                                  NO. 12-17-00209-CR

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

RUBEN HERNANDEZ, JR.,                            §    APPEAL FROM THE 114TH
APPELLANT

V.                                               §    JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §    SMITH COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Ruben Hernandez Jr. appeals his conviction for burglary of a habitation. In two issues,
Appellant contends the judgment should be modified to omit certain court costs. We modify the
trial court’s judgment and affirm as modified.


                                         BACKGROUND
       Appellant was charged by indictment with burglary of a habitation with intent to commit
a theft. He pleaded “not guilty,” and the matter proceeded to a jury trial. The jury found
Appellant “guilty” and sentenced him to imprisonment for ten years. This appeal followed.


                                         COURT COSTS
       In his first issue, Appellant argues that this Court should modify the trial court’s
judgment to remove the court costs associated with DNA testing. In his second issue, he
contends this Court should modify the judgment to omit unconstitutional court costs.
Standard of Review
       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). Therefore, we review the assessment of
court costs on appeal to determine if there is a basis for the cost, not to determine if there was
sufficient evidence offered at trial to prove each cost. Id.
The $250 DNA Testing Fee
       Chapter 102 of the Texas Code of Criminal Procedure governs costs to be paid by
convicted defendants. Article 102.020(a)(1) requires a person convicted of an offense listed in
section 411.1471(a)(1) of the Texas Government Code to pay a court cost of $250.00 for DNA
testing. See TEX. CODE CRIM. PROC. ANN. art. 102.020(a)(1) (West Supp. 2017); TEX. GOV’T
CODE ANN. § 411.1471(a)(1) (West Supp. 2017). In this case, Appellant contends that because
he was not convicted of an offense enumerated in section 411.1471(a)(1) of the government
code, the $250 cost for DNA testing was improperly assessed against him. The State agrees, and
so do we.
       According to the judgment and attached withdrawal order, Appellant owes $479 in court
costs. The bill of costs demonstrates that this amount includes the $250 DNA testing fee.
However, Appellant was convicted of burglary of a habitation with intent to commit theft under
section 30.02(c)(2) of the Texas Penal Code. See TEX. PENAL CODE ANN. § 30.02(c)(2) (West
Supp. 2017). Section 30.02 is not listed as one of the offenses to which Texas Government Code
section 411.1471(a)(1) applies. TEX. GOV’T CODE ANN. § 411.1471(a)(1). Therefore, the $250
fee for DNA testing was improperly assessed.
       We have the authority to modify an incorrect 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). Because we have the necessary
data and information, we conclude that the judgment should be modified to delete the $250 DNA
testing fee. Thus, we sustain Appellant’s first issue.
Unconstitutional Court Costs
       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. 2017). 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. 2017); Salinas v. State,
523 S.W.3d 103, 105 (Tex. Crim. App. 2017). The court of criminal appeals has held the statute



                                                  2
unconstitutional with respect to two of these accounts: an account for “abused children’s
counseling” and an account for “comprehensive rehabilitation.” See Salinas, 523 S.W.3d at 105.
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 113.
         Here, the final judgment shows a court cost assessment of $479. The bill of costs shows
that the $133 consolidated court cost fee was assessed. Appellant contends the fee should be
reduced to $119.93 to reflect omission of the fees for “abused children’s counseling” and an
account for “comprehensive rehabilitation.” However, because (1) no petition for discretionary
review is pending on Appellant’s claim, and (2) the proceedings in the trial court ended on June
12, 2017—prior to the court of criminal appeals’s mandate in Salinas—the court’s holding in
that case does not apply and Appellant is not entitled to the requested reduction of the
consolidated court cost fee. See id.; see also Salinas v. State, No. PD–0170–16 (Tex. Crim.
App. June 30, 2017) (mandate). Accordingly, we overrule Appellant’s second issue.


                                                  DISPOSITION
         Having sustained Appellant’s first issue and overruled his second issue, we modify the
judgment, along with its attached order to withdraw funds, to reflect that Appellant’s court costs
are $229. We affirm the judgment as modified.

                                                                 GREG NEELEY
                                                                    Justice

Opinion delivered March 7, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)


                                                          3
                                  COURT OF APPEALS

     TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                           MARCH 7, 2018


                                        NO. 12-17-00209-CR


                                   RUBEN HERNANDEZ, JR.,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                               Appeal from the 114th District Court
                        of Smith County, Texas (Tr.Ct.No. 114-0427-15)

                      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 reflect that Appellant’s court costs are $229.00; 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.
