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. 20 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 22 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.” 23 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 24 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). 25