Marcus Johnson v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-25-00142-CR
No. 02-25-00144-CR
___________________________

MARCUS JOHNSON, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 16th District Court
Denton County, Texas
Trial Court Nos. F24-3486-16 and F24-3487-16

Before Kerr, Womack, and Walker, JJ.
Opinion by Justice Walker
OPINION

I. INTRODUCTION

Appellant Marcus Johnson was charged by indictment with two counts of

aggravated sexual assault of a child and three counts of aggravated sexual assault. See

Tex. Penal Code Ann. § 22.021. On the morning of his trial, Johnson pleaded guilty

before the trial court to all five counts. He waived his right to a jury trial as to the

matter of his guilt but requested that a jury assess his punishment. The trial court

accepted his pleas and found him guilty, and a jury was then empaneled to determine

his punishment. Johnson pleaded guilty before the jury, and following a punishment

trial, the jury assessed his punishment—for each count—at life imprisonment and a

$10,000 fine. The trial court sentenced Johnson in accordance with the jury’s verdicts

and ordered the sentences to run concurrently.

Johnson raises two issues on appeal. First, he argues that the trial court erred

by sentencing him “without first a finding of guilt by the jury.” Second, he contends

that the trial court erred by including the $10,000 fine for each count in the

judgments, including the fines in the bills of costs, prematurely assessing $15 time-

payment fees, and including items of cost that are not yet due and payable in the bills

of costs.

Because (1) the trial court adjudicated Johnson’s guilt before the imposition of

the jury’s assessed punishments and (2) the jury assessed a $10,000 fine for each

count, we will affirm the trial court’s judgments. But because both of the trial court’s

2
bills of costs are erroneous, we will modify them to delete the complained-of fines

and time-payment fees and to clarify that the itemized court costs and fees are not yet

due.

II. FACTUAL AND PROCEDURAL BACKGROUND

On the morning of October 21, 1993, a fifteen-year-old girl was dropped off by

a friend’s mother at North Lakes Park in Denton. While the girl sat in the park

waiting for her friends to arrive, a black male came up from behind her. The man

grabbed the girl, claimed that he had a gun, dragged her into a wooded area, and

sexually assaulted her. Following the sexual assault, the man explained that he had to

kill her, but the girl pleaded for her life. The man ultimately let the girl go, and she

went to her school and reported the sexual assault. She was transported to a hospital,

and a vaginal swab was collected. Spermatozoa were detected on the swab, and a

DNA profile was later obtained.1 Despite law enforcement’s efforts, the man

remained unidentified.

Nearly four years after the 1993 sexual assault, on September 9, 1997, a twenty-

six-year-old woman was at North Lakes Park while on her lunch break. As she was

walking along the park trail, a black male came up from behind her. The man grabbed

the woman and sexually assaulted her. Following the sexual assault, the man left the

park, and the woman located help. She was transported to a hospital, and her clothes

The DNA profile was not obtained until March 1998.
1

3
were collected by law enforcement. Spermatozoa were detected on the woman’s

clothes, and a DNA profile was obtained. Law enforcement discovered that the

DNA profile found on the woman’s clothes matched the DNA profile from the girl’s

vaginal swab. In November 1998, the DNA profile was entered into CODIS.2

Twenty-five years elapsed, and the man remained unidentified. In March 2023,

following law enforcement’s use of familial DNA testing on the DNA profile, the

daughter of the male assailant was identified.3 Law enforcement obtained her birth

certificate and discovered that Johnson was her father and that he had lived near

North Lakes Park at the time of the sexual assaults.

Law enforcement then located Johnson in Las Vegas, Nevada and requested

the FBI’s assistance. The FBI began surveilling Johnson, and in May 2023, FBI

special agents followed him to a golf course. Posing as golfers, special agents

accompanied Johnson throughout the course and observed him repeatedly drinking

from an orange Gatorade bottle. Johnson eventually discarded the bottle in a public

trash can, and special agents retrieved it.

“CODIS” stands for “Combined DNA Index System.” Segundo v. State,
2

270 S.W.3d 79, 83 n.3 (Tex. Crim. App. 2008); see also Tex. Gov’t Code Ann.
§ 411.141(1) (“‘CODIS’ means the FBI’s Combined DNA Index System” and
“includes the national DNA index system sponsored by the FBI”).
3
During the case’s pendency, law enforcement was awarded a “Sexual Assault
Kit Initiative” grant, which allowed them to explore new investigative techniques in
unsolved cases. Here, the grant funded genealogical genetic testing on the DNA
profile found on the woman’s clothes.

4
A swab was taken from the bottle and compared to the previously obtained

DNA profile from the woman’s clothing. The DNA report from the bottle swab

showed that “the probability of obtaining this mixture profile, if the DNA came from

the [woman] and Marcus Johnson, is 1.69 octillion times greater than the probability

of obtaining the profile if the DNA came from the [woman] and one unrelated

unknown individual.”

Following the DNA report from the bottle, both cases were presented to a

grand jury, which indicted Johnson for the October 1993 sexual assault and the

September 1997 sexual assault.4 Johnson was arrested, and law enforcement, pursuant

to a search warrant, collected a buccal swab from him. The buccal swab was

submitted for analysis and comparison to the DNA profile from the woman’s

clothing. The DNA report from the buccal swab showed that the “probability of

obtaining the mixture profile, if the DNA came from the [woman] and Marcus

Johnson, is 2.35 octillion times greater than the probability of obtaining the profile

from the [woman] and one unrelated, unknown individual.”

Johnson’s cases were set for trial. On the morning of his trial—prior to voir

dire—his trial counsel informed the trial court that Johnson intended to plead guilty

to all five counts and wanted to have a jury assess his punishment. Johnson had

4
In trial cause number F24-3486-16—the October 1993 assault—Johnson was
indicted for two counts of aggravated sexual assault of a child. See Tex. Penal Code
Ann. § 22.021. In trial cause number F24-3487-16—the September 1997 assault—he
was indicted for three counts of aggravated sexual assault. See id.

5
previously filed an election to have a jury assess his punishment and an application for

community supervision. The trial court then admonished Johnson, determined that

he was competent, determined that the waiver and pleas were freely and voluntarily

given, read all of the counts in both indictments, and accepted a plea of guilty from

him to each count in each indictment. Johnson then signed a written waiver of a jury

trial as to guilt, a judicial confession and guilty plea, and a request for a jury to assess

his punishment in each case.

The trial court signed the waiver, found Johnson competent, approved the

waiver, found that his pleas and waiver were freely and voluntarily given, accepted his

pleas of guilty, and found him guilty. A jury was empaneled to determine Johnson’s

punishment, and he pleaded guilty before the jury. The State and the defense

presented evidence, and the trial court charged the jury on punishment for each case.

Both charges informed the jury that Johnson had pleaded guilty, had persisted

in pleading guilty notwithstanding the trial court’s admonishments, and appeared to

be mentally competent and that his pleas had been accepted by the trial court. After

instructing the jury on the appropriate punishment ranges, the trial court informed the

jury that it was its duty to set the punishment that should be assessed against

Johnson.5

The trial court’s jury charges asked questions of punishment only.
5

6
For each count, the jury assessed Johnson’s punishment at life imprisonment

and a $10,000 fine. The trial court sentenced him accordingly and ordered the

sentences to run concurrently. The trial court’s written judgments stated, among

other things, “JUDGMENT OF CONVICTION BY COURT—WAIVER OF

JURY TRIAL,” “PUNISHMENT ASSESSED BY JURY RECEIVE LIFE IN TDCJ

/ $10,000 FINE PER EACH COUNT,” and “THIS SENTENCE SHALL RUN:

CONCURRENTLY.” Both written judgments also directed Johnson to pay court

costs and fees after his release from confinement.

In trial court cause number F24-3486-16, the bill of costs aggregated the

$10,000 fines for each of the two counts, reflecting a general fine of $20,000. In trial

court cause number F24-3487-16, the bill of costs likewise aggregated the $10,000

fines for each of the three counts, reflecting a general fine of $30,000. Each bill of

costs also contained a time-payment fee of $15 but did not contain language that the

court costs were not due until Johnson’s release from confinement.

Johnson filed these appeals.

III. DISCUSSION

A. THE VERDICTS

In his first issue, Johnson claims that the record is “devoid of a finding of

guilt” and that he was “sentenced to [l]ife imprisonment with no finding of guilt prior

to those sentences being imposed.” Consequently, he contends that his constitutional

and statutory rights were violated. See U.S. Const. amends. V, VIII, XIV; Tex. Code

7
Crim. Proc. Ann. arts. 1.04, 1.09. In the alternative, he asserts that the trial court

erred by failing to instruct the jury to find him guilty.

Johnson’s assertions—that he was sentenced without a finding of guilt and that

his constitutional and statutory rights were violated—are unfounded and without

merit. Because he has seemingly overlooked the record, we will recount the sequence

of events that led to the trial court’s adjudication of his guilt and the jury’s assessment

of his punishment.

1. Sequence of Events

On the morning of his trial—prior to voir dire and the jury’s empanelment—

Johnson pleaded guilty before the trial court to every count in both cases. The

following exchange ensued between the trial court and Johnson:

THE COURT: All right. Mr. Johnson, you understood that you had a
right to a jury trial for both the guilt/innocence phase of this trial as well
as the punishment phase, correct?

THE DEFENDANT: Yes, ma’am.

THE COURT: And you have, in fact, waived your right to have a jury
determine whether or not you were guilty or not guilty of these charges
as contained in these two indictments; is that correct?

THE DEFENDANT: Yes, ma’am.

THE COURT: And you made that decision after having consulted with
your counsel and understanding the consequences of not having a jury
determine whether or not you’re guilty?

THE DEFENDANT: Yes, ma’am.

8
THE COURT: You understand that a jury could hear the facts of this
case and determine based on the evidence that you are not guilty of
these offenses that have been alleged in the indictments?

THE DEFENDANT: Yes, ma’am.

THE COURT: And you have waived your right to a jury determination
of those issues, and you wish to proceed to a jury trial on the issue of
punishment only; is that correct?

THE DEFENDANT: Yes, ma’am.

THE COURT: And have you freely and voluntarily given up your right
to have a jury trial with respect to the guilt/innocence phase of the trial?

THE DEFENDANT: Yes, ma’am.

Thereafter, the trial court brought in the venire panel for voir dire and

explained to the panel that

[t]he Defendant in this case has already pled guilty to these charges. And
so a jury that will be [empaneled] in this case will only be tasked with
assessing punishment as to these two cases.

You will still hear a lot of evidence, but the issue of whether or not a
person is guilty or not will not be something that the jury that is
[empaneled] in this case will be asked to decide. They will only be asked
to decide the punishment.

The State then began its voir dire and explained that “[i]n this particular case,

we’re not going to have a guilt/innocence phase. The Defendant pled guilty.”6

Following the State’s voir dire, the venire panel was excused for lunch. Sometime

during the lunch break, Johnson signed written plea admonishments—containing a

6
The State limited its voir dire to questions regarding a punishment trial.

9
waiver of jury as to guilt, guilty plea, and request for a jury to assess punishment—in

which he admitted and judicially confessed that he was guilty of the charged offenses.

The written plea admonishments memorialized that Johnson had “in writing, and in

open court waive[d] the right to trial by jury as to the matter of guilt only and

request[ed] the Court to consent to and approve this waiver.” Johnson, his trial

counsel, the State, and the trial court signed the plea admonishments. The trial court’s

portion of the admonishments read:

It clearly appearing to the Court that the Defendant is mentally
competent and is represented by competent counsel and that said
Defendant understands the nature of the charge against the Defendant
and that the Defendant has been warned by the Court of the
consequences of the plea entered herein including the minimum and
maximum punishment provided by law, that the Defendant, attorney for
Defendant and the attorney for the State consent to and approve the
waiver of trial by jury. The Court, therefore, consents to and approves
the Defendant’s waiver of jury as to the matter of guilt only in this cause
and finds such plea, and all waivers, agreements and consents contained
herein to be freely and voluntarily made, and accepts the Defendant’s
plea of GUILTY.

The trial court then once more addressed Johnson’s pleas, explaining that it

was concerned that it had “missed something earlier” when it had initially taken his

guilty pleas.

[THE COURT]: Previously, you entered your guilty plea as to all of the
counts in both of these causes of action, correct?

THE DEFENDANT: Yes, ma’am.

THE COURT: All right. And you waived your right to a jury trial on
the guilt/innocence portion of trial, correct?

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THE DEFENDANT: Yes, ma’am.

THE COURT: And you gave up that right freely and voluntarily,
correct?

THE DEFENDANT: Yes, ma’am.

THE COURT: And you understand that you do still have the right to
appeal your -- any sentence that this jury might hand down?

THE DEFENDANT: Yes, ma’am.

THE COURT: All right. The Court will find that you have freely and
voluntarily entered your plea of guilt as to each of the counts in the
causes of action that are before the Court. Does the State have any
evidence as to the guilt of Mr. Johnson?

[THE STATE]: Yes. We would offer into evidence the Defendant’s
judicial confession. It’s in the signed documents that he signed.

THE COURT: Yes. And the Court does have that. And it has been
bench filed. And so the Court will find that the evidence substantiates
Mr. Johnson’s plea of guilt in Cause Number F24-3487-16 and Cause
Number 24-3486-16, and will find him guilty of the offenses as charged in those
indictments.[7]

Aggravated sexual assault, Counts I and Counts II in Cause Number
3486, and aggravated sexual assault Counts I, II, and [III] in Cause
Number F24-3487-16. Having found Mr. Johnson guilty of both cause numbers
and those counts contained therein, the Court will hold his bond insufficient.

[Emphasis added.]

When the venire panel returned from lunch, Johnson’s counsel conducted her

voir dire and reiterated that “Mr. Johnson has pled guilty to both of the cases here.

7
The written judgments also evidence that the trial court adjudicated Johnson’s
guilt. Each written judgment provides: “JUDGMENT OF CONVICTION BY
COURT—WAIVER OF JURY TRIAL.”

11
It’s y’all’s job, like Judge said, to assess punishment in your range . . . .”8 After the

defense’s voir dire, the parties made their strikes, and the trial court empaneled and

swore in the jury.

The following morning, the trial court explained to the jury that “the

punishment phase of this trial is what you will be considering, hearing evidence for,

and rendering a verdict on.” In the presence of the jury, the State read the

indictments for both cases, and for each count, Johnson again pleaded guilty.

At the close of punishment, the trial court charged the jury on questions of

punishment only, to which Johnson did not object, and the first page of the charge in

trial court cause number F24-3486-16 read:9

The Defendant, MARCUS JOHNSON, is charged with the offense
Aggravated Sexual Assault (Counts I and II), alleged to have been
committed in Denton, County, Texas, on or about the 21st day of
October, 1993. To this charge the Defendant has pled GUILTY.

He has persisted in entering his plea of guilty, notwithstanding that the
Court, as required by law, has admonished him of the consequences. It
plainly appearing to the Court that the defendant is mentally competent,
and that he is not influenced to make said plea by any consideration of

Like the State, Johnson’s counsel limited her voir dire to questions regarding a
8

punishment trial.
9
The language in the jury charge in trial court cause number F24-3487-16
mirrored that found in F24-3486-16 but was tailored to its related indictment: “The
defendant, MARCUS JOHNSON, is charged with the offense Aggravated Sexual
Assault (Counts I, II and III), alleged to have been committed in Denton County,
Texas, on or about the 9th day of September, 1997. To this charge the Defendant has
pled GUILTY.”

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fear, persuasion, or any delusive hope of pardon prompting him to
confess his guilt, his plea is by the Court received.

...

It now becomes your duty to set the punishment which should be
assessed against this Defendant.

The jury returned its verdicts, and for each count, it assessed Johnson’s

punishment at life imprisonment and a $10,000 fine.

2. Findings of Guilt

Johnson contends that his constitutional and statutory rights were violated

because the jury did not make findings of guilt. In support of this contention, he cites

Article 1.15 of the Texas Code of Criminal Procedure, which provides that

[n]o person can be convicted of a felony except upon the verdict of a
jury duly rendered and recorded, unless the defendant, upon entering a
plea, has in open court in person waived his right of trial by jury in
writing in accordance with Articles 1.13 and 1.14; provided, however,
that it shall be necessary for the state to introduce evidence[10] into the
record showing the guilt of the defendant and said evidence shall be
accepted by the court as the basis for its judgment . . . .

Tex. Code Crim. Proc. Ann. art. 1.15.

Johnson grounds his complaint in the initial half of the first sentence of

Article 1.15—that he cannot “be convicted of a felony except upon the verdict of a

10
“A judicial confession, standing alone, is sufficient to sustain a conviction
upon a guilty plea and to satisfy the requirements of [A]rticle 1.15 so long as the
judicial confession covers all of the elements of the charged offense.” Dowden v. State,
455 S.W.3d 252, 255 (Tex. App.—Fort Worth 2015, no pet.) (citing Menefee v. State,
287 S.W.3d 9, 13 (Tex. Crim. App. 2009)).

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jury duly rendered and recorded.” Id. However, he neglects the text that follows the

comma—“unless the defendant, upon entering a plea, has in open court in person

waived his right of trial by jury in writing.” Id.

Contrary to Johnson’s claim that “[t]here is no finding of guilt in either of the

matters pending before this Court,” the record assuredly contains an adjudication of

his guilt. Prior to the jury’s empanelment, Johnson waived his right of trial by jury in

writing “as to the matter of guilt only,” and the trial court found “that the evidence

substantiate[d his] plea of guilt in Cause Number F24-3487-16 and Cause Number 24-

3486-16[ ] and . . . [found] him guilty of the offenses as charged in those indictments.”

[Emphasis added.] The record is clear: Johnson unequivocally waived—as evidenced

by the written and oral plea admonishments—his right to have a jury determine his

guilt, and the trial court adjudicated his guilt.11 See Villela v. State, 564 S.W.2d 750, 751

(Tex. Crim. App. [Panel Op.] 1978) (holding that trial court had implicitly found guilt

by its actions and that they, therefore, supported the written judgment).

This is not a case where a defendant initially pleaded guilty before the jury or

changed his plea during trial from not guilty to guilty, distinguishing the facts of this

case from those in In re State ex rel. Mau v. Third Ct. of Appeals, 560 S.W.3d 640, 647

(Tex. Crim. App. 2018). In Mau, the appellant did not waive his right to a jury trial,

11
Johnson has not alleged that his pleas were not in accordance with Articles
1.13 and 1.14 of the Texas Code of Criminal Procedure. See id. arts. 1.13 (waiver of
trial by jury), 1.14 (waiver of rights).

14
and the State never gave written consent to his waiving a jury trial. Id. at 642. The

case therefore proceeded to a jury trial on the appellant’s plea of not guilty. Id. “A

jury was selected, sworn, [and] seated and testimony was initiated. During the course

of that testimony, the [appellant] elected to change his plea[,] and he did enter on the

record in front of the jury a plea of guilty to the charge.” Id. at 643. “The trial court

then instructed the jury to return a guilty verdict predicated upon the [appellant’s]

guilty plea, which the jury did.” Id. at 642. The Court of Criminal Appeals explained

that in such a scenario, “the appropriate procedure is to instruct the jury to return a

guilty verdict.” Id. at 645 n.8.

Unlike the appellant in Mau, from the very inception of his trial, Johnson

pleaded guilty before the trial court, and the trial court adjudicated his guilt on each

and every count. Here, because the trial court had found Johnson guilty prior to the

jury’s empanelment, his guilt was never at issue before the jury.12 Accordingly, we

hold that Johnson’s constitutional and statutory rights were not violated.

We note that while this procedure is infrequently raised on appeal, it is not
12

novel in practice, and we have found no such authority that prohibits it. See, e.g.,
Guerrero v. State, No. 11-96-00143-CR, 1998 WL 34193658, at *1 (Tex. App.—
Eastland Aug. 26, 1998, pet ref’d) (not designated for publication) (“At the hearing on
appellant’s plea, the trial court further admonished appellant, found appellant’s plea to
be voluntary, accepted the plea, and found appellant guilty. The trial court also noted
that appellant desired to have a jury assess his punishment. Subsequently, a jury was
impaneled to assess appellant’s punishment.”).

Although a criminal defendant has no constitutional right to have a jury
determine punishment, Barrow v. State, 207 S.W.3d 377, 380 (Tex. Crim. App. 2006),
he does have the statutory right in Texas to elect to have a jury assess his punishment,

15
With respect to his alternative complaint that the trial court failed to instruct

the jury to find him guilty, we conclude that the trial court did not err in its jury

charge. The trial court must “deliver to the jury . . . a written charge distinctly setting

forth the law applicable to the case.” Tex. Code Crim. Proc. Ann. art. 36.14; see

Sanchez v. State, 376 S.W.3d 767, 773 (Tex. Crim. App. 2012). The trial court is

responsible for the accuracy of the charge and accompanying instructions. Delgado v.

State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007). Appellate review of purported

jury charge error involves a two-step process. Kirsch v. State, 357 S.W.3d 645, 649

(Tex. Crim. App. 2012). We initially determine whether the jury instruction is

erroneous. Id. Then, if error occurred, we must analyze the error for harm. Id.

Johnson has cited no authority—nor have we found any—for the proposition

that when a trial court has adjudicated a defendant’s guilt before empaneling a jury, it

must then instruct that jury to make a duplicative finding of guilt. As we discussed

above, Johnson’s guilt was never at issue before the jury. We thus conclude that the

see Tex. Code Crim. Proc. Ann. arts. 26.14, 37.07, § 2(b). “Where a defendant in a
case of felony persists in pleading guilty or in entering a plea of nolo contendere, if the
punishment is not absolutely fixed by law, a jury shall be impaneled to assess the
punishment.” Id. art. 26.14. Here, Johnson persisted in his pleas of guilty and did not
waive his statutory right to have a jury assess his punishment. The written plea
admonishments explicitly limited his jury-trial waiver to the matter of his guilt, and he
repeatedly requested for a jury to assess his punishment. Moreover, as evidenced by
the plea admonishments, the State and trial court alike consented and approved
Johnson’s request for a jury to assess his punishment. And following the trial court’s
adjudication of Johnson’s guilt, the State did not object to a jury’s assessing his
punishment. Thus, while recognizing the uncommon nature of the sequence of
events in this case, we see no irregularity in the procedure followed by the trial court.

16
trial court did not err by failing to instruct the jury to return a guilty verdict because it

was not “law applicable to the case” for punishment purposes. See Eberhardt v. State,

437 S.W.3d 582, 583 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (holding it

was not error, much less reversible error, when no such instruction was given).

Because there are findings of guilt by the trial court, we reject Johnson’s argument

that the trial court erred by failing to instruct the jury to find him guilty.13

But even if a duplicative finding of guilt by the jury was required, Johnson’s

claim nonetheless lacks merit.14 It is well established that when a defendant has

pleaded guilty to a felony before a jury, no issue of guilt remains for the factfinder to

determine. Holland v. State, 761 S.W.2d 307, 313 (Tex. Crim. App. 1988); see In re State

ex rel. Tharp, 393 S.W.3d 751, 757 (Tex. Crim. App. 2012) (a plea of guilty to a jury

eliminates guilt as an issue to be determined). For purposes of due process, a plea of

guilty substitutes for a jury verdict of guilt and is itself a conviction. Fuller v. State,

253 S.W.3d 220, 227 (Tex. Crim. App. 2008). Like a jury’s verdict, a plea of guilty is

Because we hold that the trial court’s jury charges were not erroneous, we do
13

not proceed to the second step to analyze the alleged error for harm. Kirsch,
357 S.W.3d at 649.
14
Citing to Article 37.07 of the Texas Code of Criminal Procedure, Johnson
argues that the trial court erred by sentencing him without a guilty verdict from the
jury. See Tex. Code Crim. Proc. Ann. art. 37.07. However, his reliance on
Article 37.07 is misplaced. Article 37.07, authorizing a separate hearing on
punishment, is applicable only to pleas of not guilty before a jury and has no
application where the defendant waives his trial by jury and enters a plea of guilty
before the trial court. Morales v. State, 416 S.W.2d 403, 405 (Tex. Crim. App. 1967).

17
conclusive and nothing more is required but to give judgment and sentence. Id.

“When a defendant pleads guilty to a jury, the jury need not return any verdict of

guilty. The case simply proceeds with a unitary punishment hearing.” Id. Because

Johnson also pleaded guilty before the jury, we conclude that no further finding of

guilt by the jury was required.

Accordingly, because his guilt was adjudicated by the trial court prior to the

imposition of the jury’s sentences, we hold that Johnson’s constitutional and statutory

rights were not violated and that the trial court’s jury charges were not erroneous.

And even if a subsequent finding of guilt was required, we hold that Johnson’s guilty

pleas before the jury were themselves convictions and thus dispensed with any need

for the jury to have returned express guilty verdicts.15 See Fuller, 253 S.W.3d at 227.

Even in that alternative scenario, we hold that the trial court’s sentencing did not

violate Johnson’s constitutional and statutory rights.

We overrule Johnson’s first issue.

15
We note that even though Johnson’s guilt—by way of his pleas and judicial
confession—was conclusive, the trial court’s charges demonstrate that the jury also
made findings of guilt. The trial court’s charges instructed the jury that it had received
Johnson’s pleas of guilt, and each verdict form stated, “We, the jury, having found the
Defendant, [Marcus Johnson], guilty . . . .” Thus, the charges effectively instructed
the jury on Johnson’s guilt, and the available verdict forms required the jury to make a
finding of guilt. In any event, not only did the trial court find him guilty but evidently
the jury attempted to do the same by making findings of guilt as well.

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B. FINES AND BILLS OF COSTS

Johnson’s second issue substantively consists of four sub-issues related to the

imposed fines and the contents of the bills of costs. In his first sub-issue, Johnson

maintains that, because his sentences were ordered to run concurrently, the trial court

erred by entering a fine for each count and that the judgments should be reformed to

reflect a unitary fine. In his second through fourth sub-issues, Johnson contends that

the bill of costs in each case erroneously (1) includes the assessment of the fines and

(2) includes the assessment of a time-payment fee and “fail[s] to include [(3)] language

in conformity with the delayed payment option set forth in both judgments.” The

State (1) argues that “despite the fines running concurrently, the judgments should not

be reformed” but (2) concedes that both bills of costs should be modified to delete

the fines, strike the time-payment fee, and include a statement showing that the court

costs are not due until Johnson is released from confinement. We agree with the

State on each sub-issue.

1. Concurrent Fines in the Judgments

In his first sub-issue, Johnson challenges the trial court’s inclusion of all the

jury-imposed fines in the written judgments.

“A fine is punitive in nature and is part of a defendant’s sentence.” Anastassov

v. State, 664 S.W.3d 815, 822 (Tex. Crim. App. 2022); see Armstrong v. State, 340 S.W.3d

759, 767 (Tex. Crim. App. 2011). “[T]he concurrent sentences provision of Section

3.03(a) [of the Texas Penal Code] applies to the entire sentence, including fines.” State

19
v. Crook, 248 S.W.3d 172, 177 (Tex. Crim. App. 2008). Therefore, in concurrent

sentences, the fines “discharge in the same manner as concurrent terms of

confinement—the defendant pays the greatest amount of the fine but receives credit

for satisfying all of the multiple concurrent fines.” Anastassov, 664 S.W.3d at 822.

Here, the trial court’s judgments provide that Johnson’s sentences shall run

concurrently. Consequently, Johnson maintains that the “judgments should be

reformed by this court to reflect the proper amount.” In other words, because the

judgments reflect a $10,000 fine for each count, Johnson requests this court to delete

his concurrent multiple $10,000 fines to reflect a single unitary fine of $10,000. The

law does not support his request.

The $10,000 fines in these cases were part of the sentences properly assessed

by the jury and rendered by the trial court, were within the permissible range of

punishment, and were thus required to be included in the written judgments. See Tex.

Code Crim. Proc. Ann. art. 42.01, § 1(9). Nothing about the fact that Johnson’s fines

are to be discharged concurrently changes this. Contrary to Johnson’s argument, the

trial court’s inclusion of the concurrent fines in the judgments was not erroneous and

did not improperly signal that the fines will be discharged consecutively. The trial

court’s judgments in this case properly reflect that Johnson’s sentences—including the

fines—shall be served “concurrently,” thereby signaling that the fines will be

discharged jointly. See Crook, 248 S.W.3d at 177; Tex. Penal Code Ann. § 3.03(a).

Therefore, we lack the authority to alter the jury’s lawful verdicts by deleting or

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modifying the $10,000 fines from the judgments. See Anastassov, 664 S.W.3d at 822.

Accordingly, we overrule Johnson’s first sub-issue.

2. The fines should not have been included in the bills of costs

In his second sub-issue, Johnson contends that the bills of costs improperly

include the $10,000 fines. The State has conceded the mistake.

A bill of costs must contain “items of cost.” Tex. Code Crim. Proc. Ann.

art. 103.001(b). Unlike the items of cost typically included in a bill of costs, which are

nonpunitive and are intended to recoup judicial resources expended in connection

with the trial of the case, fines are punitive and constitute part of a convicted person’s

sentence. See Armstrong, 340 S.W.3d at 767; Anastassov, 664 S.W.3d at 823 (“A fine is

not a court cost or fee; it is part of the punishment.”).

Because fines are fundamentally different from court costs, they should not be

included in the bill of costs. See Williams v. State, 495 S.W.3d 583, 591 (Tex. App.—

Houston [1st Dist.] 2016) (op. on reh’g), pet. dism’d, improvidently granted, No. PD-0947-

16, 2017 WL 1493488 (Tex. Crim. App. Apr. 26, 2017); see also Cornelio v. State, No. 12-

24-00279-CR, 2025 WL 657302, at *2 (Tex. App.—Tyler Feb. 28, 2025, no pet.)

(mem. op., not designated for publication).

Accordingly, we sustain Johnson’s second sub-issue and modify each bill of

costs to delete all the fines. See Pruitt v. State, 646 S.W.3d 879, 883 (Tex. App.—

Amarillo 2022, no pet.) (holding that a court of appeals has authority “to modify a bill

of costs independent of finding an error in the trial court’s judgment”); see also Jones v.

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State, 691 S.W.3d 671, 679 (Tex. App.—Houston [14th Dist.] 2024, pet. ref’d)

(rejecting State’s argument that the court of appeals lacked jurisdiction to modify bills

of costs). Johnson nevertheless remains obligated to pay the unitary $10,000 fine as

set forth in the judgments of conviction. See Williams, 495 S.W.3d at 591.

3. The time-payment fee was prematurely assessed

In his third sub-issue, Johnson contends that the time-payment fee was

prematurely assessed and should be deleted from both bills of costs. The State has

conceded the error.

The Texas Code of Criminal Procedure requires a person convicted of an

offense to pay a $15 reimbursement fee if the person fails to pay any part of a fine,

court costs, or restitution within thirty days after the entry of a judgment ordering

such payment. See Tex. Code Crim. Proc. Ann. art. 102.030. However, a pending

appeal suspends a convicted person’s duty to pay fines, court costs, and restitution

because the duty to pay is triggered only by a final judgment. Dulin v. State,

620 S.W.3d 129, 133 (Tex. Crim. App. 2021). Thus, the pendency of an appeal “stops

the clock” for purposes of the time-payment fee. Id. Accordingly, if a trial-court clerk

assesses a time-payment fee before the issuance of the appellate mandate, such

assessment is premature. Id.; Pruitt, 646 S.W.3d at 886.

Here, Johnson filed his notice of appeal on May 9, 2025, and the trial-court

clerk assessed the time-payment fee in its bills of costs on June 4, 2025. In light of the

authorities cited above, we agree with Johnson and the State that the time-payment

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fee was prematurely assessed. See Tex. Code Crim. Proc. Ann. art. 102.030; Dulin,

620 S.W.3d at 133; Pruitt, 646 S.W.3d at 886. Accordingly, we sustain Johnson’s third

sub-issue and modify both bills of costs to delete the time-payment fees. See Jones,

691 S.W.3d at 679; Pruitt, 646 S.W.3d at 883. Our ruling is without prejudice to future

assessment of the time-payment fee if, more than thirty days after mandate issues,

Johnson fails to completely pay any fine, court costs, or restitution that he owes. See

Dulin, 620 S.W.3d at 133; Cornelio, 2025 WL 657302, at *2.

4. The remaining costs itemized in the bills of costs are not yet due

In his fourth sub-issue, Johnson contends that both bills of costs should be

modified to include the language that any costs are not due until he is released from

confinement. The State agrees.

Article 42.15(a-1) of the Texas Code of Criminal Procedure provides that if, in

imposing a felony sentence, the trial court determines that “the defendant does not

have sufficient resources or income to immediately pay all or part of the fine and

costs, the court shall determine whether” they should be fully or partially waived,

discharged by community service, “required to be paid at some later date or in a

specified portion at designated intervals,” or discharged by any combination of these

three choices. Tex. Code Crim. Proc. Ann. art. 42.15(a-1), (b)(2) (providing that the

court may allow the defendant “to pay the entire fine and costs at some later date”).

A majority of Texas intermediate appellate courts, including this one, have held

that a trial court’s assessment of costs, fees, or both in a judgment together with its

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selection of the “Delayed Payment Option” indicates that the trial court implicitly

determined that the defendant was not, at the time of the sentence’s imposition,

immediately able to pay the judgment’s assessed costs and fees. See Ramirez v. State,

No. 02-24-00224-CR, 2025 WL 1350046, at *2 (Tex. App.—Fort Worth May 8, 2025,

no pet.) (mem. op., not designated for publication); Gates v. State, No. 02-23-00004-

CR, 2024 WL 482436, at *4 (Tex. App.—Fort Worth Feb. 8, 2024, no pet.) (mem.

op., not designated for publication). Here, the trial court selected the Delayed

Payment Option on its judgments.

Accordingly, we sustain Johnson’s fourth sub-issue and modify both bills of

costs to include a statement that—in accordance with the trial court’s judgments—the

assessed costs are not due until Johnson is released from confinement. See Tex. Code

Crim. Proc. Ann. art. 42.15(b).

We overrule in part and sustain in part Johnson’s second issue.

IV. CONCLUSION

Having overruled Johnson’s first issue and having overruled in part and

sustained in part his second issue, we modify both bills of costs to (1) delete the

$10,000 fines; (2) delete the $15 time-payment fee without prejudice to future

assessment; and (3) include a statement that the assessed costs and fees are not

payable by Johnson until his release from confinement, in accordance with the

language in the trial court’s judgments. Subject to these modifications to both bills of

costs, we affirm the trial court’s judgments. See Tex. R. App. P. 43.2(a).

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/s/ Brian Walker

Brian Walker
Justice

Publish

Delivered: December 11, 2025

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