Opinion
05-22-00753-CR 05-22-00754-CR
01-30-2024
DIONTE PRICE, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish. Tex.R.App.P. 47.2(b).
On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause Nos. F21-33874-U and F21-33872-U.
Before Partida-Kipness, Reichek, and Garcia, Justices.
MEMORANDUM OPINION
AMANDA L. REICHEK, JUSTICE.
Following a jury trial, Dionte Price was convicted of obstruction/retaliation and unlawful possession of a firearm by a felon. In this appeal, he asks the Court to make certain modifications to the judgments. The State agrees the modifications are necessary. As modified, we affirm the trial court's judgments.
In his first issue, appellant contends the judgments incorrectly reflect his pleas to the charges against him and the date the sentences were imposed. Each judgment indicates that appellant pleaded guilty. The reporter's record shows, however, that appellant entered a plea of not guilty to each charge. In addition, each judgment reflects that sentence was imposed on, and commenced on, July 28, 2022. Instead, the trial court orally pronounced sentence on July 27, 2022, and ordered the sentences "to begin today."
This Court has the power to modify a judgment to make the record speak the truth when we have the necessary information before us to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). Accordingly, we modify each judgment to reflect that appellant pleaded not guilty and that the sentence was imposed on and commenced on July 27, 2022. We sustain appellant's first issue.
Issue two involves court costs. Each judgment assessed court costs of $290. Appellant argues the charges are duplicative and fail to reflect the trial court's determination that back-time credit would cover court costs. He asks us to modify the unlawful possession of a firearm judgment to reflect $0 in court costs, modify the obstruction/retaliation judgment to reflect that his back-time credit covered his court costs, and also modify the cost bills to reflect the correct amounts.
In a single criminal action in which a defendant is convicted of two or more offenses or of multiple counts of the same offense, the court may assess each court cost or fee only once against a defendant. Tex. Code Crim. Proc. Ann. art. 102.073(a). For purposes of this rule, a person convicted of two or more offenses in the same trial is convicted of those offenses in a single criminal action. Shuler v. State, 650 S.W.3d 683, 690 (Tex. App.-Dallas 2022, no pet.). Generally, a cost should be assessed in the case with the highest category offense but, when the convictions are for the same category of offense and the costs are the same, the costs should be assessed in the case with the lowest trial court case number. Id.; see Tex. Code Crim. Proc. Ann. art. § 102.073(b).
Here, a review of the certified bill of costs for each case shows seven identical fees totaling $290. Because the costs are duplicative and both convictions are for third-degree felonies, court costs should have been assessed only in the obstruction/retaliation case, which has the lower trial court case number. See Tex. Penal Code Ann. §§ 36.06(c), 46.04(e). Further, when the trial judge orally pronounced appellant's sentences, she gave him back-time credit for 429 days in jail and stated, "Any outstanding fines and costs, I will run with his days in jail." Accordingly, we modify the judgment in trial court cause number F21-33874-U, the unlawful possession of a firearm case, to delete the court costs. We also modify the judgment in trial court cause number F21-33872-U, the obstruction/retaliation case, to note that appellant's back time is credited toward his court costs. We also make similar modifications to the cost bills. We modify the bill of costs in the obstruction/retaliation case to indicate that appellant has paid the costs and has a remaining amount due of $0. We modify the bill of costs in the unlawful possession case to delete all amounts assessed and reflect that the initial and remaining amounts due are $0. See Contreras v. State, No. 05-20-00186-CR, 2021 WL 6071640, at *8 (Tex. App.-Dallas Dec. 23, 2021, no pet.) (mem. op., not designated for publication). We sustain appellant's second issue.
Appellant raises an alternative third issue in the event we declined to modify the judgment as requested in issue two. In light of our resolution of issue two, we need not address issue three. See Tex. R. App. P. 47.1. As modified, we affirm the trial court's judgments.
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows: to delete "Guilty" and replace with "Not Guilty" under "Plea to Offense"; to delete "7/28/2022" and replace with "7/27/2022" under "Date Sentence Imposed"; to delete "7/28/2022" and replace with "7/27/2022" under "Date Sentence Commences"; and to delete "$290" under "Court Costs."
Additionally, the trial court's bill of costs is MODIFIED to show that the amount of each fee assessed is $0, that the "Initial Amount Due" is $0, and that the "Amount Paid" is $0.
As MODIFIED, the judgment is AFFIRMED.