                                 NO. 12-13-00370-CR

                           IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

JUSTIN MAULDIN,                                 §      APPEAL FROM THE 241ST
APPELLANT

V.                                              §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §      SMITH COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Justin Mauldin appeals his conviction for assault family violence. He raises three issues
on appeal. We modify the judgment of the trial court, and as modified, affirm.


                                         BACKGROUND
       Appellant was indicted for assault family violence.         The indictment alleged that
Appellant had a prior conviction for assault family violence, enhancing the offense to a third
degree felony.
       Appellant filed a pretrial motion to quash the indictment. In it, he alleged that the trial
court lacked jurisdiction over the case because the State could not prove that the enhancement
elevating this misdemeanor offense to a felony was for family violence—a prerequisite to the
enhancement. Without the enhancement, his argument continued, the charged offense in this
case is a misdemeanor over which the trial court lacks jurisdiction. After a hearing, the trial
court denied the motion.
       Appellant pleaded guilty pursuant to a negotiated plea agreement.          The trial court
accepted the agreement, found Appellant guilty of the offense, and found that the enhancement
was true. The trial court sentenced Appellant to three years of imprisonment and certified
Appellant’s right to appeal. This appeal followed.
                              MOTION TO QUASH THE INDICTMENT
       In his first issue, Appellant contends that the trial court erred when it denied his pretrial
motion to quash the indictment.
Standard of Review and Applicable Law
       The presentment of an indictment vests a district court with jurisdiction. TEX. CONST.
art. V, § 12(b). District courts and criminal district courts have original jurisdiction in criminal
cases of the grade of felony, of all misdemeanors involving official misconduct, and of
misdemeanor cases transferred to the district court under Texas Code of Criminal Procedure
Article 4.17. TEX. CODE CRIM. PROC. ANN. art. 4.05 (West 2005). When the face of the
indictment charges a felony, the district court does not lose jurisdiction if the state is able to
prove only a misdemeanor at trial. See TEX. CODE CRIM. PROC. ANN. art. 4.06 (West 2005);
Jones v. State, 502 S.W.2d 771, 773-74 (Tex. Crim. App. 1973); State v. Meadows, 170 S.W.3d
617, 620 (Tex. App.—El Paso 2005, no pet.).
       A charging instrument that is valid on its face and returned by a legally constituted grand
jury is sufficient to mandate trial of the charge on its merits. Meadows, 170 S.W.3d at 620. The
sufficiency of an indictment cannot be supported or defeated by evidence at a pretrial hearing.
State v. Rosenbaum, 910 S.W.2d 934, 948 (Tex. Crim. App. 1994) (dissenting op., adopted on
reh’g); Meadows, 170 S.W.3d at 620. An indictment must be facially tested under the law as a
pleading. Rosenbaum, 910 S.W.2d at 948. In the pretrial setting, there is neither constitutional
nor statutory authority for a defendant to test, or for a trial court to determine, the sufficiency of
evidence to support or defeat an element alleged in the indictment. Woods v. State, 153 S.W.3d
413, 415 (Tex. Crim. App. 2005); Rosenbaum, 910 S.W.2d at 948; Meadows, 170 S.W.3d at
620.
       We review a trial court’s ruling on a motion to quash an indictment de novo because the
sufficiency of a charging instrument is a question of law. Smith v. State, 309 S.W.3d 10, 13–14
(Tex. Crim. App. 2010); State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).
Generally, when an indictment tracks the language of a statute, it will satisfy constitutional
requirements. State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998). A motion to quash,
like any other pretrial motion, cannot be used to argue that the prosecution is unable to prove one
of the elements of the crime. Lawrence v. State, 240 S.W.3d 912, 916 (Tex. Crim. App. 2007);




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Woods, 153 S.W.3d at 415. A pretrial proceeding should not be a ―mini-trial‖ on the sufficiency
of the evidence to support an element of the offense. Lawrence, 240 S.W.3d at 916.
Discussion
       The indictment in this case alleges the charged offense, and as an enhancement, alleges
that Appellant was convicted of a prior offense


       under Chapter 22, Penal Code, against a member of the defendant’s family and a member of the
       defendant’s household and a person with whom the defendant has or has had a dating relationship,
       as described by Section 71.003 and 71.005 and 71.0021(b), Family Code, to wit: on the 18th day of
       October, 2005, in the County Court at Law No. 3 of Smith County, Texas, in cause number 003-
       82602-05.


       At the pretrial hearing on his motion to quash the indictment, Appellant offered extrinsic
evidence pertaining to the prior offense, including testimony from the victim of that offense, the
plea agreement, and the judgment. Appellant attempted to show through this evidence that the
prior offense was not an assault offense against a family member or household member,
precluding the application of the enhancement in this case.
       Particularly, he argued that, at the time the prior offense was committed, the statute
authorized an enhancement, elevating the charged offense from a misdemeanor to a third degree
felony, if the prior offense was against a family member or household member. See Act of June
17, 2005, 79th Leg., R.S., ch. 788, § 1, 2005 Tex. Sess. Law Serv. 2711, 2711 (West) (codified at
TEX. PENAL CODE ANN. § 22.01(b)(2)). He argued that the victim in the prior offense met
neither criteria. Rather, he contended that the prior assault was, if anything, an assault arising
out of a dating relationship, and the statute permitting an enhancement pertaining to an assault
arising out of a dating relationship did not go into effect until after the prior offense was
committed.    See id. ch. 788, § 7, 2005 Tex. Sess. Law Serv. 2711, 2713.                        Without the
enhancement, he argues, the charged offense in this case is a misdemeanor, and the trial court
lacked jurisdiction over the case.
       This court may not examine any of the extrinsic evidence offered at the hearing to
determine whether in fact the State may ultimately prove that the prior offense can properly
serve as an enhancement. See, e.g., Woods v. State, 153 S.W.3d at 415; Rosenbaum, 910
S.W.2d at 948; Meadows, 170 S.W.3d at 620. Testing the indictment as a pleading, as we must,
we note that it facially alleges an offense and an enhancement by tracking the language of the



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statute. See id. Consequently, had the State not been able to prove that the prior offense serves
as an enhancement, the trial court would still retain jurisdiction over the misdemeanor offense.
See id.
          Since we may not consider Appellant’s evidence in our review of this pretrial motion to
quash, and since the indictment facially alleges an offense and an enhancement by tracking the
language of the relevant penal statute, the trial court’s jurisdiction was properly invoked. See
Meadows, 170 S.W.3d at 619-20 (applying this rule to same statutory scheme for enhancing
assault family violence case to felony and concluding that pretrial motion to dismiss was
inappropriate vehicle to challenge indictment). Therefore, the trial court properly denied the
motion to quash.
          Appellant’s first issue is overruled.


                                             COURT COSTS
          In his second issue, Appellant contends that the trial court erred by imposing attorney’s
fees as court costs and by ordering that funds be withdrawn from his inmate trust account. In his
third issue, Appellant contends that the evidence is legally insufficient for the trial court to assess
costs. The State has joined Appellant’s request on these issues.
Standard of Review and Applicable Law
          When the imposition of court costs is challenged on appeal, we review the assessment of
costs to determine if there is a basis for the cost, not to determine if there is sufficient evidence
offered at trial to prove each cost. Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App.
2014). Although a defendant is entitled to notice and an opportunity to be heard when the state
attempts to withdraw funds from his inmate trust account, neither needs to occur before the funds
are withdrawn. Cardenas v. State, 423 S.W.3d 396, 399 (Tex. Crim. App. 2014) (citing Harrell
v. State, 286 S.W.3d 315, 319–21 (Tex. 2009)).
          ―If the court determines that a defendant has financial resources that enable him to offset
in part or in whole the costs of the legal services provided,‖ the court ―shall order the defendant
to pay . . . as court costs the amount that it finds the defendant is able to pay.‖ See TEX. CODE
CRIM. PROC. ANN. art. 26.05(g) (West Supp. 2014). The trial court’s determination that a
defendant has the financial resources to offset the costs of the legal services provided must be
supported by some factual basis in the record. See id.; Mayer v. State, 309 S.W.3d 552, 557



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(Tex. Crim. App. 2010). Absent a finding that the defendant has the financial resources and
ability to pay, the evidence will be insufficient to support the imposition of attorney’s fees. See
id.; Johnson v. State, 405 S.W.3d 350, 354 (Tex. App.—Tyler 2013, no pet.) (citations omitted).
Discussion
         The judgment of conviction assesses $579.00 as court costs and contains an order of
withdrawal (Attachment A) directing that $389.00 be withdrawn from Appellant’s inmate trust
account. The bill of costs includes the assessment of attorney’s fees in the amount of $300.00.
         The record shows that the trial court appointed counsel to represent Appellant at trial and
later appointed counsel to represent him on appeal. There is no factual basis in the record that
shows Appellant has the financial resources to enable him to offset, in part or in whole, the costs
of the legal services provided. See id. Accordingly, there is no factual basis supporting the
imposition of attorney’s fees as court costs. Id. We sustain Appellant’s first and second issues.


                                                    DISPOSITION
         Having overruled Appellant first issue, and having sustained Appellant’s second and third
issues, we modify the trial court’s judgment to reflect that the amount of court costs is $279.00.
See TEX. R. APP. P. 43.2(b).             We also modify Attachment A to delete the assessment of
attorney’s fees and to state that the total amount of ―court costs, fees and/or fines and/or
restitution‖ is $279.00. We affirm the judgment as modified. See TEX. R. APP. P. 43.2(b).
                                                                  SAM GRIFFITH
                                                                     Justice

Opinion delivered August 29, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                           AUGUST 29, 2014


                                          NO. 12-13-00370-CR


                                        JUSTIN MAULDIN,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                             Appellee


                                 Appeal from the 241st District Court
                         of Smith County, Texas (Tr.Ct.No. 241-0971-13)

                       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 the amount of court costs is $279.00. We
also modify Attachment A to delete the assessment of attorney’s fees and to state that the total
amount of ―court costs, fees and/or fines and/or restitution‖ is $279.00; and as modified, the
trial court’s judgment is affirmed; and that this decision be certified to the trial court below for
observance.
                    Sam Griffith, Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
