Facts
- Petitioner Jimmy Young Vang was ordered to submit either the $5 filing fee or an application to proceed in forma pauperis by July 15, 2024 [lines="13-15"].
- As of the date of the order, petitioner had not complied with the court's directive [lines="17-18"].
- The court emphasized its authority to dismiss cases for failure to prosecute or comply with orders [lines="21-22"].
- The court indicated that failing to respond to its order could lead to recommended dismissal of the action [lines="43-44"].
- Petitioner was granted twenty-one days to show cause for why the case should not be dismissed [lines="46-47"].
Issues
- Whether the petitioner has shown sufficient cause for failing to pay the filing fee or submit an application for in forma pauperis status [lines="46-47"].
- Whether the court can dismiss the case due to the petitioner's failure to comply with its orders [lines="21-22"].
Holdings
- Petitioner must show cause within twenty-one days to avoid dismissal for failure to comply with court orders and payment obligations [lines="46-47"].
- The court has the authority to involuntarily dismiss cases that do not adhere to prosecution and compliance requirements [lines="31-32"].
OPINION
Case Information
*1 12-24-00048-CR 12-24-00049-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS JAN ANTONIO ESPINO, § APPEAL FROM THE 294TH APPELLANT § JUDICIAL DISTRICT COURT
APPELLEE § VAN ZANDT COUNTY, TEXAS MEMORANDUM OPINION
Jan Antonio Espino appeals his three convictions for aggravated assault with a deadly weapon. In his sole issue, Appellant argues that the trial court improperly imposed duplicative court costs in two of the cases. We affirm in trial cause number CR21-00113 (appellate cause number 12-24-00047-CR) and we modify and affirm as modified in trial cause number CR21- 00114 (appellate cause number 12-24-00048-CR) and trial cause number CR21-00115 (appellate cause number 12-24-00049-CR).
B ACKGROUND Appellant was charged by indictment with three offenses of aggravated assault with a deadly weapon. In each case, Appellant entered an open plea of “guilty” and elected to have the trial court assess his punishment. The trial court found Appellant “guilty” in each case and heard evidence and argument regarding punishment. In trial cause numbers CR21-113 and CR21-114, the trial court sentenced Appellant to five years of confinement. In trial cause number CR21-115, *2 the trial court sentenced Appellant to fifteen years of confinement and assessed a fine of $10,000. The trial court ordered that the sentences would run concurrently.
A SSESSMENT O F D UPLICATIVE C OURT C OSTS A ND F EES In his sole issue, Appellant argues that the imposition of court costs and fees in two of the cases is improper because said court costs are duplicative of those assessed in the first case.
Applicable Law
The Texas Code of Criminal Procedure provides as follows: (a) 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 the defendant.
(b) In a criminal action described by Subsection (a), each court cost or fee the amount of which is
determined according to the category of offense must be assessed using the highest category of offense that is possible based on the defendant’s convictions.
T EX . C ODE C RIM . P ROC . A NN . art. 102.073(a), (b) (West 2018). In this context, we construe the phrase “[i]n a single criminal action” to mean in a single trial or plea proceeding. Hurlburt v. State , 506 S.W.3d 199, 203 (Tex. App.—Waco 2016, no pet.).
Analysis
The record shows that the allegations and evidence of all three offenses were presented in a single plea proceeding, or “criminal action.” See id . at 203-04. Therefore, the trial court was authorized to assess each court cost and fee against Appellant only once. See T EX . C ODE C RIM . P ROC . A NN . art. 102.073(a). When, as here, the convictions are for the same category of offense and the costs are the same, the costs and fees should be assessed in the case with the lowest trial court cause number. See Williams v. State , 495 S.W.3d 583, 590 (Tex. App.—Houston [1st Dist.] 2016, pet. dism’d, improvidently granted , No. PD-0947-16, 2017 WL 1493488 (Tex. Crim. App. Apr. 26, 2017)) (not designated for publication); see also Shuler v. State , 650 S.W.3d 683, 690 (Tex. App.—Dallas 2022, no pet.). The judgment in the case with the lowest trial court cause number, CR21-00113 (appellate cause number 12-24-00047-CR), shows an assessment of court costs and fees totaling $325, and the judgments in both of the other cases likewise show the assessment of court costs and fees totaling $325. In each case, the assessed court costs and fees included local consolidated court costs of $105, state consolidated court costs of $185, a time payment fee of $15, a fee of $10 for committing or releasing from jail, and a fee of $10 for taking and approving bond.
2 *3 We sustain Appellant’s issue as to the duplicative court costs and fees assessed against him in trial cause numbers CR21-00114 and CR21-00115. We have the authority to correct a trial court’s judgment to make the record speak the truth when we have the necessary data and information to do so. Asberry v. State , 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d). Because we have the necessary data and information to correct the amount of court costs and fees in trial cause numbers CR21-00114 and CR21-00115, we conclude that the judgments, the attached order to withdraw funds, and the bill of costs in those cases should be modified to remove the duplicate court costs and fees totaling $325. See id .; see also T EX . R. A PP . P. 43.2(b).
D ISPOSITION Having sustained Appellant’s issue as to trial cause numbers CR21-00114 and CR21- 00115, we modify the trial court’s judgment, Order to Withdraw Funds, and bill of costs in said trial court cause numbers (appellate cause numbers 12-24-00048-CR and 12-24-00049-CR) to reflect that the amount of court costs and fees is $0.00. See T EX . R. A PP . P. 43.2(b). In all other respects, we affirm the trial court’s judgments in trial cause numbers CR21-00114 and CR21- 00115 (appellate cause numbers 12-24-00048-CR and 12-24-00049-CR) as modified . We affirm the trial court’s judgment in trial cause number CR21-00113 (appellate cause number 12-24- 00047-CR).
B RIAN H OYLE Justice Opinion delivered August 21, 2024.
(DO NOT PUBLISH) 3 *4 and the same being considered, it is the opinion of this court that there was no error in the judgment. the court below be in all things affirmed , and that the decision be certified to the court below for observance. *5 and the same being considered, it is the opinion of this court that the judgment of the court below should be modified, and as modified, affirmed.
the court below is modified to reflect that the amount of court costs and fees is $0.00; in all other respects, the judgment of the trial court is affirmed ; and that the decision be certified to the court
below for observance. *6 and the same being considered, it is the opinion of this court that the judgment of the court below should be modified, and as modified, affirmed.
the court below is modified to reflect that the amount of court costs and fees is $0.00; in all other respects, the judgment of the trial court is affirmed ; and that the decision be certified to the court
below for observance.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.