Victor Ortiz Gonzalez v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00179-CR
___________________________
VICTOR ORTIZ GONZALEZ, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 432nd District Court
Tarrant County, Texas
Trial Court No. 1497894D
Before Kerr, Bassel, and Womack, JJ.
Memorandum Opinion on Remand by Justice Kerr
MEMORANDUM OPINION ON REMAND
The Court of Criminal Appeals has remanded this appeal so that we can
reconsider––in light of Anastassov v. State, No. PD-0848-20, 2022 WL 5054846, at *3–
6 (Tex. Crim. App. Oct. 5, 2022)––our prior disposition modifying the trial court’s
evading-arrest judgment to delete the $10,000 assessed by the jury. We agree, along
with Gonzalez and the State, that Anastassov compels us to affirm the evading-arrest
judgment rather than to modify it to delete the fine. See id. But––also with Gonzalez’s
and the State’s agreement––we modify the trial court’s funds-withdrawal notification1
directed to the Texas Department of Criminal Justice and incorporated into the trial
court’s evading-arrest and aggravated-assault judgments to authorize withdrawal of a
total of only $10,319 from Gonzalez’s inmate trust account.
Background
A jury convicted Gonzalez of aggravated assault of a public servant and
evading arrest or detention with a vehicle. The State tried the offenses, which arose
from a single criminal episode, together. Gonzalez v. State (Gonzalez 4), No. PD-0256-
21, 2022 WL 16954543, at *1 (Tex. Crim. App. Nov. 16, 2022) (not designated for
1
We have noted that although the trial court titles its notice an order, the
controlling statute describes it as a notification that a separately entered order has
assessed costs. See Foy v. State, No. 02-21-00048-CR, 2022 WL 188378, at *1 n.2 (Tex.
App.—Fort Worth Jan. 20, 2022, pet. ref’d) (mem. op., not designated for
publication) (citing Tex. Gov’t Code Ann. § 501.014(e); Harrell v. State, 286 S.W.3d
315, 316 n.1 (Tex. 2009); Maldonado v. State, 360 S.W.3d 10, 12 n.3 (Tex. App.—
Amarillo 2010, no pet.)).
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publication). In each case, a jury assessed confinement––forty-five years for the
aggravated assault and twenty years for the evading offense––and a $10,000 fine. The
trial court sentenced Gonzalez accordingly, included the confinement terms and fines
in the judgments, and ordered the sentences––including the fines––to run
concurrently. See id.Initially, we reversed the aggravated-assault conviction, but the Court of
Criminal Appeals reversed our judgment and remanded the case for us to consider
“the remaining issues in a manner consistent with [the] Court’s opinion.” Gonzalez v.
State, 610 S.W.3d 22, 26, 30 (Tex. Crim. App. 2020). The only remaining issue was
whether a $10,000 fine should be deleted from one of the judgments and from the
total amount the trial court notified the Department to withhold from Gonzalez’s
trust account: $20,319. The State conceded that the withdrawal notification should be
modified.
Instead of modifying only the withdrawal notification, we also deleted the fine
from the evading judgment, relying on several sister-court cases applying State v.
Crook, 248 S.W.3d 172, 177 (Tex. Crim. App. 2008). Gonzalez v. State (Gonzalez 3),
No. 02-18-00179-CR, 2021 WL 924711, at *1 (Tex. App.––Fort Worth Mar. 11, 2021)
(mem. op., not designated for publication), rev’d, 2022 WL 16954543, at *1. The State
Prosecuting Attorney (SPA) filed a petition for discretionary review, in which she
sought to have the deleted evading-arrest fine reinstated but also acknowledged that
“[f]or purposes of an offender’s obligation to pay, concurrent multiple fines are to be
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treated as a unitary fine so that they equally discharge together.” State’s Petition for
Discretionary Review at 3, Gonzalez 4 (No. PD-0256-21),
https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=492afdc1-b109-
4a19-b0dd-cf99eba974a8&coa=coscca&DT=PETITION&MediaID=7d885ec4-
84cb-4f53-a16c-2f023856e6fc. The SPA did not complain about our modifying the
withdrawal notification in Gonzalez 3. See id. at 3–4.
In remanding this case to us, the Court of Criminal Appeals noted that in
Anastassov it had “observed that ‘where multiple fines are assessed in a same-criminal-
episode prosecution and they are ordered to be discharged concurrently, they
discharge in the same manner as concurrent terms of confinement – the defendant
pays the greatest amount of fine but receives credit for satisfying all of the multiple
concurrent fines.’” Gonzalez 4, 2022 WL 16954543, at *1. For this reason, then, the
court held in Anastassov that “the court of appeals erred by deleting one of the lawfully
assessed fines from the judgment.” Id. (emphasis added).
Disposition
Based on Anastassov’s holding, we hold that the trial court did not err by
including the jury-assessed $10,000 fine in both judgments. See 2022 WL 5054846, at
*6. But we also hold, based on Anastassov’s underlying reasoning, that the trial court’s
withdrawal notification must still be modified to delete $10,000.
A funds-withdrawal notification under Government Code Section 501.014(e) is
a civil-collection procedure. See Harrell, 286 S.W.3d at 317–21 (describing procedure as
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a “civil post-judgment collection action that is (1) distinct from the underlying
criminal judgments assessing . . . conviction, sentence, and court costs, and (2) aimed
at seizing funds to satisfy the monetary portion of those judgments”). Because the
trial court ordered the fines here to be discharged concurrently, they cannot both be
collected; instead, they must be “discharged jointly in accordance with concurrent-
sentencing principles.” See Anastassov, 2022 WL 5054846, at *6.
Nothing in the withdrawal notification instructs the Department to discontinue
withholding funds after Gonzalez has paid the $319 in costs and the first $10,000 fine.
See Tex. Gov’t Code Ann. § 501.014(e)(4)–(5) (prioritizing collection of fees and costs
before fines). Therefore, we conclude that the withdrawal notification must be
modified to comport with Anastassov’s principle that Gonzalez must satisfy only one
$10,000 fine.
Accordingly, we affirm the trial court’s judgments, but we modify the funds-
withdrawal notification to delete $10,000 so that the total the Department may
withdraw from Gonzalez’s inmate account is $10,319.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: May 11, 2023
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