Derrick Walton v. the State of Texas ( 2022 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00036-CR
No. 02-20-00037-CR
No. 02-20-00038-CR
___________________________
DERRICK WALTON, Appellant
V.
THE STATE OF TEXAS
On Appeal from 362nd District Court
Denton County, Texas
Trial Court Nos. F17-2958-431, F17-2959-431, F17-2960-431
Before Sudderth, C.J.; Kerr and Walker, JJ.
Opinion by Justice Walker
OPINION
Appellant Derrick Walton was charged in three indictments with unlawful
restraint and two acts of aggravated assault. A jury found Walton guilty of unlawful
restraint but found him guilty of the lesser-included offenses of deadly conduct as to
the two aggravated assault charges. Walton appeals his conviction for unlawful
restraint. He argues in four points that the evidence is legally insufficient to support
the jury’s guilty verdict. In his last issue, Walton asserts that the trial court erred by
assessing fines and fees in each of his three cases because the trial court ordered his
sentences to run concurrently.
We affirm the unlawful restraint judgment as is, modify the trial court’s deadly
conduct judgments to delete the fines and the fee assessed by the trial court, and
affirm the deadly conduct judgments as modified.
I. FACTS
Belinda Wright was Walton’s girlfriend in 2017. One night that summer, as
Walton was leaving Wright’s apartment in Irving, Walton asked Wright to talk with
him in his truck. Wright was hesitant to talk to Walton because he had just used
cocaine. As soon as Wright stepped into the truck cab’s interior, Walton “sped off.”
Wright immediately asked Walton to stop the truck and let her out, but he refused.
Walton’s driving was “erratic” and “dangerous.” He told Wright that something had
happened to his kids and that, “I’m going to die. You’re going to die.” Wright
repeatedly asked Walton to stop or slow down, but he refused to do either.
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Multiple drivers observed Walton “traveling at a high rate of speed” and
“swerving in and out of traffic.” Walton nearly sideswiped one driver. Wright was
seen by at least one driver frantically waving her arms and asking for help. That driver
called 911 to report what he had seen.
Walton drove through Coppell to Lewisville, toward Denton, and eventually
ended up in Flower Mound. While speeding through Flower Mound, Walton ran a
red light and hit a parked car, totaling it. The truck stalled, and Wright was able to
escape and run away from Walton.
Shortly after the crash, police arrived and made contact with Walton, who
appeared intoxicated. An officer asked him if he was under the influence, and Walton
answered that he had “dabbled in cocaine.” Police officers eventually arrested Walton
at the scene for driving while intoxicated and found baggies that contained the residue
of a white, powdery substance in Walton’s pockets.
II. SUFFICIENCY OF THE EVIDENCE
In our evidentiary-sufficiency review, we view all the evidence in the light most
favorable to the verdict to determine whether any rational factfinder could have found
the crime’s essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State, 520 S.W.3d 616, 622 (Tex.
Crim. App. 2017).
In Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997), the Court of
Criminal Appeals articulated the modern Texas standard for ascertaining what the
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“essential elements of the crime” are; they are “the elements of the offense as defined
by the hypothetically correct jury charge for the case.” Johnson v. State, 364 S.W.3d
292, 294 (Tex. Crim. App. 2012). The hypothetically correct jury charge is one that
“accurately sets out the law, is authorized by the indictment, does not unnecessarily
increase the State’s burden of proof or unnecessarily restrict the State’s theories of
liability, and adequately describes the particular offense for which the defendant was
tried.” Id. The law “as authorized by the indictment” is “the statutory elements of
the offense . . . as modified by the charging instrument.” Curry v. State, 30 S.W.3d 394,
404 (Tex. Crim. App. 2000). The hypothetically correct jury charge does not
necessarily have to track all the charging instrument’s allegations such as those that
give rise to immaterial variances. Gollihar v. State, 46 S.W.3d 243, 253, 256 (Tex. Crim.
App. 2001).
A. RECKLESSNESS EVIDENCE
In his first issue, Walton claims that the evidence is insufficient to support the
jury’s verdict that he recklessly exposed Wright to a substantial risk of serious bodily
injury during the unlawful restraint.1 A person commits the offense of unlawful
restraint when the person “intentionally or knowingly restrains another person.” Tex.
Penal Code Ann. § 20.02(a). This offense is a third-degree felony if “the actor
recklessly exposes the victim to a substantial risk of serious bodily injury” during the
1
Walton does not claim that the evidence is insufficient to support the jury’s
conclusion that he unlawfully restrained Wright.
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unlawful restraint. Id. § 20.02(c)(2)(A). In this case the indictment alleged, and the
charge required the jury to decide, whether Walton recklessly exposed Wright to a
substantial risk of serious bodily injury by not allowing her to exit the vehicle he
drove.
Walton concedes that the State elicited testimony that his cocaine-addled
driving, while he unlawfully restrained Wright in the truck, was “erratic” and
“potentially reckless.” Nevertheless, Walton claims that the State failed to present any
evidence at trial of the manner and means of recklessness alleged in the indictment at
trial—that is, whether his action in not allowing Wright to exit the truck exposed her
to a substantial risk of serious bodily injury. Consequently, Walton claims that there is
insufficient evidence to support the recklessness element as set out in a hypothetically
correct jury charge. We disagree.
First, we note that the alleged manner and means of creating a substantial risk
of serious bodily injury is not an essential element of the offense and therefore is not
included within the hypothetically correct jury charge. See e.g., Phelps v. State,
999 S.W.2d 512, 515 (Tex. App.—Eastland 1999, pet. ref’d) (holding the variance in
the manner and means of the alleged act (striking head of the victim with his hands)
and proof at trial (no evidence that defendant used his hands) was immaterial since
the manner and means was not included in the hypothetically correct jury charge);
Botello v. State, No. 08–04–00127–CR, 2005 WL 2044667, at *2–3 (Tex. App.—El
Paso Aug. 25, 2005, pet. ref’d) (mem. op., not designated for publication) (holding
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variance between the alleged manner and means (striking the head of the complainant
against a door frame) and the actual manner and means used (pushing complainant)
immaterial since the manner and means was not included in the hypothetically correct
jury charge). Therefore, the language “by not allowing Belin[d]a White to exit a
vehicle driven by Derrick Walton” is not an element of the third-degree felony
offense of unlawful restraint and is thus not included in this court’s sufficiency review.
To the extent that Walton claims Texas Code of Criminal Procedure Article
21.15’s notice requirement requires a hypothetically correct jury charge to include the
act or acts relied upon to constitute recklessness, such an argument also fails. See Tex.
Code Crim. Proc. Ann. art. 21.15. Recklessly exposing a victim to a substantial risk of
serious bodily injury is a result-of-conduct element. Lugo-Lugo v. State, 650 S.W.2d 72,
86 n. 5 (State Bar Committee on Revision of the Penal Code (Final Draft 1970)) (Tex.
Crim. App. 1983) (Clinton, J., concurring). Regarding a result-of-conduct element,
any variance in pleading and proof is immaterial. Ramos v. State, 407 S.W.3d 265, 270
(Tex. Crim. App. 2013). And “allegations that give rise to immaterial variances” need
not be “incorporate[d]” into the hypothetically correct jury charge for the case.
Johnson, 364 S.W.3d at 294. Accordingly, the acts constituting recklessness as pled in
the indictment were not required to be included in the hypothetically correct jury
charge. Ramos, 407 S.W.3d at 270–71.
Finally, in the context of this case, the evidence demonstrates that Walton’s
refusal to allow Wright to exit his truck did in fact put her at a substantial risk of
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serious bodily injury. Most significantly, the State presented evidence that Walton
crashed the truck into another car while he held Wright captive. We do not doubt
that crashing a truck into another car would put a passenger in the truck at a
substantial risk of serious bodily injury. And the State presented additional evidence
of Walton’s driving that the jurors could have found put Wright at a substantial risk of
serious bodily injury
Wright testified that Walton sped out of her apartment parking lot without
turning on the truck’s headlights. Walton then drove onto the entrance ramp of the
highway at such a high speed that Wright said it felt like the truck was balanced on
just two of its wheels. Wright explained that while Walton was driving the large truck,
he weaved in and out of traffic, ran red lights, and repeatedly told her that she was
“going to die.”
A witness on his way home from work in Flower Mound called 911 after seeing
what was later determined to be Walton’s truck. The witness described a “large
vehicle traveling at a high rate of speed . . . swerving in and out of traffic.” The
witness noticed a woman in the passenger seat of the truck “waving [her] hands
violently, asking for help.” The witness described the female passenger as “[f]rantic.”
Another witness who saw Walton driving the truck that night testified that
Walton was speeding, swerving in and out of the lanes of traffic, and driving “very,
very bad[ly].” The witness said that Walton almost “sideswiped” his car and that he
was not surprised that Walton crashed into another car. The witness testified that the
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truck ran a red light before hitting the other vehicle. Additionally, the witness testified
that Walton did not stop after crashing into the vehicle in Flower Mound. The
witness noticed Wright at the accident scene and said that she was screaming and
seemed very upset. Wright told him that the driver of the truck had “kidnapped” her.
Wright also told the witness that she had been “scared for her life.” The witness
believed that the car Walton ran into was totaled.
Detective Mike Short of the Lewisville police department testified that he was
driving home after his shift when he saw Walton’s large truck driving through
Lewisville. Short testified that he noticed the truck because it was weaving back and
forth between lanes of traffic without using indicator lights and was traveling at high
speeds. Short described Walton’s driving as “reckless.” He believed that the driver of
the truck was intoxicated. Short tried to follow the truck but lost sight of it for a few
minutes. However, Short quickly came upon the accident scene and noticed a
“frantic” looking woman running away from the wreck. Short called 911 and stated
that the accident scene was “chaotic.”
Short drove through the accident scene in an attempt to catch up with the large
truck he had seen a few minutes before. Within a mile of the accident scene, Short
came upon the truck. He noticed that it was traveling much slower than before and
that it had sustained front-end damage.
Officer Dolan of the Flower Mound Police Department was dispatched to the
scene. After observing Walton, Dolan believed that he was under the influence of
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narcotics or alcohol. Dolan testified that Walton’s speech was “incoherent.” When
Dolan asked Walton if he was under the influence of any substances that evening,
Walton responded “I dabbled in cocaine.”
Based on the evidence introduced at trial, a rational trier of fact could have
found that Walton recklessly put Wright at a substantial risk for serious bodily injury.
We overrule Walton’s first issue.
B. AWARE OF RISK AND CONSCIOUS DISREGARD EVIDENCE
In his second sufficiency issue, Walton claims that the State failed to prove that
he was aware of, but consciously disregarded, a substantial and unjustifiable risk that
his conduct would expose Wright to a substantial risk of serious bodily injury.
“A person acts recklessly, or is reckless, with respect to circumstances
surrounding his conduct or the result of his conduct when he is aware of but
consciously disregards a substantial and unjustifiable risk that the circumstances exist
or the result will occur.” Tex. Penal Code Ann. § 6.03(c). The risk created “must be
of such a nature and degree that its disregard constitutes a gross deviation from the
standard of care that an ordinary person would exercise under all the circumstances as
viewed from the actor’s standpoint.” Id. The State may prove recklessness through
direct or circumstantial evidence, coupled with all reasonable inferences from that
evidence. See Balderas v. State, 517 S.W.3d 756, 765–66 (Tex. Crim. App. 2016).
Recklessness can be applied generally to the act of driving. Zorn v. State, 315 S.W.3d
616, 620 (Tex. App.—Tyler 2010, no pet.); see, e.g., Aliff v. State, 627 S.W.2d 166, 172
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(Tex. Crim. App. 1982) (concluding that recklessness was shown where defendant
operated motor vehicle at over 100 miles per hour, passed a car on shoulder, locked
his brakes, and skidded into collision with another car); Arellano v. State, 54 S.W.3d
391, 393 (Tex. App.—Waco 2001, pet. ref’d) (concluding that reckless element was
satisfied where there were visible signs indicating “speed limit was reduced” but skid
marks showed that defendant was driving at excessive speed under circumstances);
Trepanier v. State, 940 S.W.2d 827, 830 (Tex. App.—Austin 1997, pet. ref’d)
(determining that driver was reckless when he attempted to illegally pass traffic on
right shoulder of road); Banister v. State, 761 S.W.2d 849, 850 (Tex. App.—Beaumont
1988, no pet.) (holding that recklessness was shown where truck driver put truck in
reverse during heavy fog on highway and struck driver proceeding legally in same
lane).
In this case, the evidence at trial showed several acts by Walton that revealed
conscious risk creation—that is “a conscious disregard for the risk involved in driving
in the manner in which the appellant was driving,” see Aliff, 627 S.W.2d at 172,
including weaving in and out of multiple lanes of traffic without using his indicator
lights, running red lights, traveling at a very high speed, not attempting to maneuver
to avoid a collision with a stationary vehicle, and driving after consuming cocaine. See,
e.g., Galvan v. State, No. 13-14-00059-CR, 2016 WL 1393507, at *5 (Tex. App.—
Corpus Christi–Edinburg Apr. 7, 2016, pet. ref’d) (mem. op., not designated for
publication) (observing that Texas courts “have found evidence sufficient to support a
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conviction for reckless conduct based upon impaired driving due to the consumption
of any amount of alcohol”); Gill v. State, 981 S.W.2d 517, 519 (Tex. App.—Beaumont
1998, no pet.) (holding that intoxication is a factor that weighs in favor of a finding of
recklessness). Moreover, Wright testified that Walton intentionally hit another
vehicle. See Campbell v. State, 551 S.W.3d 371, 377 (Tex. App.—Houston [14th Dist.]
2018, no pet.) (holding that erratic driving which included a high rate of speed and
almost striking the complainant was sufficient evidence to support a conviction for
recklessly engaging in deadly conduct).
Walton argues that the paranoid or delusional statements he made while driving
the truck demonstrate that he did not consciously disregard a substantial and
unjustifiable risk that his conduct would expose Wright to a substantial risk of serious
bodily injury. However, a paranoid or delusional mindset is not incompatible with
reckless conduct towards a victim. Cf. Mays v. State, 318 S.W.3d 368, 380–81 (Tex.
Crim. App. 2010) (holding that the defendant’s mental-illness evidence explained his
actions and demonstrated why he intentionally and knowingly killed law enforcement
officer; defendant’s mental-illness evidence did not “suggest that he did not intend to
shoot a person”). Here, the jury could have believed that Walton’s paranoid or
delusional statements that he was hearing voices telling him that his kids were in the
back of the truck and that “[s]omething happened to my kids. I’m going to die.
You’re going to die,” was the reason he consciously disregarded the substantial and
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unjustifiable risk that his conduct would expose Wright to a substantial risk of serious
bodily injury. Id.Additionally, the jury could have believed that Walton’s paranoid or delusional
statements were the result of the cocaine that he used. The analyst who testified at
trial stated that using cocaine can cause a person to become paranoid and suffer from
hallucinations. And we note that intoxication is not a defense to the commission of
an offense. See Tex. Penal Code Ann. § 8.04(a); Nicholson v. State, 594 S.W.3d 480, 490
(Tex. App.—Waco 2019, pet. ref’d) (holding that the appellant’s use of cocaine prior
to the offense was a factor that weighed in favor of a recklessness finding).
From the combined and cumulative force of all the evidence presented in this
case, see Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016) (stating that in an
evidentiary sufficiency review, the appellate court must consider “all of the evidence”
and “the cumulative force of all the incriminating circumstances”), and the reasonable
inferences from it, Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014)
(recognizing that “the trier of fact may use common sense and apply common
knowledge, observation, and experience gained in ordinary affairs when drawing
inferences from the evidence”), the jury could have found beyond a reasonable doubt
that Walton was actually aware of, but consciously disregarded, a substantial and
unjustifiable risk that his refusal to allow Wright to leave the truck would expose her
to a substantial risk of serious bodily injury. See Nowlin v. State, 473 S.W.3d 312, 317
(Tex. Crim. App. 2015) (“[W]here the inferences made by the factfinder are
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reasonable in light of the cumulative force of all the evidence when considered in the
light most favorable to the verdict, the conviction will be upheld.”) (quoting Wise v.
State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012)). We overrule Walton’s second
issue.
C. RECKLESSNESS DURING UNLAWFUL RESTRAINT EVIDENCE
In his third issue, Walton argues that the evidence is insufficient to support the
jury’s verdict that he acted recklessly in exposing Wright to a substantial and
unjustifiable risk of serious bodily injury because he had completed the offense of
unlawful restraint before he acted recklessly toward Wright. Walton, in essence, argues
that the unlawful restraint occurred and was completed the first time that Walton
refused Wright’s request to get out of his truck (while driving though the apartment’s
parking lot) and that there is no evidence that he acted recklessly before that time. Thus,
he claims that the evidence is insufficient to support the third-degree reckless
enhancing element. We disagree.
“Restrain” means to restrict a person’s movements without consent so as to
interfere substantially with her liberty, by moving her from one place to another or by
confining her. Tex. Penal Code Ann. § 20.01(1)(A). Our law imposes no minimal
requirement or time limitation for restraint. Rogers v. State, 687 S.W.2d 337, 342 (Tex.
Crim. App. 1985).
In a similar case, the appellant contended that the abduction underlying his
conviction for kidnapping, aggravated by an intent to violate or abuse the victim
13
sexually, was complete at the time that the abduction was originally accomplished.
Weaver v. State, 657 S.W.2d 148, 150 (Tex. Crim. App. 1983). Since there was no
evidence of his intent to sexually abuse the victim at that particular time, the appellant
argued the evidence did not support the conviction. Id. In overruling the appellant’s
contention, the Court of Criminal Appeals held that the restraint incident to
abduction did not necessarily occur only at one specific time but was a continuous,
ongoing offense until the victim’s release, and that proof of aggravating conduct
occurring during the period of abduction was sufficient to “show the ongoing
abduction together with the intent to violate or abuse sexually.” Id.Here, the evidence demonstrates that Walton unlawfully restrained Wright—
Walton does not dispute the proof of unlawful restraint. Instead, Walton claims that
the aggravating element of recklessly exposing Wright to a substantial and
unjustifiable risk of serious bodily injury was not proved to have occurred at the time of
the unlawful restraint—a time he claims was at one specific moment—when Wright
asked Walton to let her out of the truck, and Walton refused. Walton’s argument fails
because the act of restraint is a continuing ongoing act. See Rogers, 687 S.W.2dd at
342; see also Garza v. State, 788 S.W.2d 651, 655 (Tex. App.—Corpus Christi–Edinburg
1990, no pet.) (holding restraint involved in the offense of kidnapping does not
necessarily occur only at one time but continues throughout the offense until the
release).
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Wright was restrained from the moment Walton refused to allow her to leave
his truck until the moment she escaped the truck at the Flower Mound crash site. See
Tex. Penal Code Ann. §§ 20.01(1)(A), 20.02(a). The unlawful restraint was a
continuous, ongoing event. Moreover, Walton’s reckless act in exposing Wright to a
substantial and unjustifiable risk of serious bodily injury was proved by testimony
from Wright and other witnesses who observed Walton’s driving. Their testimony
established that Walton wove in and out of multiple lanes of traffic without using the
truck’s indicator lights, ran multiple red lights, traveled at a very high speed, failed to
attempt to avoid the collision with the stationary vehicle, and drove after using
cocaine. We hold that there is sufficient evidence to show the ongoing restraint
together with Walton’s reckless act in exposing Wright to a substantial and
unjustifiable risk of serious bodily injury. See Tex. Penal Code Ann. § 20.02(c)(2)(A).
We overrule Walton’s third issue.
D. DEADLY WEAPON EVIDENCE
In his fourth issue, Walton argues that there is no evidence that the truck he
drove was employed as a deadly weapon. We disagree.
A deadly weapon is defined as anything that in the manner of its use or
intended use is capable of causing death or serious bodily injury. See Tex. Penal Code
Ann. § 1.07(a)(17)(B). Though not a deadly weapon per se, a motor vehicle may
become one depending on the manner of its use or intended use. Chaudron v. State,
No. 07-18-00295-CR, 2019 WL 6723395, at *1 (Tex. App.—Amarillo Nov. 8, 2019,
15
pet. ref’d) (mem. op., not designated for publication); Cummings v. State, No. 05-17-
00852-CR, 2018 WL 3629105, at *3 (Tex. App.—Dallas July 31, 2018, pet. ref’d)
(mem. op., not designated for publication). In assessing whether the vehicle in
question became one, we evaluate both the way it was used and whether it was
capable of causing death or serious bodily injury. Chaudron, 2019 WL 6723395, at *2–
3; accord Moore v. State, 520 S.W.3d 906, 910 (Tex. Crim. App. 2017) (stating same).
The way a vehicle was used implicates considerations like whether the accused drove
recklessly or dangerously as he committed the crime. Moore, 520 S.W.3d at 910.
Speeding coupled with neglecting to control the vehicle may indicate such
recklessness or dangerousness. See id. (noting prior opinions and stating it has
concluded there was evidence of reckless or dangerous driving where the defendant
had been speeding and failed to apply the vehicle’s brakes or otherwise control his
vehicle prior to a collision). And, as for the prong dealing with the vehicle’s capability
of causing death or serious injury, proof of any actual injury is unnecessary. See id. at
909. Evidence that others were “endangered” is sufficient. Id.The record before us contains evidence that Walton sped, wove through traffic,
and ran red lights while confining Wright in his truck when other cars were driving
near him. He nearly broadsided two cars, and he crashed into and totaled a third.
The driver of the car Walton totaled thought he would have been killed or seriously
injured had he not sped up to avoid a full head-on crash.
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Walton argues that the “offense was completed prior to the time a reasonable
jury could infer [he] formed the intent to use the vehicle as a deadly weapon.” But, as
discussed in response to Walton’s third issue about the third-degree element, the
offense was not completed when Wright asked Walton to stop the truck and let her
out—it continued until Wright was able to escape the truck after the crash. See supra
Section C, pg. 15.
From the foregoing, a rational trier of fact could reasonably conclude not only
that Walton drove his truck in a reckless and dangerous way but also that the truck
endangered others. The fact that no one was injured does not preclude a finding that
Walton’s truck was a deadly weapon in its use. The circumstances here exceeded the
“bare facts [deemed] insufficient to establish that the defendant ‘caused another
vehicle or person to be in actual danger.’” Moore, 520 S.W.3d at 910. Consequently,
the finding under attack has sufficient evidentiary support. See, e.g., Drichas v. State,
175 S.W.3d 795, 797–98 (Tex. Crim. App. 2005) (holding that the appellant’s acts in
disregarding traffic signs and signals, driving erratically, weaving between lanes and
within lanes, turning abruptly into a construction zone, knocking down barricades,
and driving on the wrong side on the highway in the presence of some traffic was
enough to support a deadly-weapon finding); Cummings, 2018 WL 3629105, at *4
(holding that the appellant’s acts of traveling at an unsafe speed in an urban area,
running stop signs, slowing down only to make a turn at an intersection, squealing his
tires, crawling from the window while the car was still moving and going over a curb
17
was sufficient to support a deadly-weapon finding). We overrule Walton’s fourth
issue.
III. FEES AND COSTS
In his last issue, Walton asserts that the trial court erred by assessing fines and
fees in each of his three cases because the trial court ordered his sentences to run
concurrently. The State concedes that Walton is correct, and we agree.
The trial court signed three judgments: one for unlawful restraint, one for
deadly conduct, and a third for deadly conduct. The court assessed a $5,000 fine for
the offense of unlawful restraint and assessed a $2,000 fine for each deadly conduct
offense. The court assessed various costs and fees, including a time payment fee, as a
part of the unlawful restraint judgment. Other than the time payment fee, the two
deadly conduct judgments do not contain the various costs included in the unlawful
restraint judgment. All three judgments state—in accordance with the trial judge’s
oral pronouncement—that the sentences run concurrently.
Because a fine is part of a sentence, fines running concurrently may not be
added to each other; instead, the defendant is obligated to pay only one fine. See State
v. Crook, 248 S.W.3d 172, 174, 176 (Tex. Crim. App. 2008); Williams v. State,
495 S.W.3d 583, 590–91 (Tex. App.—Houston [1st Dist.] 2016) (op. on reh’g), pet.
dism’d, No. PD-0947-16, 2017 WL 1493488 (Tex. Crim. App. Apr. 26, 2017) (per
curiam) (not designated for publication); Wiedenfeld v. State, 450 S.W.3d 905, 906–07
(Tex. App.—San Antonio 2014, no pet.).
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Similarly, when multiple offenses are tried in a single criminal action, a trial
court may assess each court cost only once against a defendant. See Tex. Code Crim.
Proc. Ann. art. 102.073.2 When a trial court erroneously assesses court costs for
multiple convictions tried in a single proceeding, we retain the court costs for the
offense of the highest category. See id. at 102.073(b); Valdez v. State, Nos. 03-16-
00811-CR, 03-16-00812-CR, 2017 WL 4478233, at *4, *6 (Tex. App.—Austin Oct. 6,
2017, no pet.) (mem. op., not designated for publication) (retaining the court costs
assessed for the second-degree possession conviction but deleting the costs assessed
for the third-degree conviction of unlawful possession of a firearm by a felon).
Accordingly, because the trial judge ordered Walton’s three sentences to run
concurrently, we modify the two deadly conduct judgments to delete the $2,000 fines.
See Tex. R. App. P. 43.2(b). We also modify the trial court’s judgments to delete the
assessed court costs for the time payment fees in the two deadly conduct cases.3 Id.2
The phrase “[i]n a single criminal action” is not defined. However, drawing on
how the [CCA] interpreted the same language used in a different statute, the Waco
Court of Appeals construed it to mean allegations and evidence of more than one
offense that are presented in a single trial or plea proceeding. Hurlburt v. State,
506 S.W.3d 199, 203 (Tex. App.—Waco 2016, no pet.).
3
We note that here the offense of unlawful restraint is a third-degree felony
because Walton recklessly exposed Wright to a substantial risk of serious bodily
injury. See Tex. Penal Code Ann. § 20.02(c)(2)(A). Deadly conduct is a class A
misdemeanor. Id. at 22.05(e).
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IV. CONCLUSION
We affirm the unlawful restraint judgment as is. We modify the trial court’s
deadly conduct judgments to delete the fines and the time payment fees assessed by
the trial court and affirm the deadly conduct judgments as modified.
/s/ Brian Walker
Brian Walker
Justice
Publish
Delivered: February 17, 2022
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