Full Opinion

Court of Appeals Tenth Appellate District of Texas 10-25-00130-CR Juan Alvarez Grady, Appellant v. The State of Texas, Appellee On appeal from the 170th District Court of McLennan County, Texas Judge Thomas C. West, presiding Trial Court Cause No. 2019-885-C1 JUSTICE HARRIS delivered the opinion of the Court. MEMORANDUM OPINION Juan Alvarez Grady was adjudicated delinquent for committing nine counts of aggravated sexual assault of a child. The juvenile court rendered a determinate sentence for 12 years, probated for 10 years. After his case was transferred to the adult court because of his age, Grady’s community supervision was revoked, and the court sentenced him to 10 years in prison in each count. The sentences in the first eight counts were ordered to run concurrently, and the ninth count was ordered to run after the completion of the time to be served on the first eight counts. We affirm the trial court’s judgments as to the first eight counts and affirm as modified the trial court’s judgment as to the ninth count. STACKING SENTENCES In his first issue, Grady complains that the trial court’s cumulation order is unlawful because juvenile adjudications cannot be stacked under Texas Penal Code section 3.03. Generally, when an accused is found guilty of more than one offense arising out of the same criminal episode prosecuted in a single criminal action, the sentences must run concurrently. See TEX. PENAL CODE § 3.03(a). However, on the conviction of certain offenses, such as aggravated sexual assault, the sentences may run concurrently or consecutively. See id. at (b)(2-a). Grady argues that an adjudication is not a conviction; thus, the trial court erred in stacking Count IX onto Counts I-VIII. 1 The Juvenile Justice Code provides that an order of adjudication or disposition in a proceeding under the Code is not a conviction of a crime. TEX. FAM. CODE § 51.13(a). Even when a transferred defendant who has been adjudicated delinquent violates the conditions of his probation, as in this case, 1 Grady did not object to the trial court’s sentences. Regardless, he did not affirmatively waive his right to concurrent sentencing under section 3.03(a) and may raise this issue for the first time on appeal. See Ex parte Carter, 521 S.W.3d 344, 347 (Tex. Crim. App. 2017); Ex parte McJunkins, 954 S.W.2d 39, 41 (Tex. Crim. App. 1997). Grady v. State Page 2 the district court cannot convict the defendant of the adjudicated offense; the court only has the statutory authority to revoke the defendant's probation and impose a prison sentence—even reducing the original sentence. See TEX. FAM. CODE § 54.051(e-2); Hall v. State, 373 S.W.3d 168, 170 n.6, 173-74 (Tex. App.— Fort Worth 2012, pet. ref'd); see also Ex parte Elizalde, 594 S.W.2d 105, 106 (Tex. Crim. App. 1980) (op. on reh'g) (double jeopardy bars a conviction for the same act for which a juvenile has been adjudicated delinquent); Van Hatten v. State, 260 S.W. 581, 582 (Tex. Crim. App. 1924) (“[I]f a juvenile is proceeded against as a delinquent child . . . he cannot again be prosecuted by the state and convicted of a felony upon the identical offense upon which the delinquency conviction was predicated.”). It is true, however, that some juvenile adjudications or dispositions are considered “convictions” if expressly provided for by statute or caselaw. See e.g. TEX. FAM. CODE § 51.13(d) (juvenile adjudication on felony offense resulting in commitment “is a final felony conviction only for purposes of Sections 12.42(a), (b), and (c)(1) or Section 12.425, Penal Code”); TEX. FAM. CODE § 51.13(e) (adjudication for conduct in need of supervision “is a conviction only for the purposes of Sections 43.261(c) and (d), Penal Code”); TEX. GOV’T CODE § 508.156(f) (providing juvenile released from TYC on parole considered convicted of the offense for which juvenile was adjudicated); Ex parte Valdez, Grady v. State Page 3 401 S.W.3d 651, 655 (Tex. Crim. App. 2013) (TEX. GOV’T CODE § 508.156(f) includes those released from TDCJ on parole under a juvenile adjudication). Neither the State nor Grady have cited any statutory or case authority, and we have found none, which permits a juvenile adjudication under a probated determinate sentence, which was then transferred to and revoked by the adult court, to be used in stacking sentences pursuant to Texas Penal Code section 3.03. Thus, because the Juvenile Justice Code affirmatively states that juvenile adjudications are not convictions and the trial court could not convict Grady of the adjudicated offense when it revoked his probation, the trial court was without authority to order Count IX to run consecutively to Counts I-VIII pursuant to section 3.03(b)(2-a). Grady’s first issue is sustained. Grady suggests, however, that the remedy for the trial court’s error in this issue is complicated by his second issue. We do not agree with Grady. MODIFICATION OF COUNT NUMBERS In his second issue, Grady contends that because the numbering of the counts of aggravated sexual assault in the adult court do not correspond with the numbering of the counts in the adjudication order, we should either renumber Counts V–IX and modify the renumbered Counts VIII and IX or abate this appeal and remand the case to the trial court for a new sentencing Grady v. State Page 4 hearing. Originally, 13 counts of aggravated sexual assault were listed in the Judgment and Adjudication rendered by the juvenile court. Counts 5, 6, 11, and 12 were lined out and initialed by four sets of initials. Grady suggests that current Counts V–IX then became misnumbered in the adult system which must be corrected. Although we have the power to correct a judgment to make the record speak the truth when it has the necessary information to do so, see Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993), we do not consider the record for this matter to be untrue. It is clear that the juvenile court found Grady had committed nine counts of aggravated sexual assault of a child and placed him on “Determinate Sentence probation for a twelve (12) year sentence probated for ten (10) years.” It is also clear that three years later, the juvenile court waived its jurisdiction and transferred Grady’s case to a criminal district court so that Grady could remain on community supervision past his 18th birthday and until he completed his probationary period. From this record, we can presume that only those counts for which Grady was adjudicated delinquent, and no other counts, were transferred to the criminal district court. There is nothing in the record to suggest otherwise. Thus, the numbering of the counts in each of the trial court’s judgments need not be corrected. Grady’s second issue is overruled. Grady v. State Page 5 Consequently, pursuant to our disposition of Grady’s first issue, the trial court’s judgment in Count IX is therefore modified to delete the language: THE SENTENCE IN THIS CONVICTION SHALL RUN CONSECUTIVELY TO AND SHALL BEGIN ONLY WHEN THE JUDGMENT AND SENTENCE IN CAUSE NO. 2019-885-CL COUNT I – VIIL STYLED “THE STATE OF TEXAS V. JUAN ALVAREZ GRADY, IN THE 19TH DISTRICT COURT OF MCLENNAN COUNTY, TEXAS”, HAS CEASED TO OPERATE. and insert the language, “THIS SENTENCE SHALL RUN CONCURRENTLY.” COSTS Lastly, in issues three through five, Grady asserts that the trial court erred in its assessment of certain costs: the State Consolidated Costs fee, the DNA testing fee, and the Courthouse Security fee. The imposition of court costs is mandatory under article 42.16 of the Code of Criminal Procedure. TEX. CODE CRIM. PROC. art. 42.16; Martinez v. State, 507 S.W.3d 914, 916 (Tex. App.—Waco 2016, no pet.). However, the court may only impose those costs that are statutorily authorized. See Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014). There must also be a basis in the record for the assessment of a cost. See id. at 390; see also Wolfenbarger v. State, 581 S.W.3d 455, 459 (Tex. App.—Texarkana 2019, no pet.). Grady v. State Page 6 State Consolidated Cost Fee The current version of section 133.102(a) of the Local Government Code provides that “a person convicted of an offense shall pay as a court cost, in addition to all other costs: (1) $185 on conviction of a felony.” TEX. LOC. GOV’T CODE § 133.102(a). Grady asserts that he is not required to pay this cost because he was not “convicted.” For the purposes of this fee and other fees not at issue in this case, a person is considered “convicted” if the person receives community supervision. See TEX. LOC. GOV’T CODE § 133.101(2). This statute has been in effect since January 1, 2004. See id., Acts 2003, 78th Leg., ch. 209 (H.B. 2424), § 62(a), eff. Jan. 1, 2004. Grady received community supervision in the trial court. Accordingly, the consolidated cost fee provision applies to Grady. However, we agree that Grady should not be assessed $185 for this fee. Section 133.102 was rewritten in 2019, and the amount of the fee increased from $133 to $185. See Acts 2019, 86th Leg., ch. 1352 (S.B. 346), § 1.03, eff. Jan. 1, 2020. This increase applies only to a cost, fee, or fine on conviction for an offense committed on or after January 1, 2020, the effective date of the Act. Acts 2019, 86th Leg., Ch 1352 (SB 346), § 5.01. An offense committed before the effective date of the Act is governed by the law in effect on the date the offense was committed. Id. The dates of the offenses Grady Grady v. State Page 7 committed ranged from 2010 to 2016. Thus, the $185 fee does not apply to Grady’s offenses. Instead, the law in effect at the time Grady committed the offenses applies and sets the fee at $133. See enacted by Acts 2003, 78th Leg., ch. 209 (H.B. 2424), § 62(a), eff. Jan. 1, 2004. Accordingly, the fee assessed Grady should be reduced to $133. Grady’s third issue is sustained in part. DNA Testing Fee The relevant statute regarding the collection of DNA testing fees was article 102.020 of the Texas Code of Criminal Procedure. It was repealed in 2019 and 2021. See TEX. CODE CRIM. PROC. art. 102.020, repealed by Acts 2019, 86th Leg., ch. 1352 (S.B. 346), § 1.19(7), eff. Jan. 1, 2020; 2021, 87th Leg., H.B. 3607, § 4.019, eff. Sept. 1, 2021. Former article 102.020(a)(1) required a person convicted of an offense listed in section 411.1471(a)(1) of the Texas Government Code to pay a court cost of $250.00 for DNA testing. Id., enacted by Acts 2001, 77th Leg., ch. 1490, § 6, eff. Sept. 1, 2001. At the time Grady committed these offenses, aggravated sexual assault was listed as an offense in section 411.1471(a)(1). See TEX. GOV’T CODE § 411.1471(a)(1), enacted by Acts 2001, 77th Leg., ch. 1490 (S.B. 638), § 2, eff. Sept. 1, 2001; am. by Acts 2015, 84th Leg., ch. 221 (H.B. 941), §§ 4, 5, eff. Sept. 1, 2015. 2 2 Section 411.1471(a)(1) was rewritten in 2023 and as rewritten, applies only to an offense committed on or after the effective date of the Act. See Acts 2023, 88th Leg., ch. 543 (H.B. 3956), § 3, eff. Sept. 1, Grady v. State Page 8 The State argues that because, pursuant to Local Government Code section 134.002(b), a person is considered convicted if a judgment, sentence, or both were imposed on the person, or if the person received community supervision, Grady is “convicted” and must pay the fee. See TEX. LOC. GOV’T CODE § 134.002(b). We disagree with the State. Section 134.002 was added to the Local Government Code by the Legislature in 2019. See Acts 2019, 86th Leg., ch. 1352 (S.B. 346), § 1.05, eff. Jan. 1, 2020. It is applicable only to a cost, fee, or fine on conviction for an offense committed on or after the effective date of the Act. The Act became effective January 1, 2020, but Grady was adjudicated delinquent in 2016. Thus, the provisions of section 134.002 do not apply to Grady’s case. Accordingly, for the reasons set forth in Grady’s first issue and because no statute or case authority specifically includes a juvenile adjudication and disposition as a conviction for the purposes of this fee, the DNA testing fee is not required and should be deleted from the costs assessed Grady. Grady’s fourth issue is sustained. Courthouse Security Fee In his fifth issue, Grady complains that the Courthouse Security fee 2023. An offense committed before the effective date of the Act is governed by the law in effect on the date the offense was committed. See Acts 2023, 88th Leg., Ch. 543 (HB 3956), § 7. Because the dates of the offenses Grady committed ranged from 2010 to 2016, the former version of section 411.1471(a)(1) applies. Grady v. State Page 9 should be reduced to $5. The State agrees. Accordingly, Grady’s fifth issue is sustained. Remedy As previously stated, we have the authority to correct and reform a judgment to make the record speak the truth when we have the information to do so. See TEX. R. APP. P. 43.2(b) (authorizing court of appeals to "modify a trial court's judgment and affirm it as modified"); see also Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). We are also authorized to correct errors in a bill of costs independent of finding error in the trial court's judgment. See Briceno v. State, 675 S.W.3d 87, 100-101 (Tex. App.—Waco 2023, no pet.); Cummins v. State, 646 S.W.3d 605, 622 & n.12 (Tex. App.— Waco 2022, pet. ref’d) (citing Dulin v. State, 620 S.W.3d 129, 133 (Tex. Crim. App. 2021), and London v. State, 490 S.W.3d 503, 508 n.5 (Tex. Crim. App. 2016)). Accordingly, because each judgment only notes, “SEE BELOW” in the “Costs” section of the judgment, we need not modify the judgments; instead, we modify the Bill of Costs to reduce the State Consolidated Costs fee to $133, delete the DNA testing fee of $250 in its entirety, and reduce the Courthouse Security fee to $5. CONCLUSION Having sustained Grady’s first, third—in part, fourth, and fifth issues, Grady v. State Page 10 we affirm the trial court’s judgments for Counts I-VIII and affirm as modified the trial court’s judgment for Count IX. We also modify the Bill of Costs to reduce the State Consolidated Costs fee, delete the DNA testing fee in its entirety, and reduce the Courthouse Security fee. LEE HARRIS Justice OPINION DELIVERED and FILED: September 24, 2026 Before Chief Justice Johnson, Justice Smith, and Justice Harris Affirmed as modified Do Not Publish CR25 Grady v. State Page 11