                                  NO. 12-17-00038-CR

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

KENNETH PIERCE,                                  §      APPEAL FROM THE 241ST
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §      SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Kenneth Pierce appeals his conviction for driving while intoxicated. In two issues, he
contends the judgment should be modified to correct an error in the judgment and to omit
unconstitutional court costs. We modify the trial court’s judgment and affirm as modified.


                                         BACKGROUND
       Appellant was charged by indictment with driving while intoxicated, third or more. He
pleaded “not guilty,” and the matter proceeded to a jury trial. The jury found Appellant “guilty”
and sentenced him to imprisonment for life. This appeal followed.


                                      ERROR IN JUDGMENT
       In his first issue, Appellant contends the judgment incorrectly reflects that he pleaded
“guilty” and should be modified to reflect a plea of “not guilty.” At trial, Appellant pleaded “not
guilty” and the trial court’s charge instructed the jury that Appellant pleaded “not guilty.”
However, the judgment states that Appellant pleaded “guilty.” Therefore, the judgment is
incorrect. The State concedes that the judgment should be modified to reflect the correct plea.
       We have the authority to modify the judgment to make the record speak the truth when
we have the necessary data and information to do so. Ingram v. State, 261 S.W.3d 749, 754
(Tex. App.—Tyler 2008, no pet.); Davis v. State, 323 S.W.3d 190, 198 (Tex. App.—Dallas
2008, pet. ref’d). Texas Rule of Appellate Procedure 43.2 expressly authorizes an appellate
court to modify the trial court’s judgment. TEX. R. APP. P. 43.2(b). In this case, we have the
necessary data and information to modify the judgment to reflect that Appellant pleaded “not
guilty” to the charged offense. See id.; see also Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.
Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet.
ref’d). We sustain Appellant’s first issue.


                                          COURT COSTS
       In his second issue, Appellant argues that this Court should modify the trial court’s
judgment to remove unconstitutional court costs.
Applicable Law
       The imposition of court costs upon a criminal defendant is a “nonpunitive recoupment of
the costs of judicial resources expended in connection with the trial of the case.” Johnson v.
State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). The consolidated fee statute requires a
defendant to pay a court cost of $133 on conviction of a felony. TEX. LOC. GOV’T CODE ANN.
§ 133.102(a)(1) (West Supp. 2016). The money received is divided among a variety of state
government accounts according to percentages dictated by the statute. See id. § 133.102(e)
(West Supp. 2016); Salinas v. State, No. PD–0170–16, 2017 WL 915525, at *1 (Tex. Crim.
App. Mar. 8, 2017). The court of criminal appeals has held the statute unconstitutional with
respect to two of these accounts: an account for “abused children’s counseling” and an account
for “comprehensive rehabilitation.” See Salinas, 2017 WL 915525, at *1. As a result, the court
held that any fee assessed pursuant to the statute must be reduced pro rata to eliminate the
percentage of the fee associated with these accounts. Id. The court further held that its holding
applies only to (1) a defendant who raised the appropriate claim in a petition for discretionary
review before the date of the court’s opinion, if the petition is still pending on that date and the
claim would otherwise be properly before the court on discretionary review, or (2) a defendant
whose trial ends after the mandate in Salinas issues. Id. at *6.
Analysis
       Here the final judgment shows a court cost assessment of $389. The bill of costs shows
that the $133 consolidated fee was assessed. However, because (1) no petition for discretionary



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review is pending on Appellant’s claim, and (2) the proceedings in the trial court ended on
January 25, 2017—prior to the court of criminal appeals’s decision in Salinas—the court’s
holding in that case does not apply. See id. Accordingly, we overrule Appellant’s second issue.


                                                  DISPOSITION
         Having sustained Appellant’s first issue and overruled his second issue, we modify the
judgment to replace “Guilty” with “Not Guilty” in the “Plea to Offense” portion of the judgment,
and affirm the trial court’s judgment as modified.

                                                                GREG NEELEY
                                                                   Justice


Opinion delivered September 20, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        SEPTEMBER 20, 2017


                                         NO. 12-17-00038-CR


                                       KENNETH PIERCE,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                 Appeal from the 241st District Court
                         of Smith County, Texas (Tr.Ct.No. 241-0267-16)

                       THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below should be modified and, as modified, affirmed.
                       It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment below be modified to replace “Guilty” with “Not Guilty” in the “Plea to
Offense” portion of the judgment; and as modified, the trial court’s judgment is affirmed; and
that this decision be certified to the trial court below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
