Affirmed as Modified and Memorandum Opinion filed March 5, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-17-00499-CR

                     DARIAS TARON LACOUR, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 177th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1471654

                 MEMORANDUM                       OPINION


      A jury convicted appellant Darias Taron Lacour of sexual assault. After
appellant pled “true” to an enhancement allegation, the trial court sentenced him to
ninety-nine years’ confinement. On appeal, appellant challenges his conviction,
arguing: (1) his trial counsel rendered ineffective assistance by failing to object to
the consideration of extraneous offenses; (2) the judgment incorrectly reflects a
conviction for aggravated sexual assault in the first degree when he was convicted
of second degree sexual assault; and (2) the court costs assessed for the sheriff’s
fee for “summoning witness/mileage” is unconstitutional.

       We modify the judgment and affirm the judgment as modified.

                                     I.         Background

       In July 2015, appellant was indicted in Harris County, Texas, on a felony
charge of sexual assault. The indictment charged the elements of sexual assault; it
listed the charge as “Aggravated Sexual Assault of an Adult.” The indictment
included an enhancement allegation that appellant had been previously adjudicated
of the felony offense of aggravated robbery.

       Appellant entered a plea of not guilty and proceeded to trial by jury on June
16, 2017. The jury found appellant guilty as charged and convicted appellant of
sexual assault. Appellant elected to have the trial court assess punishment. In the
punishment hearing, appellant pled “true” to the enhancement allegation.1
Additionally, the State called three witnesses to testify regarding extraneous
unadjudicated offenses of robbery, theft, and sexual assault.                 The trial court
sentenced appellant to ninety-nine years’ imprisonment.

       Appellant filed a timely written notice of appeal.

                                          II.    Analysis

A.     Ineffective assistance of counsel claims

       In his first issue, appellant contends he received ineffective assistance of
trial counsel at the punishment phase because his attorney failed to object to the



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         Appellant further stipulated that he was previously convicted of the felony offense of
unauthorized use of a motor vehicle, the misdemeanor offense of assault-bodily injury, the
felony offense of theft, and the misdemeanor offense of attempting to flee from a police officer.

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consideration of extraneous offenses that were not proved beyond a reasonable
doubt.

         1.    Applicable law

         The Sixth Amendment to the United States Constitution guarantees the right
to reasonably effective assistance of counsel in criminal prosecutions. U.S. Const.
amend. VI; McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). To prove a
claim of ineffective assistance, an appellant must establish, by a preponderance of
the evidence, that (1) his counsel’s representation fell below the objective standard
of reasonableness, and (2) there is a reasonable probability that but for counsel’s
deficiency the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 687, 694 (1984); see Thompson v. State, 9 S.W.3d 808,
813 (Tex. Crim. App. 1999).

         In considering an ineffective-assistance claim, we indulge a strong
presumption that counsel’s actions fell within the wide range of reasonable
professional behavior and was motivated by sound trial strategy. Strickland, 466
U.S. at 689; Thompson, 9 S.W.3d at 813; Jackson v. State, 877 S.W.2d 768, 771
(Tex. Crim. App. 1994). To overcome this presumption, a claim of ineffective
assistance must be firmly demonstrated in the record. Thompson, 9 S.W.3d at 814.
In most cases, direct appeal is an inadequate vehicle for raising such a claim
because the record is generally undeveloped and cannot adequately reflect the
motives behind trial counsel’s actions. Rylander v. State, 101 S.W.3d 107, 110–11
(Tex. Crim. App. 2003); Thompson, 9 S.W.3d at 813–14. When the record is silent
regarding trial counsel’s strategy, as here, we will not find deficient performance
unless the challenged conduct was “so outrageous that no competent attorney
would have engaged in it.” Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.
App. 2005).

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      A sound trial strategy may be imperfectly executed, but the right to effective
assistance of counsel does not entitle a defendant to errorless or perfect counsel.
Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006).             “Isolated
instances in the record reflecting errors of omission or commission do not render
counsel’s performance ineffective, nor can ineffective assistance of counsel be
established by isolating one portion of trial counsel’s performance for
examination.” Id. at 483 (quoting McFarland v. State, 845 S.W.2d 824, 843 (Tex.
Crim. App. 1992) (en banc)). Counsel’s performance is judged by “the totality of
the representation,” and “judicial scrutiny of counsel’s performance must be highly
deferential” with every effort made to eliminate the distorting effects of hindsight.
Id.; accord Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011). The
Strickland court cautioned us to avoid an intrusive post-trial inquiry into attorney
performance because such an inquiry would encourage the proliferation of
ineffectiveness challenges. Robertson, 187 S.W.3d at 483 (citing Strickland, 466
U.S. at 690).

      To that end, we are instructed that, for an appellate court to find that counsel
was ineffective, counsel’s deficiency must be affirmatively demonstrated in the
trial record. Lopez, 343 S.W.3d at 142. The Texas Court of Criminal Appeals
further advises, “[w]hen such direct evidence is not available, we will assume that
counsel had a strategy if any reasonably sound strategic motivation can be
imagined.” Id. at 143.

      In this case appellant did not file a motion for new trial alleging ineffective
assistance of counsel or develop a record of counsel’s reasons for his actions; the
record lacks any direct evidence of counsel’s strategy.




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      2.     Failure to object to consideration of extraneous offenses at
             punishment
      Appellant seeks a new punishment hearing, claiming his trial counsel was
ineffective for failing to object to the consideration of extraneous unadjudicated
offenses that were not proven beyond a reasonable doubt.

      Under article 37.07, evidence of extraneous crimes or bad acts is admissible
during the punishment phase to the extent the trial court determines it is relevant to
sentencing. See Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a). The State is
permitted to introduce extraneous offense evidence at punishment if the State
proves the extraneous offense or bad act beyond a reasonable doubt. See id.
“When a trial court, rather than a jury, assesses punishment, the court may consider
an extraneous offense in assessing punishment only if it finds that the offense was
proven beyond a reasonable doubt.” Smith v. State, 292 S.W.3d 36, 42–43 (Tex.
App.—Houston [14th Dist.] 2006), aff’d, 227 S.W.3d 753 (Tex. Crim. App.
2007).

      Here, appellant elected to have the trial court assess punishment. The State
introduced evidence at the punishment phase of trial that appellant committed the
extraneous offenses of robbery, theft, and sexual assault. Appellant’s trial counsel
did not object to the admissibility of the evidence.       Instead, appellant’s trial
counsel waited until after the State had rested its case during punishment to contest
the strength of the State’s evidence.

      [MR. RUZZO:] . . . And I’ll remind the Court, as you know as a
      senior district court judge here in Texas, that before you can consider
      any of these alleged extraneous unadjudicated acts of misconduct, you
      must be convinced beyond a reasonable doubt that those offenses have
      been proven to you by credible evidence beyond a reasonable doubt.




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Appellant’s trial counsel then went through each of the extraneous offenses raised,
attacking each extraneous offense and opining that it was not nearly enough for the
Court to consider as evidence.

      The record is silent as to trial counsel’s reasoning for not raising an
objection to the admissibility of the extraneous offense evidence and requesting a
preliminary hearing. Counsel’s decision not to object could plausibly have been
motivated by legitimate trial strategy. If trial counsel had raised a preliminary
objection prior to the State resting, the State could presumably have secured
additional witness testimony. Additionally, the State provided more than one
notice of its intention to introduce evidence of extraneous offenses and bad acts at
punishment, which included aggravated robbery, burglary of a building, multiple
thefts, multiple sexual assaults, and membership in a gang. The State did not
introduce evidence of all the extraneous offenses it could have at the punishment
phase of trial. Thus, by waiting until the State rested to attack the State’s evidence,
appellant’s trial counsel precluded the State from introducing additional evidence
of the extraneous offenses. Because a conceivable strategic motivation exists for
trial counsel’s actions, appellant has failed to overcome the strong presumption
that counsel provided reasonably professional assistance. See Garcia v. State, 57
S.W.3d 436, 440 (Tex. Crim. App. 2001).

      Appellant has failed to overcome the presumption that trial counsel’s actions
and inactions were part of counsel’s trial strategy. Counsel’s allegedly improper
actions do not amount to an error sufficiently egregious to satisfy the first prong of
Strickland on a silent record. See Strickland, 466 U.S. at 687. As such, appellant
fails to meet the first prong of the Strickland test.

      Appellant’s first issue is overruled.



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B.    Modification of judgment

      In his second issue, appellant asserts the judgment should be corrected to
reflect that appellant was convicted of sexual assault, rather than aggravated sexual
assault. Additionally, appellant maintains that the judgment should be modified to
reflect that the degree of the offense is a second degree felony instead of a first
degree felony.

      1.     Judgment of conviction should accurately designate charged
             offense
      “An appellate court has authority to reform a judgment to include an
affirmative finding to make the record speak the truth when the matter has been
called to its attention by any source.” French v. State, 830 S.W.2d 607, 609 (Tex.
Crim. App. 1992) (citation omitted); accord Lopez v. State, 515 S.W.3d 547, 550
(Tex. App.—Houston [14th Dist.] 2017, pet. ref’d); see also Tex. R. App. P.
43.2(b). We may modify judgments to correct improper recitations or omissions
relating to punishment when the court has the necessary data for modification. See
id. (permitting the court of appeals to modify the trial court’s judgment); see also
Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim. App. 1986).

      The State concedes that the judgment of conviction should be modified to
accurately designate the offense as sexual assault.     We note that although the
caption of the indictment lists the charged offense as “Aggravated Sexual Assault
of an Adult,” the actual allegations in the indictment include the elements for
sexual assault, not aggravated sexual assault of an adult.             Prior to the
commencement of trial, the State announced:

      MS. URREA: And the second matter, Your Honor, with regard to the
      charge, the defendant is charged with a second degree sexual assault.
      The title of it says aggravated sexual assault, but I just wanted to let


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      the Court know that what we are charging him with and arraigning
      him on is just a second degree.
      THE COURT: All right. The record will so reflect.
(emphasis added). The jury charge reflects the correct offense and appellant was
found guilty of sexual assault. The judgment of conviction, however, cites the
offense for which appellant was convicted as “aggravated sex assault of an adult.”

      The record supports modification of the judgment in cause number 1471654
because the judgment does not accurately reflect the offense for which appellant
was convicted.      Accordingly, we modify the trial court’s judgment in cause
number 1471654 to omit the reference to aggravated sexual assault of an adult and
to reflect appellant’s conviction for the offense of sexual assault of an adult.

      2.     Degree of offense

      Next, appellant argues the judgment should be modified to reflect the correct
degree of the offense for which he was convicted—i.e., second degree sexual
assault. The State argues that the judgment of conviction correctly reflects that the
degree of the offense for which appellant was convicted is a first degree felony
because it includes an enhancement paragraph. The State maintains that the trial
court found the enhancement paragraph to be true; therefore, the State asserts the
record does not support appellant’s contention that the judgment should be
modified to reflect appellant was convicted of a second degree felony.

      As set forth above, the State announced prior to the commencement of trial
that appellant was charged with “second degree sexual assault.” The trial court
pronounced that the record would so reflect. While the offense was punishable as
a first degree felony due to an enhancement paragraph of a felony offense of
aggravated robbery with serious bodily injury, the degree of offense remained a
second degree felony. See Olivia v. State, 548 S.W.3d 518, 526–27 (Tex. Crim.

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App. 2018).     An offense “punished as” a higher offense raises the level of
punishment, not the degree of the offense. Id. Here, the judgment incorrectly
reflects that the “Degree of Offense” as a “1ST DEGREE FELONY.”
Accordingly, we modify the judgment of the trial court to reflect the degree of the
offense as a second degree felony.

      Appellant’s second issue is sustained.

      In sum, we modify the judgment to omit references to the incorrect offense
(aggravated sexual assault of an adult) and degree of offense (first degree) and to
reflect the correct offense (sexual assault of an adult) and the correct degree of
offense (second degree felony).

C.    Court costs
      In his third issue, appellant argues “[t]he Sheriff’s fee of $165 for
summoning witness/mileage is unconstitutional as the First Court of Appeals found
in Allen v. State, ___S.W.3d __, 2017 WL 5712602 (Tex. App.—Houston [1st
Dist.] Nov. 28, 2017, no pet. h.).” Appellant complains that the “Summoning
Witness/Mileage Fee” ordered to be collected from him as a court cost pursuant to
Texas Code of Criminal Procedure article 102.011(a)(3) and (b) is facially
unconstitutional and violates the Separation of Powers Clause of the Texas
Constitution. See Tex. Const. art. II, § 1.

      This Court recently considered, and rejected, a substantially similar
constitutional challenge. Lopez v. State, No. 14-17-00205-CR, ___S.W.3d___,
2018 WL 6684242, at **8–9 (Tex. App.—Houston [14th Dist.] Dec. 20, 2018, no
pet. h.) (concluding Tex. Code Crim. Proc. art. 102.011(a)(3) and (b) are facially
constitutional)).2   This court concluded that the sheriff’s fee for summoning

      2
        See also Allen v. State, No. 01-16-00768-CR, ___S.W.3d___, 2018 WL 4138965, at
**8–9 (Tex. App.—Houston [1st Dist.] Aug. 30, 2018, pet. granted) (op. on reh’g) (rejecting
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witnesses and for related mileage is facially constitutional because “the sheriff’s
fee is an actual recoupment of the out of pocket expenses incurred for summoning
witnesses and for associated mileage.” Id., at *9. The Lopez court held that Lopez
“has not met his burden to show that the sheriff’s fees collected under the statute
cannot be used for legitimate criminal justice purposes in all possible
circumstances.” Id.

       Applying this court’s binding precedent in Lopez, we conclude appellant has
not met his burden to show that the sheriff’s fee for summoning witness/mileage
collected under the statute cannot be used for legitimate criminal justice purposes
in all circumstances.3 See Lopez, ___S.W.3d___, 2018 WL 6684242, at *9.

       Appellant’s third issue is overruled.




argument that article 102.011(a)(3) and (b) [summoning witness/mileage fees] are facially
unconstitutional because they violate Texas Constitution’s separation-of-powers clause).
Appellant’s brief was filed prior to the First Court of Appeals issuing its opinion on rehearing.
See id. Following Allen, the First Court of Appeals has found court costs facially constitutional.
See Hines v. State, No. 01-16-01017-CR, ___S.W.3d___, 2018 WL 5831075, at *6 (Tex. App.—
Houston [1st Dist.] Nov. 8, 2018, no pet. h.); Payne v. State, No. 01-16-00977-CR, 2018 WL
4190047, at 5–6 (Tex. App.—Houston [1st Dist.] Aug. 31, 2018, no pet. h.).
       3
          Similarly, this Court has overruled facial constitutional challenges to other fees imposed
by the Texas Code of Criminal Procedure. See Johnson v. State, No. 14-18-00273-CR,
___S.W.3d___, 2019 WL 438807, at **1–8 (Tex. App.—Houston [14th Dist.] Feb. 5, 2019, no
pet. h.); Jackson v. State, No. 14-17-00511-CR, ___S.W.3d ___ , 2018 WL 6695809, at **3–7
(Tex. App.—Houston [14th Dist.] Dec. 20, 2018, no pet. h.) (statutes imposing court costs for
district attorney’s fee, jury’s fee, and sheriff’s fee are facially constitutional); Moliere v. State,
No. 14-17-00594-CR, ___S.W.3d ___, 2018 WL 6493882, at **4–8 (Tex. App.—Houston [14th
Dist.] Dec. 11, 2018, no pet. h.) (statutes imposing district attorney fee and court clerk fee
facially constitutional); Johnson v. State, No. 14-16-00658-CR, ___S.W.3d___, 2018 WL
4925456, at **3–9 (Tex. App.—Houston [14th Dist.] Oct. 11, 2018, no pet. h.) (op. on reh’g)
(assessing jury fee facially constitutional).

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                                 III.   Conclusion

      The judgment, as modified, is affirmed.




                                        /s/    Margaret “Meg” Poissant
                                               Justice



Panel consists of Chief Justice Frost and Justices Spain and Poissant.
Do Not Publish—Tex. R. App. P. 47.2(b).




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