Lavillia Chantael Spry v. the State of Texas
CourtTexas Court of Appeals, 1st District (Houston)
Date FiledOctober 30, 2026
Docket01-24-00830-CR
StatusPublished
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Full Opinion
Opinion issued October 30, 2026
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-24-00830-CR
———————————
LAVILLIA CHANTAEL SPRY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Case No. 1755975
MEMORANDUM OPINION
Lavillia Chantael Spry appeals her conviction for intoxication manslaughter
of a peace officer.1 She contends that the evidence was legally insufficient to support
1
See TEX. PENAL CODE §§ 49.08(a) (stating person commits intoxication
manslaughter if she operates motor vehicle in public place and is intoxicated, and
by reason of that intoxication causes death of another by accident or
her conviction and that she received ineffective assistance of counsel. She also
argues that the trial court erroneously assessed various fees and erroneously included
fines in the bill of costs. We overrule the sufficiency and ineffective assistance of
counsel issues, and we modify the judgment to reduce witness summoning fees and
delete the EMS Trauma fine. We delete the $10,000 fine listed in the bill of costs
such that it is only listed in the judgment. We affirm the judgment in all other
respects.
Background
Sergeant R. Gutierrez, a deputy with the Harris County Sheriff’s Office
(“HCSO”) was killed while working an extra job providing motorcycle escort for an
oversized load. The motorcycle officers blocked intersections and highway exit
ramps to protect both motorists and the oversized load by preventing collisions
between the motorists and the load.
In the middle of the night in January 2022, the escort convoy was on the feeder
road to Beltway 8 as it approached Tidwell Road. Sergeant Gutierrez and at least
five other deputies worked together to escort the load in the middle of the night.
Sergeant Gutierrez wore reflective gear and a light stick, and he rode a motorcycle
mistake); § 49.09(b-2) (enhancing intoxication manslaughter to first degree felony
if person causes death of peace officer while officer is in actual discharge of official
duty).
2
with HCSO markings and flashing lights. He blocked the exit ramp at Tidwell Road
to prevent motorists from exiting into the convoy.
Spry, after several hours of drinking, drove south on Beltway 8 toward the
Tidwell Road exit. Sergeant Gutierrez was off his bike and attempted to stop Spry
from exiting and driving into the convoy. He put his hand up to stop her, but she did
not stop. When Spry did not stop, Sergeant Gutierrez began backpedaling with his
hands up to avoid getting hit. At the last minute, he shuffled, attempting to avoid her
car. Spry hit Sergeant Gutierrez and drove over him, dragging him about 125 feet
under the car. Spry kept driving down the ramp and turned onto Tidwell. Deputy
Hughes, also part of the convoy escort, ran to Sergeant Gutierrez to help, but the
injuries were too serious. Sergeant Gutierrez died on the side of the roadway.
Meanwhile, another deputy on the convoy pursued Spry for a mile before she
stopped. Spry showed signs of intoxication, including slurred speech, odor of alcohol
on her breath, and poor performance on standardized field sobriety tests. She was
arrested and taken to jail. Blood drawn around 3:00 a.m. showed that Spry’s blood
alcohol concentration was 0.164 grams per 100 milliliters, above the legal driving
limit of .08 grams per 100 milliliters.
Deputies brought Spry’s car back to the exit ramp, where they matched it to
debris left on the road during the collision. Green fibers from Sergeant Gutierrez’s
jacket were stuck to the bottom of Spry’s car.
3
Spry was indicted for intoxication manslaughter of a peace officer. See TEX.
PENAL CODE §§ 49.08(a); 49.09(b-2). The jury found her guilty and found that she
used a deadly weapon in the commission of the offense. Spry was sentenced to 43
years’ imprisonment and a $10,000 fine. She appealed.
Sufficiency of the Evidence
In her first issue, Spry argues that the evidence was legally insufficient to
prove the enhancement to intoxication manslaughter for causing the death of a peace
officer. Specifically, Spry asserts that the evidence was legally insufficient to
establish that Sergeant Gutierrez was “in the actual discharge of an official duty as
a peace officer,” as required to enhance the conviction from a second-degree to first-
degree felony. See TEX. PENAL CODE § 49.09 (b-2).
A. Standard of Review and Applicable Law
When reviewing the sufficiency of the evidence, we view all the evidence in
the light most favorable to the judgment and determine whether any rational trier of
fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Stahmann v. State, 602 S.W.3d
573, 577 (Tex. Crim. App. 2020). In making this determination, we “consider all of
the admitted evidence, regardless of whether it was properly admitted.” Stahmann,
602 S.W.3d at 577. The factfinder “is the sole judge of credibility and weight to be
attached to the testimony of the witnesses.” Id.
4
When performing an evidentiary-sufficiency review, we may not re-evaluate
the weight and credibility of the evidence and substitute our judgment for that of the
factfinder. See Arroyo v. State, 559 S.W.3d 484, 487 (Tex. Crim. App. 2018). The
factfinder “can draw reasonable inferences from the evidence so long as each
inference is supported by the evidence produced at trial,” Stahmann, 602 S.W.3d at
57, and “may rely on common sense and apply common knowledge, observation,
and experience gained in ordinary affairs when drawing inferences from the
evidence.” Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014). When the
record supports conflicting reasonable inferences, “we presume that the factfinder
resolved any conflicting inferences from the evidence in favor of the verdict, and we
defer to that resolution.” Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App.
2018).
We must “determine whether the necessary inferences are reasonable based
upon the combined and cumulative force of all the evidence when viewed in the light
most favorable to the verdict.” Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim.
App. 2015) (quoting Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).
We must also bear in mind that “[c]ircumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence alone can
be sufficient to establish guilt.” Hammock v. State, 622 S.W.3d 910, 914–15 (Tex.
5
Crim. App. 2021). “On appeal, the same standard of review is used for both
circumstantial and direct evidence cases.” Id. at 915.
“The court conducting a sufficiency review must not engage in a ‘divide and
conquer’ strategy but must consider the cumulative force of all the evidence.” Villa
v. State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017) (quoting Murray, 457 S.W.3d
at 448–49). Evidence may be legally insufficient “when the record contains either
no evidence of an essential element, merely a modicum of evidence of one element,
or if it conclusively establishes a reasonable doubt.” Britain v. State, 412 S.W.3d
518, 520 (Tex. Crim. App. 2013) (citing Jackson, 443 U.S. at 32). We “cannot act
as a thirteenth juror” and make our own assessment of the evidence; rather, our “role
on appeal is restricted to guarding against the rare occurrence when the factfinder
does not act rationally.” Nisbett v. State, 552 S.W.3d 244, 262 (Tex. Crim. App.
2018).
The Penal Code states that a person commits the offense of intoxication
manslaughter if the person “operates a motor vehicle in a public place . . . and . . . is
intoxicated and by reason of that intoxication causes the death of another by accident
or mistake.” TEX. PENAL CODE § 49.08. It is typically a second-degree felony. Id.
§ 49.08(b). The offense is enhanced to a first-degree felony if: “it is shown on the
trial of the offense that the person caused serious bodily injury to a peace
6
officer . . . while the officer . . . was in the actual discharge of an official duty.” Id.
§ 49.09(b-1)(2).
B. Analysis
Spry does not dispute that the jury could reasonably conclude that Sergeant
Gutierrez was a peace officer and that he was directing traffic. Spry argues that the
evidence is insufficient to establish that directing traffic is an official duty of peace
officers.
While “actual discharge of an official duty” has not been explicitly defined,
the Court of Criminal Appeals has held that a police officer is in “lawful discharge”
of official duties “as long as the officer was acting within his capacity as a peace
officer.” Hall v. State, 158 S.W.3d 470, 474 (Tex. Crim. App. 2005) (internal
citations omitted).
Several witnesses testified based on their personal knowledge and law
enforcement experience that Sergeant Gutierrez was in the actual discharge of his
official duties. Deputy J. Hildebrandt testified that at the time of trial, he was a crash
investigator with the vehicular crimes division, and Sergeant Gutierrez was his direct
supervisor. Deputy Hildebrandt arrived at the scene of the crash about fifteen
minutes after it happened. He testified, based on his experience in law enforcement
as a crash investigator, that both Sergeant Gutierrez’s motorcycle with its lights on
and Sergeant Gutierrez standing in the road in his uniform with his light stick were
7
law enforcement “traffic control device[s],” just like a stop sign or a red light. He
testified that at the time of the crash, Sergeant Gutierrez was in the actual discharge
of official duty by conducting traffic control, standing out in the roadway directing
traffic, and shutting down a lane so that the convoy could pass.
HCSO vehicular crimes division accident investigator Deputy C. Hughes
testified that he and Sergeant Gutierrez had worked several motorcycle escort jobs
for oversized loads around Texas, and they were working together on the night of
the crash.2 Deputy Hughes explained that motorcycle escorts protect the load by
stopping traffic at red lights, stopping exit ramps, and “anything to keep the motoring
public from striking the load or the load from striking the motoring public.”
According to Deputy Hughes, a peace officer conducting a motorcycle escort would
use red and blue lights on the motorcycle and a siren.
Deputy Hughes testified that an officer working an extra job was a law
enforcement peace officer in Texas, whether he was paid by the sheriff’s office or
an outside company for the extra work. Deputy Hughes said that after the crash,
Gutierrez was wearing the required clothing of a peace officer: motorcycle boots,
2
On this particular escort, Sergeant Gutierrez blocked roads so the convoy could
pass, and Deputy Hughes provided protection after the load drove through. Deputy
Hughes described that as the convoy moved, the hard arms that hold traffic signals
at intersections were dismantled so trucks could fit through, and he provided police
protection in the active work zone while the traffic lights were reassembled. He said
that law enforcement are the only people authorized to redirect traffic during an
active work zone.
8
motorcycle pants, a uniform shirt, a jacket liner, motorcycle helmet, and gun belt.
The headlights and emergency red and blue lights were activated on his motorcycle.
Although Spry argues that the deputies’ opinion testimony is not sufficiently
factually supported under two Court of Criminal Appeals opinions, each of these
cases is distinguishable. See Curlee v. State, 620 S.W.3d 767, 784–85 (Tex. Crim.
App. 2021); see also Baltimore v. State, 689 S.W.3d 331, 345–46 (Tex. Crim. App.
2024). Curlee was charged with possession of a controlled substance within 1,000
feet of a drug-free zone, namely a playground conviction for which required that the
playground be “open to the public.” Curlee, 620 S.W.3d at 775. On appeal, Curlee
challenged whether a church playground, which was surrounded by a chain link
fence that was not completely locked, was open to the public. Id. The Court of
Appeals held that a law enforcement officer’s opinion that the playground was “open
to the public” did not establish that element beyond a reasonable doubt for purposes
of enhancing the offense’s punishment because the officer did not provide the factual
basis for his opinion. Id. The officer testified that he had talked to the pastor of the
church and believed the gates were unlocked at all times on the date of the offense,
but photographic evidence in the record showed that the fence was at least partially
locked when the officer later inspected it. Id. at 785. The court held that the officer’s
testimony that he believed the fence was unlocked at all times was not dispositive
9
evidence that the playground was open to the public, and absent other evidence, a
fence tends to show that a playground is closed to the public. Id.
In Baltimore, the issue was the sufficiency of the evidence to support that the
parking lot outside of a bar was part of the bar’s “premises” for purposes of proving
that the parking lot amounted to a “premises” licensed to sell alcoholic beverages.
Baltimore, 689 S.W.3d at 334. The Court of Criminal Appeals held that the
detective, who was the only witness to testify to this fact, provided legally
insufficient opinion testimony because he did not offer any factual basis for his
opinion. Id. at 344. He did not testify that he was familiar with the business or its
parking lot; he did not go to the parking lot on the night of the offense; and there was
no indication that he had ever been to the bar. Id. He also did not tie his law
enforcement experience to his legal conclusion that the bar controlled the parking
lot. Id.
Here, the witnesses provided a factual basis for their opinions. The deputies
who testified were personally familiar with the duties of peace officers. They
testified from their experience as law enforcement officers, and they were also
personally experienced in the specific duties a deputy working an extra job as a
motorcycle escort. Both Deputy Hildebrandt and Deputy Hughes were at the scene
of the crash. The deputies that testified at Spry’s trial that Deputy Gutierrez was a
peace officer acting within his official duties were familiar with either the particulars
10
of the job of being a motorcycle escort or the specific roles deputies played on this
particular escort job, or both. This case is distinguishable from both Curlee and
Baltimore because the witnesses here offered factual support for their opinions based
on their actual observations and law enforcement experiences. Reviewing the
evidence to support the conviction in the light most favorable to the verdict, we
conclude that a rational jury could have found beyond a reasonable doubt that
Sergeant Gutierrez was acting in actual discharge of his official duties.
To the extent Spry argues that Sergeant Gutierrez lacked legal authority to
direct traffic as a sheriff’s deputy and peace officer, the Code of Criminal Procedure
sets out the duties of peace officers, including “preserv[ing] the peace within the
officer’s jurisdiction using all lawful means.” TEX. CODE CRIM. PROC. art. 2A.051.
The record reflects that Sergeant Gutierrez and the peace officers he worked with on
the motorcycle escort were carrying out their duties to preserve the peace by
protecting the motoring public from the convoy and the convoy from the motoring
public. The jury could reasonably conclude that Sergeant Gutierrez was performing
his duty to preserve the peace by directing traffic.
We overrule this issue.
11
Ineffective Assistance of Counsel
In her second issue, Spry argues that her trial counsel was ineffective for
failing to object on confrontation grounds to a medical examiner’s testimony
regarding the autopsy performed on Sergeant Gutierrez.
A. Applicable Facts
The assistant medical examiner who performed Sergeant Gutierrez’s autopsy
had retired at the time of trial. A different assistant medical examiner testified that
while she did not perform the autopsy, she had reviewed the report, photographs,
diagrams, x-rays, and testing performed by the retired examiner and then drawn her
own conclusions. Spry’s counsel objected “to this witness testifying about the
autopsy report since it’s been clearly established that [retired medical examiner]
would be the appropriate witness to get this information out.” The trial court
overruled the objection.
B. Applicable Law
The Confrontation Clause in the Sixth Amendment guarantees the accused the
right to confront and cross-examine the witnesses against her. U.S. CONST. amend
VI. An out-of-court statement implicates the Confrontation Clause when it is
(1) made by a declarant who is absent from trial, and (2) testimonial in nature.
Woodall v. State, 336 S.W.3d 634, 642 (Tex. Crim. App. 2011). Whether a statement
12
is testimonial is a question of law that we review de novo. Henriquez v. State, 580
S.W.3d 421, 427 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d).
An autopsy report is considered testimonial when an objective medical
examiner would reasonably believe that the report would be used in a later
prosecution. Id. By contrast, photographs taken during autopsies are not considered
statements. Id. at 428 (citing Williams v. State, 513 S.W.3d 619, 637 (Tex. App.—
Fort Worth 2016, pet. ref’d)). Autopsy photographs are considered nontestimonial
in nature and do not implicate the Confrontation Clause. Henriquez, 580 S.W.3d at
428. Furthermore, “An expert may disclose facts from the report of an autopsy
conducted by another person if the expert relied on those facts in coming to his or
her own conclusions.” Id. (quoting Williams, 513 S.W.3d at 637).
To prove a claim of ineffective assistance of counsel, a defendant must show
that (1) his trial counsel’s performance fell below an objective standard of
reasonableness and (2) there is a reasonable probability that, but for his counsel’s
unprofessional errors, the result of the proceeding would have been different.
Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); Lopez v. State, 343
S.W.3d 137, 142 (Tex. Crim. App. 2011). A defendant has the burden to establish
both prongs of the Strickland test by a preponderance of the evidence. Jackson v.
State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). A defendant’s “failure to satisfy
one prong of the Strickland test negates a court’s need to consider the other prong.”
13
Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009); see also Strickland,
466 U.S. at 697.
“A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Strickland, 466 U.S. at 694. In reviewing counsel’s performance,
we look to the totality of the representation to determine the effectiveness of counsel,
indulging a strong presumption that counsel’s performance fell within the wide
range of reasonable professional assistance or trial strategy.” See Robertson v. State,
187 S.W.3d 475, 482–83 (Tex. Crim. App. 2006). To rebut that presumption, a claim
of ineffective assistance must be “firmly founded in the record,” and “the record
must affirmatively demonstrate” the meritorious nature of the claim. See Menefield
v. State, 363 S.W.3d 591, 592 (Tex. Crim. App. 2012) (internal quotations omitted).
C. Analysis
Spry has not met her burden under the second Strickland prong. A defendant’s
“failure to satisfy one prong of the Strickland test negates a court’s need to consider
the other prong.” Williams, 301 S.W.3d at 687. She has not shown she was
prejudiced by the alleged ineffectiveness nor has she shown how the outcome of her
trial would have been different if the assistant medical examiner’s testimony had
been excluded. Spry argues that the assistant medical examiner’s testimony was the
only expert evidence on Sergeant Gutierrez’s cause of death, but the cause of death
was not seriously contested at trial. No one disputed that Spry’s car hit Sergeant
14
Gutierrez, and he died. See Henriquez, 580 S.W.3d at 429–30 (holding any
confrontation error in admitting autopsy report that showed victim died by gunshot
was harmless because it was undisputed victim died from gunshot wound). Trial
counsel never argued that Spry did not strike or kill Sergeant Gutierrez, and instead
trial counsel argued that Spry did not intend to hit him. Spry has not met her burden
to show prejudice from the medical examiner’s testimony under Strickland. We
overrule this issue.
Judgment and Court Costs
In her remaining issues, Spry complains of several errors in the judgment and
bill of costs. We address each complaint in turn.
A. Statute for the Offense
Spry argues that the judgment erroneously does not list the statute for the
offense for which she was convicted. She argues that this is a clerical error that we
have the power to correct. See TEX. R. APP. P. 43.2(b) (“The court of appeals may
modify the trial court’s judgment and affirm it as modified.”).
The judgment of conviction in this case is printed on a standardized form. The
form contains a field for the offense of conviction, as well as a field for the statute
of the convicted offense. The trial court completed the fields for the offense, but it
left blank the remaining fields for the statute.
15
The State responds that the trial court did not commit error. While the name
of the offense must appear in the judgment, there is no affirmative requirement that
the statute must also appear. See TEX. CODE CRIM. PROC. art. 42.01 § 1 (listing
requirements for criminal judgment); see also id. § 4 (requiring a court entering a
felony judgment to use standardized felony judgment form promulgated by Office
of Court Administration of the Texas Judicial System).
Nevertheless, the State does not oppose reforming the judgment to include the
statute for each offense. See Adaji v. State, 729 S.W.3d 837, 849 (Tex. App.—
Houston [14th Dist.] 2025, pet. ref’d) (reforming judgment); see also Abad v. State,
729 S.W.3d 108, 117 (Tex. App.—Houston [14th Dist.] 2025, no pet.) (following
Adaji and reforming judgment). But see Tucker v. State, No. PD-1059-24, 2026 WL
388881, (Tex. Crim. App. Feb. 12, 2026) (Newell, J., concurring) (asserting no
requirement for completion of “Statute for Offense” box on felony judgment form
and concluding judgment complies with statute when it recites the offense for which
appellant was convicted).
Without deciding whether the trial court erred, we reform the judgment to
complete the missing statute of offense field.
B. EMS Trauma Fine
Spry contends that the $100 EMS Trauma fine should not have been assessed
because it was not orally pronounced at sentencing. See TEX. CODE CRIM. PROC. art.
16
102.0185(a) (authorizing $100 EMS fine). A defendant’s sentence must be
pronounced orally in her presence. TEX. CODE CRIM. PROC. art. 42.03 §1(a); Jones
v. State, 691 S.W.3d 671, 677 (Tex. App.—Houston [1st Dist.] 2024, pet. ref’d).
When there is a conflict between the oral pronouncement of sentence and the
sentence in the written judgment, the oral pronouncement controls. Jones, 691
S.W.3d at 677 (citing Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004)).
The State does not dispute this issue, acknowledging that the trial court did not orally
pronounce the fine at sentencing. Because the court did not orally assess the “EMS
Trauma Fine” as part of Spry’s sentence, we conclude that the trial court erred when
it included the $100 fine in its written judgment and attached order to withdraw
funds. We sustain this issue and modify the judgment and bill of costs to delete the
$100 fine.
C. Arrest Fees
Next, Spry contends that $5 of her $15 rearrest fees should be struck. The
Texas Code of Criminal Procedure sets out specific fees that a defendant shall be
ordered to pay to reimburse the services of peace officers related to their trial. See
TEX. CODE CRIM. PROC. art. 102.011. Among these reimbursement fees is a $5 fee
for making an arrest without a warrant. Id. art. 102.011(a)(1). Spry argues that the
record only shows that she was arrested without a warrant twice, which amounts to
$10 in fees. Spry does not contest the fees for her initial arrest or for her first bond
17
violation in July 2022. While she acknowledges that she was arrested for a second
bond violation, Spry argues that she should not be charged an arrest fee because the
motion and order revoking bond reflect trial court cause number 1755978 and not
cause number 1755975.
“A challenge to the sufficiency of the evidence supporting court costs is
reviewable on direct appeal in a criminal case.” Ballinger v. State, 405 S.W.3d 346,
349 (Tex. App.—Tyler 2013, no pet.) (citing Armstrong v. State, 340 S.W.3d 759,
767 (Tex. Crim. App. 2011)). “We measure sufficiency by reviewing the record in
the light most favorable to the award.” Ballinger, 405 S.W.3d at 349 (citing Mayer
v. State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010)). We review the assessment
of 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.” Johnson v. State,
423 S.W.3d 385, 390 (Tex. Crim. App. 2014).
There is sufficient basis in the record for assessing the third $5 fee against
Spry for arrest without a warrant after her second bond violation. The record includes
testimony from the prosecutor during the punishment hearing in which the
prosecutor explained Spry’s conduct while on bond, including the procedural history
of her bond violations and the court’s revocations of bond and adjustment to bond
conditions. During this testimony, the prosecutor explained that Spry was charged
with three crimes from the underlying incident: intoxication manslaughter, failure to
18
stop and render aid, and evading arrest. Each charge was given a case number and
corresponding bail amount and conditions.
The prosecutor testified that in July 2022 after a violation, the court revoked
and issued new bonds in each of the three cases, essentially doubling the bond for
each charge. After receiving a violation report in October 2022, the State motioned
for revocation again and asked the trial court for a warrant to arrest Spry before the
hearing. The request was denied. After the revocation hearing the next week, the
court revoked Spry’s bail in only one of the three cases, the case for evading arrest,
and increased the bail amount for only that case. The trial court left the bail amounts
unchanged for the other two charges. The court then issued amended orders and
conditions of bail for all three cases. This testimony and the associated documents
admitted into evidence support the trial court’s imposition of the third $5 fee for
arrest without a warrant. Under these facts, there is sufficient basis in the record to
support the imposition of the $5 fee. We overrule this issue.
D. Release Fee
Spry next contends that $5 of the $15 release fee is erroneous. She argues that
she was only released on bond twice and that she was not “released” when she was
transferred to the Texas Department of Criminal Justice (“TDCJ”) because she was
not freed. The State responds that there is a basis in the record to assess the release
fee at least three times.
19
The Texas Code of Criminal Procedure allows for assessment of fees
associated with release. See TEX. CODE CRIM. PROC. art. 102.011(a)(6) (“A
defendant convicted of a felony shall pay $5 for commitment or release”). This
language refers to a defendant’s commitment to and release from county jail. Bonilla
v. State, 739 S.W.3d 878, 884 (Tex. App.—Houston [14th Dist.] pet. ref’d) (citing
Williams v. State, 495 S.W.3d 583, 591 (Tex. App.—Houston [1st Dist.] 2016, pet.
dism’d, improvidently granted)). A “commitment is an order signed by the proper
magistrate directing a sheriff to receive and place in jail the person so committed.
TEX. CODE CRIM. PROC. art. 16.20. The release occurs when the county transfers the
defendant to the prison system. See Williams, 495 S.W.3d at 592.
There is a basis in the record to support the assessed release fees. See Johnson,
423 S.W.3d at 390. Spry was released twice after her arrests on bond violations. She
was also released to TDCJ after conviction pursuant to a commitment order. To the
extent Spry contests the legality of assessing the fee when she was released to TDCJ,
inviting us to overrule Williams, we decline to do so. See Williams 495 S.W.3d at
591–92 (holding “release” from Harris County Jail to the custody of TDCJ was a
“release” under TEX. CODE CRIM. PROC. art. 102.001(a)(6)). The record is clear that
a Harris County Sheriff’s deputy executed and returned the writ directing the Sheriff
to deliver Spry to TDCJ.
We overrule this issue.
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E. Witness Summoning Fees
Spry asserts that we should modify the judgment to remove improperly
assessed witness summoning fees. Upon conviction, the defendant must be assessed
a $5 fee to defray the cost of the services provided by a peace officer in summoning
a witness. See TEX. CODE CRIM. PROC. art. 102.011(a)(3). This fee is assessed for
each witness, each time the witness is summoned. Adaji,729 S.W.3d at 850 (citing
Ramirez v. State, 410 S.W.3d 359, 366 (Tex. App.—Houston [1st Dist.] 2013, pet.
ref’d)).
There are 213 subpoenas with returns in the record. We address Spry’s
complaints in turn.
1. Subpoenas Not Executed
Spry asserts she should not be assessed a fee for 21 subpoenas marked “un-
executed” because they were not served on the witness in accordance with article
24.04 of the Code of Criminal Procedure. See TEX. CODE CRIM. PROC. art.
24.04(a)(1)–(4) (stating subpoena is served by reading subpoena in hearing of
witness, delivering copy to witness, electronically transmitting copy to last known
electronic address of witness, or mailing copy by certified mail to last known address
of witness). We have previously held that an unexecuted subpoena does not support
the witness summoning fee. See Sotelo v. State, No. 01-24-00562-CR, — S.W.3d —
, 2026 WL 2117710, at *4 (Tex. App.—Houston [1st Dist.] July 23, 2026, no pet.);
21
Adaji, 729 S.W.3d at 850–51. We conclude that the $105 in fees for 21 witnesses
should not have been assessed against Spry.
2. Subpoena Served By A District Attorney
Spry complains that she should not be assessed a fee for 37 subpoenas that
have returns stating they were served by the District Attorney. Although a subpoena
may be served under the Code of Criminal Procedure by someone who is not a peace
officer, a defendant should not be charged for the cost of a peace officer if a peace
officer is not utilized. The State posits that the District Attorney employs
investigators who are peace officers, and the subpoena could have been delivered by
a peace officer. But the unsigned returns do not show that the subpoena was
transmitted or executed by a peace officer employed by the District Attorney. The
unsigned returns for 37 of the subpoenas state that a “district attorney under the laws
of the State of Texas” delivered them. Subpoenas that are not served by a peace
officer do not support a witness-summoning fee under Article 102.011. See Bonilla,
739 S.W.3d at 885 (citing Abad, 729 S.W.3d at 120). We conclude that $185 in fees
for 37 subpoenas executed by the District Attorney should not have been assessed.
3. Subpoena Delivered To An HPD Liaison
Ten subpoenas challenged by Spry were issued for peace officers employed
by the Houston Police Department, and the service returns reflect the subpoenas
were “delivered to HPD liaison.” Our sister court has previously held that returns
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stating that subpoenas were left with the “HPD liaison” were not made on the witness
himself or herself and do not support assessment of the fee. Bonilla, 739 S.W.3d at
886; Adaji, 729 S.W.3d at 851; see TEX. CODE CRIM. PROC. art. 24.04(a)(2) (“A
subpoena is served by delivering a copy of the subpoena to the witness.”). Therefore,
we agree that $50 in fees for the 10 subpoenas delivered to the HPD liaison should
be removed.
4. Subpoenas Delivered To Or Received By Someone Other Than
The Witness
Six of the subpoena returns served by a peace officer show that they were
served on someone other than the witness3 and 38 of the subpoena returns served by
email show that they were emailed to someone other than the witness. Our sister
court has previously held that returns made on someone other than the person listed
in the subpoena do not support the witness summoning fee. Abad, 729 S.W.3d at
121. We conclude that the $210 in witness summoning fees for 42 subpoenas that
were served on someone other than the witness should not have been assessed.
5. Subpoenas Delivered By Fax
Spry challenges four subpoenas transmitted by fax. She argues that
transmission via fax is not a permissible method of service. The Code of Criminal
Procedure permits service of a subpoena by “electronically transmitting a copy of
3
This includes five subpoenas where someone other than the witness was served and
one subpoena that states that service was “via the doorbell camera.”
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the subpoena, acknowledgement of receipt requested, to the last known electronic
address of the witness.” TEX. CODE CRIM. PROC. art. 24.04(a)(3). The statute does
not specifically require email service, but electronic transmission. The Fourteenth
Court has recently held that the common, ordinary meaning of electronic
transmission as used in article 24.04 for service of a subpoena includes service by
fax. Bonilla, 739 S.W.3d at 886; Abad, 729 S.W.3d at 121–22. We conclude that
there was no error in assessing a witness summoning fee for a subpoena served via
fax.
6. Subpoena Returns Not Reflecting Electronic Address
Spry contends that 57 of the subpoenas emailed to the witnesses do not show
an electronic address for the witness on the application, subpoena, or return, and
therefore are not in accord with article 24.04(a)(3). We disagree. Article 24.04
permits electronic service to the witness’s last known electronic address and requires
the return of service to document the acknowledgement of receipt, but it does not
mandate listing the specific email address in the application, subpoena, or return.
See TEX. CODE CRIM. PROC. art. 24.04(a)(3), (c). We overrule Spry’s issue related to
the 57 subpoenas without email addresses shown.
F. Fine In Bill Of Costs
Finally, Spry contends that the $10,000 fine assessed by the jury as part of
Spry’s punishment should not have been included in the bill of costs because it is
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not a cost. The State agrees that the fine should be deleted from the bill of costs. We
sustain Spry’s argument and delete the $10,000 fine from the bill of costs. See Adaji,
729 S.W.3d at 851 (holding same); Jones, 691 S.W.3d at 679 (explaining a fine is
punitive and should be part of punishment in the judgment, not a court cost or fee
listed in the bill of costs); Roberts v. State, No. 01-20-00226-CR, 2021 WL 497306,
at *7 (Tex. App.—Houston [1st Dist.] Feb. 11, 2021, no pet.) (mem. op. not
designated for publication) (“Because a fine is punitive and cannot be included in
the bill of costs, we sustain appellant’s sixth issue and delete the fine from the
Amended Bill of Costs in cause numbers 18,035 and 18,423.”). Appellant remains
obligated to pay the fine as reflected in the judgment of conviction.
Conclusion
We reform the judgment to complete the missing statute of offense field, and
we modify the judgment and bill of costs to delete the $100 EMS Trauma fine and
to reduce the witness summoning fee by $550. We also delete the $10,000 fine from
the bill of costs. We affirm the judgment as modified. All pending motions are
denied as moot.
Susanna Dokupil
Justice
Panel consists of Justices Gunn, Caughey, and Dokupil.
Do not publish. TEX. R. APP. P. 47.2(b).
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