Brian Keith McCoy v. the State of Texas

NO. 12-22-00071-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

BRIAN KEITH MCCOY, § APPEAL FROM THE 7TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION
Brian Keith McCoy appeals his conviction for injury to an elderly individual. Appellant
raises two issues challenging the trial court’s denial of a mistrial and assessment of court costs.
We affirm.

BACKGROUND
Appellant was charged by indictment with injury to an elderly individual, enhanced to
habitual offender level by two prior felony offenses. 1 He pleaded “not guilty” to the offense, and
the matter proceeded to a jury trial. The jury found Appellant “guilty” as charged. Appellant
pleaded “true” to the enhancement paragraphs, and the jury assessed his punishment at
imprisonment for a term of fifty-nine years. This appeal followed.

MOTION FOR MISTRIAL
In Appellant’s first issue, he argues that the trial court erred by denying his motion for
mistrial based on the alleged tainting of the jury panel by the comments of a prospective juror.

1
A third-degree felony, punishable as charged by imprisonment for life or any term of not more than 99
years or less than 25 years. See TEX. PENAL CODE ANN. §§ 22.04(a)(3), (f) (West Supp. 2022); 12.42(d) (West
2019).
Standard of Review and Applicable Law
We review a trial court’s denial of a mistrial for an abuse of discretion. Ocon v. State,
284 S.W.3d 880, 884 (Tex. Crim. App. 2009). We view the evidence in the light most favorable
to the trial court’s ruling. Id. The ruling must be upheld if it was within the zone of reasonable
disagreement. Id. Mistrial is the appropriate remedy when error is so prejudicial that expenditure
of further time and expense would be futile. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App.
1999). It is a remedy intended for extreme circumstances, when prejudice is incurable and less
drastic alternatives have been explored. Ocon, 284 S.W.3d at 884. Furthermore, instructions to
the jury generally are considered sufficient to cure improprieties that occur during trial, and we
generally presume that a jury will follow the judge’s instructions. See Gamboa v. State, 296
S.W.3d 574, 580 (Tex. Crim. App. 2009).
Analysis
Near the end of voir dire in this case, the trial court asked the panel whether there was
“[a]nything that you thought [the attorneys] were going to be asking of you that they didn’t ask
or anything that you’d want to make sure they knew about you before they go back to do their
jury selection.” Three venirepersons responded, including Venireperson 90, who stated as
follows:

VENIREPERSON 90: They didn’t really ask if anybody else was employed with the county
or prior law enforcement or had any interaction with the individual. I don’t remember his face,
but I did work at the jail for about four years.

THE COURT: Okay.

VENIREPERSON 90: Could have been a possibility he remembers me or something like that.

After the panel left the courtroom, Appellant moved for a mistrial based on Venireperson 90’s
remarks. The trial court denied the motion, noting that Venireperson 90’s remarks were

obviously something you don’t want someone saying, but it wasn’t anything I found to be
mistrialable. I think most people that are sitting on juries know a defendant has been arrested,
has been in jail. There’s nothing of any substance there that would suggest that he managed the
defendant over at the jail.

2
On appeal, Appellant argues that Venireperson 90’s remarks tainted the jury panel by
implying that he was incarcerated for the current offense and damaging his presumption of
innocence. A defendant has a right to the presumption of innocence, and, as a general rule,
disclosing to the jury that the defendant is incarcerated violates that right. See Estelle v.
Williams, 425 U.S. 501, 503-04, 96 S. St. 1691, 1692-93, 48 L. Ed. 2d 126 (1976); Randle v.
State, 826 S.W.2d 943, 944-45 (Tex. Crim. App. 1992); Pierce v. State, 234 S.W.3d 265, 268
(Tex. App.—Waco 2007, pet. ref’d). However, Appellant fails to show Venireperson 90
disclosed that he was incarcerated. To the contrary, Venireperson 90 stated that he did not
remember seeing Appellant at the jail when he worked there. Under these circumstances, we
conclude that the trial court did not abuse its discretion by denying Appellant’s motion for
mistrial based on Venireperson 90’s comments. See Ocon, 284 S.W.3d at 884. Accordingly, we
overrule Appellant’s first issue.

COURT COSTS
In Appellant’s second issue, he argues that the trial court erred by imposing court costs
not supported by a bill of costs and ordering the withholding of funds to pay those costs from his
inmate trust account.
Standard of Review and Applicable Law
The code of criminal procedure requires that a judgment order a defendant to pay court
costs. TEX. CODE CRIM. PROC. ANN. art. 42.16 (West 2018); Johnson v. State, 423 S.W.3d 385,
390 (Tex. Crim. App. 2014). A cost is not payable by the person charged with the cost until a
written bill containing the items of cost is produced, signed by the officer who charged the cost
or the officer who is entitled to receive payment for the cost, and provided to the person charged
with the cost. TEX. CODE CRIM. PROC. ANN. art. 103.001(b) (West 2018). We review the
assessment of court costs on appeal to determine if there is a basis for the cost. Johnson, 423
S.W.3d at 390.
A bill of costs is not required to sustain statutorily authorized and assessed court costs,
but it is the most expedient and, therefore, preferable method. See id. at 396. If a bill of costs is
omitted, one can be prepared and presented to the appellate court in a supplemental clerk’s
record. See id. at 392.

3
Analysis
The judgment in this case reflects court costs in the amount of $251.50. The attached
order to withdraw funds from Appellant’s inmate trust account states that he “owes court costs,
fees, fines and/or restitution in the amount $251.50” and orders that payment be made from the
account. After Appellant filed his brief, the appellate record was supplemented with a bill of
costs. See Johnson v. State, 405 S.W.3d 350, 353 (Tex. App.—Tyler 2013, no pet.) (permitting
supplementation of appellate record with bill of costs). The bill of costs lists various fees totaling
$251.50 with a balance of $226.50. Appellant does not challenge a specific cost or basis for the
assessment of a specific cost. Absent such a challenge, the bill of costs of record is sufficient to
support the assessed costs in this case. See Johnson, 423 S.W.3d at 396. Accordingly, we
overrule Appellant’s second issue.

DISPOSITION
Having overruled Appellant’s first and second issues, we affirm the trial court’s
judgment.

BRIAN HOYLE
Justice

Opinion delivered March 22, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

4
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MARCH 22, 2023

NO. 12-22-00071-CR

BRIAN KEITH MCCOY,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-1376-20)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.