg ment, the trial court assessed Diaz $450.00 for his court

- appointed attorney fees , and the clerk’s cert ifi e d bill of costs include s a char ge for $450.00 for attorney
fees

. Diaz a sserts in h is first i ssue that there was insufficien t evi d ence to supp o r t the asse ssment
of those attorney fees and asks that those fees be deleted from the judgment

. 2 The State agrees th at the trial court erred when it assessed the attorney fees and that they s hould be deleted.
Article 26.05(g) of the Texas C ode of Crimina l Procedur e authorizes the trial court to
order the reimbursement of the fees of court

- appointed counsel only “[i]f the judge determines
that a defendant has financial resources that enable [hi m] to offset in part or in whole the costs of the lega l service s prov ided

. . . , including any expen ses and costs.” T EX . C ODE C RIM . P ROC

. A NN . art. 26.05(g) (Supp.). “[T]he defendant ’ s financial resources and ability to pay are explicit

2 W e are aut h orized to modify a judgment “to make the record speak the truth when the matter has been called to [our] atte ntion by any source .” French v. State , 830 S.W.2d 607, 609 (Tex. Cr im. App. 1992).5

cr itical elements in th e trial court ’ s determination of the propriety o f orderi n g re imbursement of costs and fees” of legal services provided. Armstrong v. State , 340 S.W.3d 759, 765

– 6 6 (Tex. Crim. App. 2011) (alteration in original) (quoting Mayer v. Stat e , 309 S.W.3d 552, 556 (Tex. Crim. App. 2010)). Also , “[a] defendant who is d e term ined by the court to be indigent is presumed to remain indigent for the remainder of the proceeding s in the case unless a material change in the defendant ’ s finan cial circumstances occurs.” M aye r v. State , 309 S.W.3d 552 , 557 (Tex. Crim. App. 2 010) ( a lteration in ori ginal) (quoting T EX . C ODE C RIM . P ROC . A NN . art.
26.0 4 ( p) )

. The record shows that the tr ia l court determined that Diaz was indigent and that he was
ap pointed counsel both at trial and on appeal. Because the trial court found Diaz in digent d uring
the trial proceedings, he was “presumed to remain indigent absent proof of a material change in h[is] circumstances.” Walker v. State , 557 S.W.3d 678, 689 (Tex. App.

— Tex arkana 2018, pet.
ref ’ d); see T EX . C ODE C RIM

. P ROC . A NN . art. 26.04(p ) (Supp.), art. 26.05(g). Since there is no
evidence in the record of a material change in Diaz’s circums tances , we find that the trial court
erred when it assessed court

- appointed attorney fees. We sustain thi s issue

. As a result, we will
d e lete t he attorney fee a ssessment from the judgment and the bill of costs.
III. Other M odifications to the Judgment and Bill of Costs
In his second issu e, Diaz challenge s some of the costs assessed in the trial court’s judgment a nd bill of costs and as s erts t hat the y were eith er no t authorized by statute when Diaz6

committed the offense or not supported by the record

. As to the costs tha t were no t authori zed by statute, the State agrees with his analysis. 3 “Only st atutorily authorized cou r t costs may be assessed against a criminal defendant.”
Johnson v. State , 423 S.W.3d 385, 389 (Tex. Crim. App. 2014) (citing T EX . C ODE C RIM . P ROC

. A NN . art . 103.002). On appeal, “we review the assessment of court co sts .

. . to de t ermine if
there is a bas i s for the cos t.” Id

. at 390. We examine the record to determine whether the trial

cour t was authorized to assess the chal lenged costs against Diaz.
Diaz c ontends that the following costs designated in the bill of costs were not a uthorized
to be assessed agains t him : Fee Descri ption Charges Cle rk of the Court Account $40.00 County Court T echnology $4.00 County Jury Fund $ 1.00 County Records Mgmt $25.00 County Specialty Court Account $20.00 Court Repo rter Service Fund $3.00 Courthouse Security Fund $10.00 Prose cutors Fees $ 2 0.00
The cost s tota l $123.00 for these eight accounts and f unds

. Diaz points out that , although these

costs were author ized to be assessed against persons convic ted of an offense committed befor e
Janu ary 1, 2020, they are not a uthor ized to be assessed against person s, such as him, convicted of

an o ffense committed on or after January 1, 202 0. We agree that the Texas Legis lature repealed those portions of the prio r statutes that authorized the as se ssme nt of the specific cost am o unts for

3 “ We, o f course, are not bound b y any agreement or co ncession s by th e parties on an issue of l aw. ” Oliva v. State , 548 S.W.3d 518, 520 (Tex. Crim. App. 2018) (citing Rhode s v. State , 240 S.W.3d 882, 885 n.3 (Tex. Crim. App. 2007) )

.7

eac h of these c ost categories fo r persons convicted of offenses committed on or after January 1,
2020. Se e Act of May 23 , 2019, 86 th Leg., R.S., ch

. 1352 , § § 1.0 7, 1.08 , 1.19 (2) , (3), (4), (6) , 5.01, 5.04 , 2019 Tex. Gen . Laws 3981 , 3988

– 89, 3992 , 4035

. How ever, in th at same a ct, the L egislature a dded Section 134.102 to the Texas Local
G overnment Code, which authorized a local consolidated fee in the amount of $1 23.00 to be

assesse d against “[a] person convicted of a C l ass A or Cla ss B misdemeanor” co mmitt ed on or after January 1, 2020. See Act of May 2 3 , 2019, 86 th Leg., R.S., ch

. 1352, § 1.0 5 , sec. 134.1 02(a) , 2019 Tex. Gen. Laws 3981 , 3985 (amen d ed 2023) (current version at T EX

. L OC

. G OV ’ T C ODE § 134.102 ). That stat ute d irect s the county treasu rer to allocate th e court cost s collect ed under Section 1 34.102 to the same eight accounts and funds listed above “so that each

r eceives to th e extent practicable . . . the sa me amount of money the account or fund w o u ld have
received if the cour t co sts for the accounts and funds had been collec ted and reported

s epa rately.” Act of May 2 3 , 2019, 86 th Leg., R.S., ch. 1352, § 1.0 5 , sec. 134.102(b), 2019 Tex.
Ge n. Laws 39 81 , 3985 (amended 2023)

. As a result, the trial cou rt was authorized to assess a loc al co ns olidate d fee of $123.00,
which w ill be allocated to the eight accounts and funds listed above. However , because the bill
of cost inco rrectly designated these costs separately, we will mo dify the bill of costs by del eting
the costs for each of these indi vi dual accounts and fund s and by adding a “Local Cons olidated
F ee” of $1 23.00. Because the amo unt of th e consolidate d fee is equal to the total amount of the
individual costs charged, the trial court’s judgment wil l n ot be affected by this change.8

Diaz al so challenges the assessment of $10.00 for “CRIME STOPPER FUND ,” a s sho wn in the bill of costs . Under the applicable law , t here was no statutory authorization for the assessment of a sep arate cost charg e for a Cri me Stoppers Fund. Rather , the tria l cou rt wa s authorized to assess $147.00 again st a person , such as Dia z, convic ted of a c lass A or c la ss B
misdemeanor. See Act of May 23 , 2019, 86 th Leg., R.S., ch. 1352, § 1.0 3 , sec. 13 3 .102(a), 2019 Tex. Gen. Laws 3982, 398 2

– 83 (amen ded 2023) (current version at T EX

. L OC

. G OV ’ T C ODE § 13 3 .102). U nd er th at st atute, a portion of t he money collected was alloc ated to a “crime stoppers assistance account.” Act of May 23 , 2019, 86 th Leg., R.S., ch. 1352, § 1.03, sec.
133.102 ( c ), (e)(1), 2019 Tex. Gen. Laws 3981 , 3 9 82

– 83 (amend ed 2023)

. The bill of cos ts
included a charg e of $147.00 for “Sta te Consolidated Court Costs

– County.” As a result, the separate charg e for “CRIME STOPPER FUND” was unauthorized and duplicative

. For th at

reason, we will mo d ify the bil l of co s ts by deleting the charge for “CRIME S TOPPER FUND,”
and we will modify th e jud gment by reducing the amount assessed for court costs by $10.00.
Diaz also asserts that the asse ssment of $5.00 for “Marshall Po li ce Depa rtment” has no support in the rec ord. N e vertheless, Diaz admits t hat t his “fee is presumably a peace officer
arrest wi thout a warrant fee,” citing Article 102.011 (e) of the Texas Code of Criminal Procedure.
See T EX . C ODE C RIM . P ROC . A NN

. art. 102. 011( e )

. Article 102.011 author izes the assessm e nt of $5.00 aga inst a defendant convic ted of a felony or a misdemeanor for a peace officer “mak ing an
arrest without a warrant.” T EX . C ODE C RI M . P ROC . A NN

. art. 102.011(a)(1). The record show s that a peace offi cer with the Marshall Polic e Departm ent arr e sted Diaz witho ut a warrant.9

Because t hi s cos t is authorized by statute and there is a basis for the cost in the record, we find
that the asse ssment of this cost was proper. See Johnson , 423 S.W.3d at 389

– 9 0

. The t rial court’s judgment recit es th at Diaz entered a plea of “GUILTY

. ” Howev er, th e record shows that Diaz ple d “ [ n ] o t guilty , ” and he asks that we modify the judgment to correctly
recite hi s not guilty plea

. We sustain this issue

. IV. Disposition
For t he reas ons st ated, we modify the bill of cost s b y deleting the ass es sment s for

“ A ttorn ey F ees, ” “ Cl erk of the Court Account,” “County Court Technology,” “County Jury Fund,” “County Records Mgmt,” “County Specialty Court Account,” “Court Reporter Ser vice
Fu nd,” “C ourtho use Security Fund,” “ P rosec utors F e es,” and “CRIME S TOPPER FUND , ” by
addi ng an asse ssment of $123.00 for “ Local Consolidated Fee,” and by changing the total court costs to $410.00. W e modify the trial court’s judgment by deleting the assessme nt for “ATTY FEE,” by chang ing th e “COUR T COST” to $410.00 , an d by changing the “Plea” to “NOT
GUILTY .” As modified, we affirm the trial court ’s judgment.

Charles van Cleef Justice
Date Submit ted: January 3, 2024 Date Decided: January 12 , 202 4
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