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

No. 06

- 21

- 00076

- CR

RICHARD DEE PERRY , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 6th District Court Lamar County, Texas Trial Court No. 29017

Before Mor riss, C.J., Stevens and Carter , * JJ. Memorandum Opinion by Justice Stevens

____________________ *Jack Carter, Justice, Retired, Sitting by Assignment2 

### ME MORANDUM OPINION
A Lamar County jury convicted Richard Dee Perry of family violence assault with one prior conviction for family violence assault 1 and, after his punishment was enhanced by two prior felony convictions, 2 assessed him fifty

- five years’ imprisonment. In this appeal, Perry asserts that (1) the ind ictment was so deficient that it failed t o confer jurisdiction on the trial
court , (2) the trial court erred in its charge to the jury by charging on a felony offense when a misdemeanor offense was alleged in the indictment , and ( 3 ) the trial cour t erred in assessing a time payment fee in its jud gment. Because we find that the indictment was sufficient to confer jurisdiction and that the trial court did not err in charging the jury o n a felony offense , we affirm the trial court’s judgment. Howev er, we modify the judgment by d eleting the time pay ment fee

. I. The Indictment Sufficiently Alleged a Felony and Invoked the Trial Court’s Jurisdiction In his first issue, Perry asserts that the indi ctment left out one element of family violence assault so th at it alleged a class A misdemeanor , rather t han a felony. As a result, he asserts that the indictment was so deficient that it failed to vest the trial court with jurisdiction. See T EX
. C ODE C RIM
. P ROC
. A NN
. art. 4.05 (providing that district courts have original juri sdic tion of felony cases and a li m i ted class of misdemeanor cases not applicable in this case).
As Perry correctly points out , an assault causing bodily injury is generally a class A misdeme anor that becomes a third

- degree felony only when , as applicable to this case, the

assau lt (1) i s c ommitted against a member of the defendant’s family or household, or a person

1 See T EX
. P ENAL C ODE A NN
. § 22.01( b)(2)(A).

2 See T EX
. P ENAL C ODE A NN
. § 12.42( d).3

with whom the defendant has or has had a dati ng relationship (collectively “a family member ”) , and (2) the defendant has a prior conviction for ce rtain specified offe nses (incl u d i ng assault) against a family member. See T EX
. P ENAL C ODE A NN
. § 22.01(b)(2)(A). Perry argues that , although the indictment in this case alleged that he had committed an assault causing bodily injur y against a family memb e r and that he had previou sly b e e n convicted of an offense against a family member , it did not specify what off en se he committed against a family member in the prior conviction. 3 As a result, Perry argues, by failing to allege a conviction for on e of the specifi c off

enses listed i n Sec t i on 22.01(b)(2)(A), the indictment om itted one of the elements required to classify the charged offense as a third

- degree felony and failed to confer the trial court with jurisdiction. “The suffic iency of an indi ctment is a que stion of law

. ” Smit h v. S t a te , 494 S.W.3d 243, 247 (Tex. App.

— Texarkana 2015, no pet.) (quoting State v. Moff , 154 S.W.3d 599, 601 (Tex. Crim. App. 2004)). “[ T ] o comprise an indictment within the definition provided by the constitution, an instrument mus t cha rge: (1) a per son; ( 2 ) with the commission of an offe nse. ” Cook v. State , 902 S.W.2d 471, 477 (Tex. Crim. App. 1995) , abrogated on other grounds by Jenkins v. State , 592 S.W.3d 894, 896 (Tex. Crim. App. 2018) , (citing T EX
. C ONST
. a rt. V, § 12(b) )

. “[A] written instrume nt is a n indictment or information under the Constitution if it

3 In relevant part, the indictment alleged that RICHARD DEE PERRY on or abou t October 6, 2020 in Lamar Count y, T e xas, anterior to the p r esen tment of this Indictment, did then and there intentionally, knowingly, or recklessly cause bodily inju ry to Danielle Riggs, a member of the Defendant ’ s family or household or a pers on with who m the Defendant has or has had a dat i ng relationship by s t r i king Danielle Riggs in the face and/or on her head with his hand, And before the commission of the charged offense, the Defendant had previously been convicted of an offense against a m ember of th e Defendant ’ s family or househol d or a person with whom t h e Defe ndant has or has had a dating relationship, to

- wit: on or about September 4, 2009 in the 6 th District Court of Lamar County, Texas in Cause Number 23315.4

accuses someone of a crime with enough clarity and specificity to identify the penal statute under which the State intends to prosecute, even if the instrum ent is otherwis e def ective.” Mantoo th v.
S tate , 269 S.W.3d 68, 72 (Tex. App.

— Texarkana 2008, no pet.) (quoting Duron v. State , 956 S.W.2d 547, 550

– 51 (Tex. Crim. App. 1997)).

“ The presentment of a valid indictment vests the district court w ith jurisdictio n of the

cause. ” Je nkins v. State , 592 S

. W .3d 894, 898 (Tex. Crim. App. 2018) (citing T EX
. C ONST
. a rt. V, § 12(b) )

. “ Even if an indictment has a substantive defect, it can still qualify as an indictment that vests a district court with juri sdiction. ” Id

. (citing Studer v. S tate , 799 S.W .2d 263 , 271 (Tex. Crim. App. 1990) ). “ However, if an indictment is so defective that it does not meet the constitutional definition of an indictment, it does not vest the court with jurisdiction. ” Id

. In determining wh ether an indictm ent i s constitu tio nal ly s u f ficient to ve st the trial court with jurisdiction, we ask , “ C an the district court and the defendant determine, from the face of the indictment, that the indictment intends to charge a felony or oth er offense f or which a distr ict

c ourt has jurisd ict ion? ” Id

. at 899 (quoting Teal v. State , 230 S.W.3d 172 , 181 ( Tex. Crim. App. 2007) ) . Further , in examining the indictment, we look at “ the indictment as a whole

. ” Id

. (quoting Teal , 230 S.W.3d at 182). Like Perry, the appellant i n Kir kpatrick v. Sta te claim e d that the indictment, as worded, only charged a misdemeanor , not a felony , so that the trial court did not have jurisdiction. Kirkpatrick v. State , 279 S.W.3d 324 , 326 ( Tex. Crim. App. 2009)

. The T exas Court of Criminal Appea ls ac knowledged that th e in d i ctment charged a misdemeanor and omitted a necessary element for the felony offense. Nevertheless, it pointed out that “ the felony offense exists, and the indictment’s return in a felony court put a ppell ant on notice that the charg ing of the felo ny5

offe n s e was intended. ” Id

. at 329. In addition, the heading of the indictment set out the charged offense , stated that it was a third

- degree felony , and cited the Texas Penal Code section under which the offense wa s charged. Id

. A s a r esult , the c ou rt h eld t hat “[t] he Penal Code section was easily ascertainable, and the notation that the offense was a third

- degree felony clearly indicated that the state intended to char ge a felony offense and that the di strict cou rt had subject

- mat ter j urisdiction. ” Id

. Li k e wise, in this case , the indictment arguably omitted a necessary element for a felony family violence assault. Even so , the face of the indictment ’s heading states , in relevant part ,

“ CHARGE: ASSAULT FAMILY OR HOUSEHOLD MEMBER W/PRE V. CONV ” and

“ THIR D D E G REE FELONY TEXAS PENAL CODE, SECTION 22.01 .” As a result, the
P enal C ode section was clearly ascertainable by the district court and the defendant, and the statement that it was a third

- degree felon y clearly indicated that th e ind ictment’s inten t was to

c harge a felony for which the district court had jurisdiction. See id

. ; see also Jenkins , 592 S.W.3d at 899; Teal , 230 S.W.3d at 181. As the Texas Court of Criminal Appeals has noted , “ I f [Perry] had confusion about whethe r the State did, or inten ded to , charge [him] with a felony, [] he could have, and should have, objected to the defective indictment before the date of trial. ” 4 Kirkpatrick , 279 S.W.3d at 329. For that rea son , we hold that the indict m ent was sufficient to alleg e a felony offe nse a nd
to v e st the trial court with jurisdiction. See i d

. We , therefore, overrule Perry’s first issue.

4 See T EX
. C ODE C RIM
. P ROC
. A NN
. art. 1.14 (“ If the defendant does not obj e ct to a defect, erro r , or i rregularity of form or substance in an indictment or information before the date on which the tr ial on the merits commences, he waives and forfeits the right to object to the defect, error, or irregularity[,] and he may not rais e the objection on ap p e a l or in any other postconviction proceeding. ”).6

II. The Trial Court Did Not Err By Charging on a Third
- Degree Felony In his second issue , Perry complains that , i n the guilt/innocence phas e of the trial , t he tr ial

c o urt erroneously charged the jury on family violence assault with a prior conviction , a third

degree felony, rather than a class A misdemeanor. “ We employ a two

- step process in our revie w of alleged j ury charge error.” Mur rieta v. State , 578 S. W.3d 552, 5 54 (Tex. App.

— Texarkana 2019, no pet.) (citing Abdnor v. State , 871 S.W.2d 726, 731 (Tex. Crim. App. 1994)). “Initially,
we determine whether error occurred and then evaluate whether suff icient harm resulted from the

error to r equire reversal.” 5 Id

. (q u o ting Wilson v. State , 391 S.W.3d 131, 138 (Tex. App.

— Texarkana 2012, no pet.) (citing Abdnor , 871 S.W.2d at 731

– 32)). “[T]he jury is the exclusive judge of the facts, but it i s bound to re ceive the la w from the court and be gove rned thereby.” I d

. (q uoti n g T EX
. C ODE C RIM
. P ROC
. A NN
. art. 36.13). “A trial court must submit a charge setting forth the ‘law applicable to the case.’” Id

. (quoting Lee v.
State , 415 S.W.3d 915, 917 (Tex. App.

— Te xarkana 2013 , pet. ref’d) (quoting T EX
. C ODE C RIM
. P ROC
. A NN
. art. 3 6.14) ) . “The purpose of the jury charge . . . is to inform the jury of the applicable law and guide them in its application. It is not the function of the charge merely to

av oid misleadin g or confus ing the jury: it is th e fun ction of the charg e to lea d and prevent confusion.” Id

. (quoting Lee , 415 S.W.3d at 917; Delgado v. State , 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)). This issue is based on Perry’s contention that the indictment on ly charged a misdemeanor , rather t han a third

- degree felo ny , si nc e it omitted a necessary element of the

5 Nevertheless, if we do not find jury charge error , no harm analysis is required. See, e.g. , Becker

- Ross v. State , 59 5 S.W.3d 261, 271

– 72 (Tex. App

. — Texarkana 2020, no pet.).7

felony offense. However, as we previously discussed, the face of the indictment was suf ficient to show that the State intended to charge family violenc e assault with a prior conviction, a th ird

degree felony

. Any c o m plaint regarding a defect in the indic tment was required to be asserted before the date the trial commenced. See T EX
. C ODE C RIM
. P ROC
. A NN
. art. 1.14 ; Kirkpatrick , 279 S.W.3d at 329. Since the indictme n t was sufficient to alle ge th e third

- degree

- fel ony o f f e nse of family violence assault with a prior conviction , and the State offered evidence of the same, the trial court was required to charge the jury on that offens e . See Johnson v. State , 571 S.W.2d 1 70, 173 (Tex. Crim. App. [Pan el Op.] 1978 ) (“[A] cor r e c t instruction of the law relating to the offense charged must be given to the jury

. ” ). For that reason, we conclude that the trial court did not err in ch arging the jury on the third

- degree

- felony off

ense of family violence a ss aul t with a prior convicti o n . We overrule this issue.
III. The Judgment Must Be Modified Perry al so challenges the trial court’s assessment of a time payment fee as part of the costs of c ourt. He argues that the time payment fee is unconstitutional and , in the alt er native, that his f i l i n g of an appeal suspended his obligation to pay court costs. The State agrees that the assessment of the time payment fee was premature. In this case, the trial court’s judgment included court cos ts of $3 0 5.00. The certified b ill

o f costs listed cos t s o f co urt of $3 0 5.00, which included a time payment fee of $15.00. We are require d to strike a time payment fee like the one imposed here “ for being prematurely assessed because a defendant ’ s appeal suspends the duty to pay court cos ts and therefore sus p e n d s th e running of the clock for the purposes of the time payment fee. ” Dulin v. State , 620 S.W.3d 129,8

129 (T ex. Crim. App. 2021). For that reason, we strike the time payment fees “ in their entire ty, without prejudice to them b ein g assessed later if, m o r e th a n 30 days after the issuance of the appellate mandate, the defendant has failed to completely pay any fin e, court costs, or restitution that he owes.” Id

. at 1 33

. We sustain this issue. 6
IV. Conc lusion We modify the bill of co sts b y deleting the time p a ymen t fee of $15.00 and to reflect total court costs of $ 29 0.00. We modify the trial court’s judgment to refl ect court costs of $ 2 9 0.00

. As modified, we affirm the trial court’s judgment.

Scott E. Stevens Justice Date Submitt ed: M arch 8, 2022 Date D e c ided: April 12 , 202 2 Do Not Publish

6 Bec aus e of our disposition s t r i king the time payment fee as prematurely assessed, and because we should “avoid[] the adjudication of constitutional issues when at all possible,” we do not addres s Perry ’s constitutional challeng e. Dulin , 620 S.W.3d at 133 n. 2 9 ( qu oting Pena v. State , 1 9 1 S. W.3d 133, 136 (Tex. Crim. App. 2006 ) ).