We address both parties' arguments in turn.Philmon v. State , 580 S.W.3d 377, 381–82 (Tex. App.—Houston [1st Dist.] 2019).Id. at 381.
Lewis directs us to Phillmon v. State, 580 S.W.3d 377 (Tex. App.-Houston [1st Dist.] 2019), aff'd, 609 S.W.3d 532 (Tex. Crim. App. 2020), and Jackson v. State, 562 S.W.3d 717 (Tex. App.-Amarillo 2018, no pet.). Phillmon was convicted in one trial of two offenses.
Next, the $25 separate "Crime Stoppers Fees" cannot be additionally assessed given that the fees are already statutorily mandated and accounted for as part of the assessed mandatory state consolidated court costs in each cause. See Philmon v. State, 580 S.W.3d 377, 383 (Tex. App.- Houston [1st Dist.] 2019) (concluding that a crime victims' compensation fee could not be assessed separately from the court costs charged for a felony conviction and affirming the judgment as modified), aff'd, 609 S.W.3d 532 (Tex. Crim. App. 2020); see also Tex. Loc. Gov't Code Ann. § 133.102; Taylor v. State, No. 13-20-00034-CR, 2021 WL 3196519, at *2 (Tex. App.-Corpus Christi-Edinburg July 29, 2021, no pet.) (mem. op., not designated for publication) (concluding the same where the trial court assessed a separate crime stoppers fee).
Perez is correct that a fine cannot be assessed as part of court costs, and the $25 crime stoppers fees cannot be additionally assessed given that the fees are already statutorily mandated and accounted for as part of the assessed $340 mandatory court costs in each cause. See Philmon v. State, 580 S.W.3d 377, 383 (Tex. App.-Houston [1st Dist.] 2019) (concluding that a crime victims' compensation fee could not be assessed separately from the court costs charged for a felony conviction and affirming the judgment as modified), aff'd, 609 S.W.3d 532 (Tex. Crim. App. 2020); see also Taylor v. State, No. 13-20-00034-CR, 2021 WL 3196519, at *2 (Tex. App.-Corpus Christi-Edinburg July 29, 2021, no pet.) (mem. op., not designated for publication)
However, when the question references a fact in evidence, a trial court does not abuse its discretion by overruling the objection and allowing the question. See Philmon v. State, 580 S.W.3d 377, 384 (Tex. App.-Houston [1st Dist.] 2019), aff'd, 609 S.W.3d 532 (Tex. Crim. App. 2020). Before Dr. Scheller testified, Dr. Hansen testified that he had three pediatric neurosurgical colleagues and that they all agreed with his opinion in this case.
As a consequence, the trial court cannot impose a separate crime stoppers fee or compensation to crime victims fee. See Philmon v. State, 580 S.W.3d 377, 383 (Tex. App.-Houston [1st Dist.] 2019), aff'd, 609 S.W.3d 532 (Tex. Crim. App. 2020) (concluding that a crime victims' compensation fee could not be assessed separately from the court costs charged for a felony conviction and affirming the judgment as modified); Jackson v. State, 562 S.W.3d 717, 724 (Tex. App.-Amarillo 2018, no pet.) (concluding and affirming the same where the trial court assessed a separate crime stoppers fee). The record reflects that the trial court initially signed an "Order of Deferred Adjudication," assessing, in relevant part, $449.00 in court costs, a $50.00 crime stoppers fee, and a $50.00 "crime victims['] fund" fee.
Thus, the statutory provisions setting forth each offense required proof of a fact the other did not, and the two offenses with which Franco was convicted are not the same under an elements test. See Ex parte Benson, 459 S.W.3d at 74-76 (holding that the offenses of intoxication assault and felony DWI were different under the same-elements test because each contained an element the other did not where: (1) intoxication assault required proof that the defendant caused serious bodily injury; and (2) felony DWI required proof that the defendant had two prior DWI convictions); see also Philmon v. State, 580 S.W.3d 377, 382 (Tex. App. - Houston [1st Dist.] 2019, pet. granted) (holding that the offenses of aggravated assault with a deadly weapon by threatening imminent bodily injury and dating-violence assault by impeding the normal breathing or circulation of the blood of the person were different under the same-elements test because each contained elements the other did not where: (1) the aggravated assault with a deadly weapon required proof that the defendant used a deadly weapon and that the defendant threatened the victim; and (2) the dating-violence assault by impeding breath or circulation required proof that the victim was in a dating relationship with the defendant and that the defendant actually caused bodily injury); Childress v. State, 285 S.W.3d 544, 549-50 (Tex. App. - Waco 2009, pet. ref'd) (holding that the Legislature intended to treat dating-violence assault and aggravated assault as separate offenses and that the defendant's convictions for those offenses was not a double-jeopardy violation). Furthermore, as he assumes that his two offen