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supervision was revoked, and the court sentenced him to 10 years in prison in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