ABAD v. STATE (2025)

OPINION

A jury found appellant Marcos Gomez Abad guilty of sexual assault of a child. See Tex. Pen. Code § 22.011(2). The trial court sentenced him to life in prison. In three issues appellant contends (1) the trial court erred by failing to adequately instruct the jury that its verdict must be unanimous; (2) the judgment improperly assessed a fine, failed to state the statute of the offense, and assessed unsupported fees; and (3) the bill of costs contains unsupported fees and a fine, and improperly requires costs to be paid immediately rather than when appellant is released from confinement.

We conclude the jury charge did not contain error and affirm the judgment of conviction. We modify the judgment to reflect the statute for the offense, deletion of the fine as it was not orally pronounced, and deletion of certain court costs as not supported by the record.

Background

In April 2019 when the complainant was 14 years old, she was going to bed and appellant, the complainant's mother's live-in boyfriend at the time, stopped the complainant and began touching and kissing her. The complainant then went to bed and closed her bedroom door. Appellant later came into the complainant's bedroom, sat on the bed, and began touching her on her breast and vagina. Appellant took the complainant off the bed and removed her clothes. The complainant testified that she could not remember exactly what happened, but appellant made her get on her knees and perform oral sex, and he also penetrated her vagina with his penis. Appellant then told the complainant that if she told anyone “everyone is going to get in trouble and you and your mom are going to end up homeless.”

The complainant did not report the incident to her mother until the next day because she was afraid of what appellant might do. The next morning appellant accompanied the complainant and her mother to the complainant's soccer game. When they returned home appellant touched the complainant's vagina again, this time over her clothes. The complainant took a shower, changed her clothes, and then told her mother what had happened. The complainant called the police and was subsequently transported to the hospital via ambulance.

Elizabeth Williams, the Sexual Assault Nurse Examiner (SANE), testified that the complainant and her mother reported at the hospital. The complainant told Williams that appellant came into her room around 1:00 in the morning while she was asleep. Appellant began touching the complainant under her T-shirt on her breast. He proceeded to keep touching her, getting closer to her vagina. Appellant reached inside her underwear, grabbed her by the legs, and re-positioned her. When the complainant tried to get away, appellant grabbed her legs again, then held her by the neck and forced her to perform oral sex. In the next portion of the nurse's records she recorded the complainant's report as follows: “Then he finished [oral sex] and he put it in my vagina, his penis. He put it in my butt and then back in my vagina.” Appellant then grabbed the complainant's neck and said if she “told anyone they would both be in trouble.” The nurse observed pinpoint bruises on the complainant's labia minora and hymen. There was also a bleeding, two-centimeter acute laceration on the perineum, which the nurse described as the area between the vagina and the anus. A DNA analyst testified that appellant's DNA was found on several items of the complainant's clothing.

The jury found appellant guilty of sexual assault of a child, and the trial court sentenced him to life in prison. This appeal followed.

Analysis

In three issues appellant contends (1) the trial court erred in failing to instruct the jury that their verdict must be unanimous; (2) the judgment improperly assesses a fine, fails to state the statute under which appellant was convicted, and assesses unsupported fees; and (3) the bill of costs includes the improper fine and unsupported fees and requires the costs to be payable immediately.

I. Jury Unanimity

In his first issue, appellant argues that because the complainant reported to the nurse more than one incident of vaginal penetration and because no instruction in the charge informed the jury that it had to unanimously find that appellant was guilty of the same incident, the verdict was not unanimous. See Cosio v. State, 353 S.W.3d 766, 772 (Tex. Crim. App. 2011). We review a complaint about error in the jury charge in two steps. We first determine whether error exists. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). If it does, we then analyze the error for harm. Id. There are separate standards for the harm analysis, depending on whether the defendant timely objected to the jury instructions. Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016). If the defendant timely objected, then reversal is required if there was some harm to the defendant. Id. If the defendant failed to timely object, then reversal is required only if the error was so egregious and created such harm that the defendant did not have a fair and impartial trial. Id.

Appellant was charged with a single count of sexual assault of a child as follows:

the Defendant, heretofore on or about April 28, 2019, did then and there unlawfully, intentionally and knowingly cause the penetration of the sexual organ of K.M., hereinafter called the Complainant, a person younger than seventeen years of age, by placing his male sexual organ in the sexual organ of the Complainant.

The trial court charged the jury as follows:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 28th day of April, 2019, in Harris County, Texas, the defendant, Marcos Gomez Abad, did then and there unlawfully, intentionally or knowingly cause the penetration of the sexual organ of K.M., a person younger than seventeen years of age, by placing his male sexual organ in the sexual organ of K.M., then you will find the defendant guilty of sexual assault of a child, as charged in the indictment.

The charge further explained, “Your verdict must be by a unanimous vote of all members of the jury.” Appellant did not object to the jury charge.

Jury unanimity is required in all criminal cases. See Ngo v. State, 175 S.W.3d 738, 745 (Tex. Crim. App. 2005). Unanimity means that “each and every juror agrees that the defendant committed the same, single, specific criminal act.” Id. at 745. Generally, “where one act of intercourse is alleged in the indictment and more than one act of intercourse is shown by the evidence in a sexual assault trial, the State must elect the act upon which it would rely for conviction.” O'Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1988). The court recognized in O'Neal that in single count, multiple transaction cases, the State is required to elect which transaction (act of intercourse) it would rely on to prove the single offense, and if the State fails to make such an election, a defendant may not have notice as to which of several acts he might have to defend. Id. at 772. However, the court also recognized an exception to the rule where several acts of intercourse were committed by one continuous act of force or threat, and are part of the same criminal transaction. Id. at 771. The exception “applies only where the evidence shows that several acts of intercourse were committed by one continuous act of force and threats that are ‘part and parcel of the same criminal transaction.’ ” Phillips v. State, 193 S.W.3d 904, 910 (Tex. Crim. App. 2006). Given the overlap between the law of election and law of jury unanimity, these cases provide support for our analysis of the jury charge. See generally Flores v. State, 513 S.W.3d 146, 154 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd) (discussing election cases in jury unanimity analysis).

Appellant asserts the trial court's charge allowed a non-unanimous verdict because the complainant described two acts of vaginal penetration to the SANE nurse. The State responds that the rule does not apply to this case when similar acts of penetration occur as part of the same criminal transaction or were committed by one continuous act of force or threat. The issue, therefore, is whether the State presented evidence of multiple but separate acts, or whether the acts were part of one continuous act of force or threat.

Here, the complainant testified that appellant penetrated her vagina with his penis. The SANE nurse's report stated that the complainant reported appellant penetrated her vagina, then her anus, then her vagina again. The complainant's testimony and the SANE nurse's testimony support a finding that both penetrations of the complainant's vagina occurred during a continuous act of force or threats. The acts as described by the complainant, either at trial or in her report to the nurse, evidence part of a single act of sexual assault rather than distinct and separate acts.

Citing Aekins v. State, 447 S.W.3d 270, 282 (Tex. Crim. App. 2014), and Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim. App. 2004), appellant asserts that the State presented evidence of two complete penis-to-vagina sexual assaults, and that the trial court was required to instruct the jury that their verdict must be unanimous as to one of those assaults. As discussed below, these cases do not support appellant's position.

In Patterson, the Court of Criminal Appeals was asked to address whether a conviction for indecency with a child by exposure was barred by double jeopardy when the defendant had also been convicted of aggravated assault by penetration. Patterson, 152 S.W.3d at 89. In that case, the complainant testified that the defendant got into her bed and penetrated her anus with his penis. Id. at 90. After a short time the complainant got out of bed, went to the bathroom, then returned to her bed. Id. When she returned, the defendant once again penetrated her anus with his penis. Id. The court held that the defendant sexually assaulted the complainant on two separate occasions during the night. Id. Under the facts of that case, the offense of indecency with a child by exposure was committed as part of the aggravated assault offense, thus, the indecency offense was not subject to prosecution as a separate offense. Id. at 92.

The facts in Aekins are similar to Patterson. The defendant in Aekins was convicted of penetration by finger, penetration by mouth, and contact by mouth. Aekins, 447 S.W.3d at 273. Conducting a double-jeopardy analysis, the Court of Criminal Appeals held that under the facts of that case the offenses of contact by mouth and penetration by mouth were committed by a single criminal act and that the defendant could be punished only once for that act. Id. at 283. The offense in Aekins was a single incident of sexual assault in which the defendant performed oral sex on the adult complainant and put his fingers inside her vagina against her will while she was babysitting the defendant's children. Id. at 273. The complainant immediately got up, left the house, and called the police. Id. Under such facts, the court concluded that “[t]wo convictions, based on a hypertechnical division of what was essentially a single continuous act, are barred under the Double Jeopardy Clause.” Id. at 283.

We conclude that the penetrations of the complainant's vagina by appellant's penis were so closely related that they form part of the same continuous course of conduct toward the same complainant and were not separate acts. See Phillips, 193 S.W.3d at 910 (applying exception to unanimity rule when several acts were part of the same criminal transaction). The trial court did not err in failing to give a specific unanimity instruction. We overrule appellant's first issue.

II. Judgment and Court Costs

In appellant's second and third issues he complains of several errors in the judgment and bill of costs. We address each complaint in turn.

A. Child Abuse Prevention Fine

Appellant was convicted of sexual assault of a child in violation of section 22.011 of the Penal Code. The Code of Criminal Procedure provides that a person convicted of an offense under section 22.011 shall pay a fine of $100. Tex. Code Crim. Proc. art. 102.0186. Appellant asserts the fine should not be assessed because the current version of article 102.0186 was not in effect at the time of the offense, and the fine was not pronounced in open court in his presence.

The State concedes the fine was not orally pronounced in appellant's presence and should be deleted from the judgment and the bill of costs. We agree. A fine is punitive in nature and is part of a defendant's sentence; as such, fines must be pronounced orally in the defendant's presence. Armstrong v. State, 340 S.W.3d 759, 767 (Tex. Crim. App. 2011); Tex. Code Crim. Proc. art. 42.03, § 1(a) (“sentence shall be pronounced in the defendant's presence”). Because the trial court did not orally pronounce the $100 fine in appellant's presence, we sustain this portion of his second issue and delete the $100 fine from the judgment. See Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004) (If there is a conflict between the oral pronouncement of a sentence and the written judgment, the oral pronouncement controls).

B. Statute for the Offense

Appellant next asserts that the judgment contains a clerical error because it does not list the statute for the offense for which he was convicted.

The Code of Criminal Procedure requires the Office of Court Administration of the Texas Judicial System to promulgate a standardized felony judgment form that includes several items as listed in article 42.01 § 1. Tex. Code Crim. Proc. art. 42.01 § 4. Article 42.01 also requires a court entering a felony judgment to use the promulgated form. Id. Of the required items, the statute of the offense is not among them, but the standardized form contains a blank for the “Statute for Offense.” In this case, it is undisputed that section of the form was left blank.

Appellant argues this omission is clerical and that we have authority to correct it on appeal. See Tex. R. App. P. 43.2(b) (“The court of appeals may modify the trial court's judgment and affirm it as modified.”); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (providing that the court of appeals has the authority to reform a judgment “to make the record speak the truth”). The State responds that the trial court did not err because the Code of Criminal Procedure does not require that the judgment reflect the statute that has been violated.

When faced with an identical issue, this court reformed the judgment to complete the missing field. Adaji v. State, No. 14-24-00645-CR, ––– S.W.3d ––––, ––––, 2025 WL 2044630, at *8 (Tex. App.—Houston [14th Dist.] July 22, 2025, pet. filed) (“Without deciding whether the trial court committed error, we reform the judgments to complete the missing fields.”). Following this court's binding authority, we sustain this portion of appellant's second issue and modify the judgment to reflect that the statute under which appellant was convicted is section 22.011 of the Penal Code.

C. Reimbursement Fees

Next, appellant challenges portions of the reimbursement fees assessed, including arrest fees, release fees, and witness-summoning fees. The trial court's judgment requires appellant to pay $290 in court costs and $865 in reimbursement fees. Appellant does not challenge the $290 in court costs.

Article 102.011 of the Code of Criminal Procedure provides that a defendant convicted of a felony or a misdemeanor shall pay reimbursement fees to defray the cost of services provided in the case by a peace officer. Pertinent to this case, some of the required fees include $5 fees for arrest, release, and witness summoning. See Tex. Code Crim. Proc. art. 102.011(a)(1), (3), (6).

Only statutorily authorized court costs may be assessed against a criminal defendant. Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014). The peace officer reimbursement statute has been classified as a mandatory cost. Id. While we do not review whether there was sufficient evidence offered at trial to prove each cost, we “may be asked to determine whether ‘the assessed court costs are supported by facts in the record.’ ” Ikemere v. State, 716 S.W.3d 179, 184 (Tex. App.—Houston [14th Dist.], 2025, no pet.) (quoting Johnson, 423 S.W.3d at 395).

The bill of costs reflects that appellant was charged a release fee of $15, arrest fee of $15, and summoning witness fee of $700. We address appellant's challenges to those fees by reviewing the record to determine whether the costs are supported by facts in the record.

1. Warrantless Arrest Fee

Appellant first contends that this court should delete five of the fifteen dollars assessed for an arrest reimbursement fee because the record supports an assessment of only $10 in warrantless arrest fees. Appellant asserts he was arrested twice without a warrant, which would support $10 in arrest fees, not $15. The record reflects that appellant was arrested on April 29, 2019, and his bond was set at $150,000. After appellant's bond was reduced to $70,000, he was released on March 9, 2020, but failed to appear on April 6, 2020. Appellant was remanded to custody on September 16, 2020, and a bond of $140,000 was set. The record does not show any further warrantless arrests.¹

In response, the State does not challenge appellant's assertion that he was only arrested twice. The State argues that each of the reimbursement fees are presumed correct if there is a legal basis for assessment of the fee. In other words, if there is a legal basis for the fee or cost, we only review the record to determine whether it affirmatively shows that no basis exists for assessing the fees. The State relies on an opinion from the First Court of Appeals that has since been withdrawn. See Sotelo v. State, No. 01-24-00562-CR, ––– S.W.3d ––––, ––––, 2025 WL 2312273, at *9 (Tex. App.—Houston [1st Dist.] Aug. 12, 2025, op. withdrawn). We are not bound by a withdrawn opinion from a sister court of appeals. We further conclude that the State's argument is contrary to binding authority from this court. See Adaji, ––– S.W.3d at ––––, 2025 WL 2044630, at *10; Ikemere, 716 S.W.3d at 184; Rhodes v. State, 676 S.W.3d 228, 233 (Tex. App.—Houston [14th Dist.] 2023, no pet.). Following this court's authority, we review the record to determine if the warrantless arrest fees are supported by the record.

The record reflects two warrantless arrests, which would support a reimbursement fee of $10, not $15. See Tex. Code Crim. Proc. art. 102.011(a)(1). The plain language of the statute requires assessment of the arrest fee for each arrest. See Guerra v. State, 547 S.W. 3d 445, 447 (Tex. App.—Houston [14th Dist.] 2018, no pet.). This court has not followed the approach urged by the State, but has modified a judgment and bill of costs to reflect the appropriate arrest fee when the record does not support the fee assessed. Id. We sustain this portion of appellant's second issue and modify the judgment and bill of costs to reduce the warrantless arrest fee to $10.

2. Commitment or Release Fee

Appellant next contends the court should delete $5 from the commitment or release fee. One of the costs assessed for the service of peace officers is “$5 for commitment or release.” Tex. Code Crim. Proc. art. 102.011(a)(6). This language refers to a defendant's commitment to and release from confinement. See Adams v. State, 431 S.W.3d 832, 838 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

Appellant was assessed $15 in commitment and release fees but argues he was released on bond only twice, which supports an assessment of a $10 fee. We disagree. Although the record reflects appellant was released twice on bond pending trial, the judgment also required a peace officer, upon appellant's conviction, to transfer appellant from the county jail to the Institutional Division of the Texas Department of Criminal Justice. Thus, a peace officer was required to release appellant into the custody of the prison system and appellant was properly assessed an additional $5 release fee. See Williams v. State, 495 S.W.3d 583, 592 (Tex. App.—Houston [1st Dist.] 2016, pet. dism'd as improvidently granted) ($5 fee for release after conviction to the prison system was supported by statute). We overrule this portion of appellant's second issue.

3. Witness-Summoning Fee

In the final portion of his second issue appellant contends the court should delete $520, which represents 104 witness-summoning fees of $5 each, because only 36 of the subpoenas in the record were validly served by a peace officer.

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. Tex. Code Crim. Proc. art. 102.011(a)(3). This fee is assessed for each witness each time the witness is summoned. Adaji, ––– S.W.3d at ––––, 2025 WL 2044630, at *10; see also Allen v. State, 614 S.W.3d 736, 745 (Tex. Crim. App. 2019) (“The legitimate purpose of the fee is satisfied as soon as the expenses are incurred by the peace officer performing the services.”).

In this case the trial court assessed a fee of $700 for summoning witnesses, which would be 140 summonses. This court has held that a defendant should not be charged witness-summoning fees when the record reflects that the summonses were not conducted pursuant to article 24.04 of the Code of Criminal Procedure. Adaji, ––– S.W.3d at ––––, 2025 WL 2044630, at *10. Article 24.04 provides a subpoena is served by:

(1) reading the subpoena in the hearing of the witness;

(2) delivering a copy of the subpoena to the witness;

(3) electronically transmitting a copy of the subpoena, acknowledgment of receipt requested, to the last known electronic address of the witness; or

(4) mailing a copy of the subpoena by certified mail, return receipt requested, to the last known address of the witness unless:

(A) the applicant for the subpoena requests in writing that the subpoena not be served by certified mail; or

(B) the proceeding for which the witness is being subpoenaed is set to begin within seven business days after the date the subpoena would be mailed.

Tex. Code Crim. Proc. art. 24.04(a).

The record contains 141 subpoenas and returns. Appellant asserts only 36 subpoenas were served pursuant to the statute. According to appellant there are 28 returns that are duplicates of other returns, eight returns that merely provide follow-up information for another return, and four subpoenas that have no return showing they were served.

Of the 137 remaining subpoenas with unique returns, appellant asserts three categories of subpoenas that were not validly served: (1) subpoenas that were not executed at all; (2) subpoenas that were not executed by a peace officer; and (3) subpoenas that were executed by a peace officer but were not validly served. We address each category in turn.

a. Subpoenas not executed

Appellant first contends that seven of the subpoenas were returned with the notation, “Un-Executed.” A return for the custodian of records for Harris County Child Protective Services was un-executed because there was no response to email. Three attempts to serve the complainant's mother were returned un-executed because personal service was attempted and no one answered the door. A return for a Harris County fingerprint examiner and another for a CPS employee were un-executed because those two individuals no longer worked for Harris County at the time service was attempted. Finally, service on a member of the Cy Fair Volunteer Fire Department was returned un-executed with the notation that no method of service was attempted.

This court has held that a return reciting that a subpoena was “unexecuted” does not validly support the $5 witness-summoning fee. Adaji, ––– S.W.3d at ––––, 2025 WL 2044630, at *10. We conclude therefore that the fees for these seven witnesses should not have been assessed.

b. Subpoenas executed by the District Attorney

Appellant next contends that 10 of the subpoenas that were executed were served by a district attorney and do not support a witness-summoning fee because they were not served by a peace officer. We agree. The record reflects that 10 subpoenas were executed by “a District Attorney,”² not by a peace officer. Article 102.011(a)(3) and (b) seek to reimburse the expenses and mileage actually incurred by peace officers in serving process on witnesses needed for a defendant's proceedings. See Tex. Code Crim. Proc. art. 102.011(a) (“A defendant convicted of a felony or a misdemeanor shall pay the following reimbursement fees to defray the cost of the services provided in the case by a peace officer.”) (emphasis added); see also Allen, 614 S.W.3d at 745. This court has held that subpoenas not served by a peace officer do not support a witness-summoning fee under article 102.011. Adaji, ––– S.W.3d at ––––, 2025 WL 2044630, at *10. We therefore conclude that the fees for these 10 subpoenas should not have been assessed against appellant.

c. Subpoenas that were executed by peace officers but otherwise do not support a witness-summoning fee

Finally, appellant asserts that 84 of the subpoenas were executed by peace officers but were not validly served under any of the four statutory methods. See Tex. Code Crim. Proc. art. 24.04.

i. Subpoenas not sent to the witness

We begin with a category of returns that appellant asserts do not support a witness-summoning fee because the returns reflect that service was directed toward someone other than the witness. This court held in Adaji that fees should not be assessed for subpoenas if service was not made on the witness. Adaji, ––– S.W.3d at ––––, 2025 WL 2044630, at *10 (citing Tex. Code Crim. Proc. art. 24.04(a)(2) (“A subpoena is served by delivering a copy of the subpoena to the witness.”)).

The record reflects 40 subpoenas issued to various Harris County employees, including the Sheriff's Office, the Constable's Office, and the Crime Laboratory in which service was attempted via email. The returns reflect that the emails were sent to and received by Harris County employees, but not those listed on the subpoena. The record further reflects two subpoenas in which email service was attempted on Elizabeth Williams, the SANE nurse who testified at trial, but the returns for those two subpoenas reflect they were received by another person. Finally, one return in which email service was attempted on another SANE nurse from Memorial Hermann Hospital reflects that it was received by an automatic reply service at the hospital.

Each of the 43 subpoenas listed above was directed toward a witness but the returns cite that service was made on another individual or organization. Because those subpoenas were not served on the witnesses, we conclude fees for those 43 summonses should not have been assessed.

ii. Faxed subpoenas

The record reflects three subpoenas were sent via fax to the records custodians for the Cy Fair Fire Department, Memorial Hermann Hospital, and Memorial Hermann Cypress Hospital. Two other returns reflect that subpoenas were faxed to Memorial Hermann Hospital employees. One return on a subpoena to the SANE nurse notes that it was un-executed and contains a note at the bottom instructing that future subpoenas to the nurse should be served to the Forensic Nursing fax number.

Appellant asserts these returns do not support the witness-summoning fee because they were not emailed pursuant to article 24.04, but were faxed. The Code of Criminal Procedure permits service of a subpoena by: “electronically transmitting a copy of the subpoena, acknowledgment 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; it permits electronic transmission. Without support, appellant argues the subpoenas do not support a witness-summoning fee because fax is not a valid method of service under the statute. We disagree.

Appellant has not directed us to authority interpreting article 24.04(a)(3) to exclude fax transmission from the definition of electronic transmission. Independent research has not revealed authority interpreting this section of the statute. When interpreting a statute we give effect to the plain meaning of the statutory text unless the application of a statute's plain language would lead to absurd consequences that the Legislature did not intend. See Nicholson v. State, 682 S.W.3d 238, 242 (Tex. Crim. App. 2024). “Electronic transmission” is not defined in the Code of Criminal Procedure. The Code provides that, unless “specially defined,” all words, phrases and terms used in the Code are to be “taken and understood in their usual acceptation in common language.” Tex. Code Crim. Proc. art. 3.01. To determine the word or phrase's usual acceptation in common language, we look to a wide variety of sources, including dictionary definitions, treatises and commentaries, our own prior constructions of the word in other contexts, a higher court's construction of the word, and the use and definitions of the word in other statutes. Jaster v. Comet II Const., Inc., 438 S.W.3d 556, 563 (Tex. 2014).

The use of the term “electronic transmission” or “electronic communication” in other statutes is instructive. The Penal Code defines “electronic communication” as “a communication initiated through the use of electronic mail, instant message, network call, a cellular or other type of telephone, a computer, a camera, text message, a social media platform or application, an Internet website, any other Internet-based communication tool, or facsimile machine.” Tex. Pen. Code § 42.07(b)(1-a)(A) (emphasis added). When addressing service of an order or judicial writ of withholding, the Family Code includes a “facsimile transmission” in its definition of “electronic transmission.” Tex. Fam. Code § 158.105(c).

Reviewing these uses of electronic transmission in other statutes, we conclude that the usual acceptation in common language of electronic transmission as used in article 24.04 for service of a subpoena includes service by fax. We therefore conclude that the trial court did not err in assessing witness-summoning fees for those subpoenas served via fax.

iii. Alleged defects in electronic service

Appellant next contends that 21 returns do not show any electronic address for the witness, three show only a fax number rather than an email address, and 10 reflect that the only email address listed was for someone other than the witness.

Appellant first contends that 21 subpoenas do not support a witness-summoning fee because an email address does not appear on the application, subpoena, or return. Article 24.04 permits electronic service to the witness's last known electronic address and requires the return of service to document the acknowledgment of receipt, but 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). Although a specific email address is not required by the statute, we review the record to determine whether acknowledgment of receipt of service was reflected on the returns.

Of the 21 subpoenas listed by appellant, six of the returns acknowledged that the email subpoena had been received. Three of the returns initially did not reflect receipt, but a subsequent return reflected receipt of the subpoena. Twelve of those returns did not comply with article 24.04(c) because the return did not acknowledge receipt of the email. We therefore conclude that the fees for these 12 subpoenas should not have been assessed against appellant because they do not reflect acknowledgment of receipt.

Appellant asserts that three of the subpoenas do not support a fee because the application contained a fax number for the witness rather than an email address. Nothing in the Code of Criminal Procedure requires the application for a subpoena to contain an email address. Article 24.03 requires the application to “state the name of each witness desired, the location and vocation, if known, and that the testimony of said witness is material to the State or to the defense.” Tex. Code Crim. Proc. art. 24.03(a). Appellant has not shown that failure to include an email address in the application violates the statute.

Appellant also asserts that 10 of the subpoenas contain an incorrect email address in either the application, subpoena, or return. As stated above, the statute does not require that an email address be listed, but does require the return to acknowledge receipt of the summons. Of the 10 subpoenas that appellant identifies as containing an incorrect email address, four do not comply with the statute because the returns do not reflect acknowledgment of receipt. We therefore conclude that the fees for these four subpoenas should not have been assessed against appellant.

Because we conclude that the fees should not have been assessed for the summonses described above, we sustain a portion of appellant's second issue and reduce the witness-summoning fees in this case from $700 to $300.

III. Bill of Costs

In appellant's third issue he asserts this court should modify the bill of costs because the bill (1) improperly includes costs in the first place; (2) improperly includes a fine; and (3) includes improperly assessed reimbursement fees. Appellant first argues that all costs should be deleted from the bill of costs because it conflicts with the judgment. The State responds that the bill of costs and judgment do not conflict. We agree with the State.

The judgment states, in part, that, “[u]pon release from confinement, the Court Orders Defendant to proceed without unnecessary delay to the District Clerk's office, or any other office designated by the Court or the Court's designee, to pay or arrange to pay any fine, court costs, reimbursement fees, and restitution due.” Tex. Code Crim. Proc. art. 42.15(b)(2) (allowing the trial court to order payment of costs at a later date).

A clerk's bill of costs is permitted pursuant to article 103.001 of the Code of Criminal Procedure, and its issuance makes the included costs payable under the same statute. Tex. Code Crim. Proc. art. 103.001. Article 103.001(a) provides that costs are not payable by the person charged with the cost until a written bill is produced, signed by the officer who is entitled to receive payment for the cost, and provided to the person charged with the cost. Citing this court's opinion in Jones v. State, 691 S.W.3d 671, 679 (Tex. App.—Houston [14th Dist.] 2024, pet. ref'd), appellant argues that “upon issuance, the bill of costs ‘obligates’ an appellant ‘to pay the items listed.’ ” We disagree.

In Jones, we held, “[b]ecause the bill of costs obligates appellant to pay the items listed, we reject the State's argument that we are without jurisdiction to modify the bills of cost in this case.” Id. Appellant, adding the phrase, “upon issuance,” argues that the costs are paid immediately when the bill of costs issues.

Nothing in article 103.001 or in the bill of costs in our record reflects that appellant is required to immediately pay the costs. A bill of costs becomes payable when it has been produced, signed, and provided to the person charged with the cost. Tex. Code Crim. Proc. art. 103.001(b). The bill of costs does not specify a timeline for paying costs. The bill of costs lists the amounts payable by appellant, and the judgment specifies when appellant must pay those amounts. The judgment may make those payments payable immediately upon the bill of costs being produced, signed, and provided to defendant or it may, as it did here, make those payments payable at a later date. Thus, there is no conflict between the bill of costs and the judgment. See Jones v. State, No. 14-24-00474-CR, 2025 WL 2446555, at *6 (Tex. App.—Houston [14th Dist.] Aug. 26, 2025, pet. ref'd) (not designated for publication) (concluding the bill of costs and judgment did not conflict).

The record in this case does not reflect that the trial court intended for appellant to make payments during his incarceration. We therefore conclude appellant is not obligated to pay the assessed costs and fees until he is released from confinement. We decline appellant's invitation to delete all costs, but modify the bill of costs, in accordance with the court's judgment, to include a statement that the assessed costs and fees are not payable by appellant until his release from confinement.

Appellant further asserts that the fine and reimbursement fees that are not supported by the record should be deleted from the bill of costs as well as the judgment. We agree. See Jones, 691 S.W.3d at 679 (the appellate court has jurisdiction to modify a bill of costs). We sustain that portion of appellant's third issue requesting deletion of the fine and reimbursement fees from the bill of costs.

Conclusion

We modify the judgment by specifying the statute for the offense is Penal Code section 22.011. We further modify the judgment to delete the $100 Child Abuse Prevention fine, and reduce the reimbursement fees from $865 to $460. We also modify the bill of costs to include a statement that the assessed costs and fees are not payable by appellant until his release from confinement, and delete the $100 fine; reduce the arrest without capias fee from $15 to $10; and reduce the witness-summoning fee from $700 to $300.

We affirm the judgment of conviction as modified.

FOOTNOTES

1.   The record reflects that appellant was subsequently arrested after violating bond conditions and a failure to appear warrant was issued. Appellant does not complain of the assessed fee for issuance of a capias warrant.

2.   The record does not reflect which individual from the District Attorney's Office attempted to serve the subpoenas because all 10 returns are unsigned.

Ken Wise, Justice