Opinion filed March 29, 2019




                                        In The


        Eleventh Court of Appeals
                                    __________

                               No. 11-17-00073-CR
                                   __________

                   ANTHONY LEE GOODIN, Appellant
                                           V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 220th District Court
                           Comanche County, Texas
                        Trial Court Cause No. CR04025


                      MEMORANDUM OPINION
      The jury convicted Anthony Lee Goodin of the first-degree felony offense of
aggravated sexual assault of a child younger than six years of age. The trial court
assessed his punishment at confinement for life in the Institutional Division of the
Texas Department of Criminal Justice. The trial court’s judgment of conviction
reflects that the trial court assessed court costs of $748.
      Appellant brings three issues on appeal. Appellant does not challenge either
his conviction or his sentence. Instead, he challenges the assessment of $129 in court
costs. Appellant also contends that the judgment should be modified to show a
different age for the victim. The State vigorously contests the relief requested by
Appellant. We modify and affirm.
      In his first issue, Appellant contends that there is no statutory basis to impose
court costs in the amount of $29 for “emergency medical services” because the
statute authorizing this cost only applies to a defendant convicted of certain
intoxication offenses. In his second issue, Appellant contends that there is no
statutory basis to impose court costs for “continuous abuse of a child” because
Appellant was not convicted of that offense and he was already assessed a $100 court
cost for the child abuse prevention fund.
      A defendant may raise a claim challenging the basis of the assessed court costs
for the first time on appeal. Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App.
2014). 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; traditional Jackson evidentiary-sufficiency principles do not apply.
Id. at 389–90. “A defendant convicted of a felony offense must pay certain
statutorily mandated costs and fees.” Martinez v. State, 510 S.W.3d 206, 208 (Tex.
App.—Houston [1st Dist.] 2016, no pet.) (citing Johnson, 423 S.W.3d at 389). Only
statutorily authorized court costs may be assessed against a defendant. Johnson, 423
S.W.3d at 389; see TEX. GOV’T CODE ANN. § 51.608 (West Supp. 2018).
      As noted previously, the judgment of conviction assessed $748 in court costs.
The record contains two bills of costs. The first bill of costs was dated twenty-two
days after the date that Appellant was sentenced, and it listed $1,248 in court costs,
of which $500 was included for “CRIMINAL COURT APPOINTED
ATTORNEY.” Thus, it appears that the amount for attorney’s fees was omitted
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from the court costs imposed in the judgment of conviction. The second bill of costs
was dated more than eight months later, and it listed $2,548 in court costs. The
$1,300 increase in the second bill of costs was attributable to a $1,300 increase in
the amount of attorney’s fees. Both bills of costs include a $29 “EMERGENCY
MEDICAL SERVICES” fee and a $100 “CONTINUOUS ABUSE OF A CHILD”
fee.
       Article 102.0185 of the Texas Code of Criminal Procedure is entitled
“Additional Costs Attendant to Intoxication Convictions: Emergency Medical
Services, Trauma Facilities, and Trauma Care Systems.” TEX. CODE CRIM. PROC.
ANN. art. 102.0185 (West 2018). By its express terms, it authorizes the imposition
of an additional $100 court cost upon conviction of certain intoxication offenses to
be allocated for emergency-medical services, trauma facilities, and trauma-care
systems. Id. art. 102.0185(a). The State contends that subsection (a)’s limitation to
certain intoxication offenses is not controlling because subsection (b) provides the
fee may be imposed if a defendant receives deferred adjudication. The State asserts
that, since deferred adjudication cannot be imposed for the specified intoxication
offenses, the two subsections conflict. The State contends that the conflict must be
resolved by striking subsection (a)’s reference to intoxication offenses.
       To the extent that the two subsections conflict, we disagree with the State’s
proposal for resolving the conflict. When we interpret enactments of the legislature,
“we seek to effectuate the collective intent or purpose of the legislators who enacted
the legislation.” Prichard v. State, 533 S.W.3d 315, 319 (Tex. Crim. App. 2017)
(quoting Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)). We focus
our analysis on the literal text of the statute and “attempt to discern the fair, objective
meaning of that text at the time of its enactment.” Id. (quoting Boykin, 818 S.W.2d
at 785). As evidenced by the title of Article 102.0185, it imposes “Additional Costs
Attendant to Intoxication Convictions.” Thus, the stated purpose of the article is to
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impose costs for intoxication convictions. To read subsection (b)’s disjunctive
reference to deferred adjudication as permitting the imposition of a fee for any type
of conviction would ignore the purpose of Article 102.0185.
       As we held in Echols v. State, a $29 fee for “emergency medical services” is
not authorized here because this is not an intoxication case. See Echols v. State,
No. 11-12-00149-CR, 2013 WL 9674604, at *4 (Tex. App.—Eastland Aug. 22,
2013, no pet.) (mem. op., not designated for publication) (citing CRIM. PROC. art.
102.0185(a)). Therefore, we agree with Appellant that there is no statutory basis to
impose court costs against him for an “emergency medical services” fee.
        With regard to Appellant’s second issue, the State has not directed us to, nor
have we found, any statute that authorizes court costs against a defendant for
“continuous abuse of a child” when the defendant was not convicted of that offense.
See CRIM. PROC. art. 102.0186 (permitting a fee of $100 to be assessed as court costs
for a person convicted of continuous sexual abuse of young child or children under
Section 21.02 of the Texas Penal Code).1 Thus, there was no statutory basis to
impose court costs against Appellant for a “continuous abuse of a child” fee.
        Despite the lack of a statutory basis for the imposition of the $29 “emergency
medical services” fee and the imposition of the $100 “continuous abuse of a child”
fee, the State asserts an alternative basis for upholding the assessment of these fees
as court costs. The State contends that Appellant either could have been assessed or
should have been assessed fees in the amount of $318.80 for “services of peace
officers” under Article 102.011. See CRIM. PROC. art. 102.011. The State supports
this allegation in part by supplying a supplemental clerk’s record containing copies


       1
          We note that the district clerk also assessed a $100 fee for “CHILD ABUSE PREVENTION
FUND” which appears to have been assessed under Article 102.0186. See CRIM. PROC. art. 102.0186(c)
(referencing the “child abuse prevention fund”). Appellant does not challenge the assessment of the $100
fee for the “child abuse prevention fund.”

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of over twenty subpoenas issued by the district clerk in the underlying proceedings.
However, the district clerk did not issue a bill of costs assessing fees against
Appellant for services of peace officers under Article 102.011.
      We conclude that fees assessed as court costs should stand or fail based upon
the listed purpose for each fee. See Johnson, 423 S.W.3d at 389 (“Only statutorily
authorized court costs may be assessed against a criminal defendant.”).
Accordingly, we decline to uphold the imposition of fees that lack a statutory basis
for their imposition because the district clerk perhaps could have validly assessed
other fees as court courts but did not do so. We sustain Appellant’s first and second
issues.
      In his third issue, Appellant contends that the judgment should be modified to
show the correct age of the victim. Appellant asserts that the judgment recites that
the victim was three years old at the time of the offense, but the record shows that
the victim would have been four years old at the time. We disagree.
      We have the authority to reform judgments when necessary. TEX. R. APP. P.
43.2(b); see Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). We
must reform an incorrect judgment “to make the record speak the truth” when we
have the necessary information to do so. French v. State, 830 S.W.2d 607, 609 (Tex.
Crim. App. 1992); Bigley, 865 S.W.2d at 27–28; Ferguson v. State, 435 S.W.3d 291,
295 (Tex. App.—Waco 2014, pet. struck) (an appellate court may modify the trial
court’s judgment to reflect the correct age of the victim of the offense).
      The indictment charged Appellant with intentionally and knowingly causing
the penetration of the mouth of L.E., a child younger than six years of age, with
Appellant’s sexual organ.     See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(ii),
(a)(2)(B), (f)(1) (West Supp. 2018). The jury convicted Appellant of the offense as
alleged in the indictment. Thus, the jury did not determine the exact age of L.E. at
the time that the sexual assault occurred, other than to determine that L.E. was
                                          5
younger than six as specified in Section 22.021(f)(1). See Bledsoe v. State, 479
S.W.3d 491, 497–98 (Tex. App.—Fort Worth 2015, pet. ref’d).
      The evidence offered at trial does not clearly establish when the sexual assault
occurred or L.E.’s age at the time of the assault. L.E. was born in July 2011. L.E.
made an outcry of sexual abuse to Nicole Stewart, a CPS caseworker, on March 4,
2016. L.E. was four years old at the time of this outcry statement. However,
Appellant had not lived in the home with L.E. during the preceding six months.
      A.E., L.E.’s mother, testified that the sexual assault took place sometime
between 2014 and 2015 when they lived with her grandmother. A.E. and Appellant
first moved in with her grandmother sometime in 2014. They moved in with other
relatives for a period of time and moved back in with A.E.’s grandmother around
June of 2015 when N.E., L.E.’s youngest brother, was born. They moved out a
couple of months later. A.E. and Appellant moved back to her grandmother’s house
again a couple of months later because her grandmother was sick. Around October
of 2015, A.E. and Appellant split up and Appellant moved out.
      L.E. was likely three years old when they first moved in with A.E.’s
grandmother. However, L.E. was four years old when she made an outcry of sexual
abuse to Stewart. The evidence does not clearly establish that the sexual assault
occurred when L.E. was four years old. Thus, Appellant has not shown that the
judgment is incorrect. As a result, we have no authority to reform the judgment. See
Bigley, 865 S.W.2d at 27–28; French, 830 S.W.2d at 609.
      Moreover, the court’s opinion in Bledsoe suggests that the distinction between
L.E. being listed as being three years old or four years old is not critical so long as
the judgment reflects that she was under six. 479 S.W.3d at 497–98. As noted in
Bledsoe, the determination that a child victim is less than six years of age is the
critical factor for determining Appellant’s minimum term of punishment and


                                          6
eligibility for parole. Id. (citing PENAL § 22.021(f); GOV’T CODE § 508.145(a)). We
overrule Appellant’s third issue on appeal.
                                         This Court’s Ruling
        Having sustained Appellant’s first and second issues on appeal, we modify
the trial court’s judgment to reflect that the amount of court costs is reduced by $129
to the amount of $619. See TEX. R. APP. P. 43.2(b). We affirm the trial court’s
judgment as modified.




                                                           JOHN M. BAILEY
                                                           CHIEF JUSTICE


March 29, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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