Dondre Johnson v. State ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-15-00357-CR
___________________________
DONDRE JOHNSON, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 1
Tarrant County, Texas
Trial Court No. 1415600R
Before Birdwell, Bassel, and Womack, JJ. 1
Memorandum Opinion on Remand by Justice Bassel
1
A new panel has been substituted on remand because all of the justices from the
previous panel have retired.
MEMORANDUM OPINION ON REMAND
I. INTRODUCTION
A jury convicted Appellant Dondre Johnson of two counts of theft of money
between $1,500 and $20,000 and assessed his punishment at two years’ confinement in
state jail and a $10,000 fine for each count. See Act of May 27, 2015, 84th Leg., R.S.,
ch. 1251, § 10, 2015 Tex. Sess. Law Serv. 4209, 4212 (current version at Tex. Penal
Code Ann. § 31.03(e)(4)(A)). Appellant raised four points on appeal, but because we
sustained Appellant’s first point in which he challenged the sufficiency of the evidence
supporting his convictions, we reversed the trial court’s judgment and rendered a
verdict of acquittal on both counts without reaching the remaining three points. See
Johnson v. State (Johnson I), 513 S.W.3d 190, 201 (Tex. App.—Fort Worth 2016) (“Having
held the evidence insufficient to support Appellant’s convictions on both counts, we
sustain his first point, which is dispositive of the entire case. We therefore do not
address his remaining points.”), rev’d, 560 S.W.3d 224 (Tex. Crim. App. 2018).
The court of criminal appeals disagreed with our application of the standard of
review, reversed our judgment, and remanded the case with instructions for us to
consider Appellant’s remaining three points that were not addressed in Johnson I. Johnson
v. State (Johnson II), 560 S.W.3d 224, 226 (Tex. Crim. App. 2018). Therefore, although
they were originally identified as Appellant’s second, third, and fourth points, because
the court of criminal appeals has already overruled Appellant’s first point challenging
2
the sufficiency of the evidence, we will address Appellant’s remaining points on remand
as points one, two, and three.2
We affirm the judgments as modified.
II. DID THE STATE IMPROPERLY COMMENT ON APPELLANT’S SILENCE?
In his first point, Appellant argues that the trial court erred when it overruled his
objection to the prosecutor’s comment on Appellant’s refusal to take responsibility,
which Appellant contends was an improper reference to his exercise of his Fifth
Amendment right not to testify. See U.S. Const. amend. V; Tex. Code of Crim. Proc.
Ann. art. 38.08. The State disagrees that the prosecutor’s comment about Appellant’s
refusal to take responsibility even implicated his decision not to testify but alternatively
argues that even if the comment did, any such error is not reversible. We conclude that
the prosecutor’s comment was in reference to Appellant’s statements in two recorded
interviews that were played for the jury, and thus, the comment was not an improper
reference to his decision not to testify. Further, any error created by the argument was
harmless.
A. Standard of Review and Applicable Law
We review a trial court’s ruling on an objection to improper jury argument for
an abuse of discretion. Rodriguez v. State, 446 S.W.3d 520, 536 (Tex. App.—San Antonio
2
We also adopt the recitation of the background facts already set forth in
Johnson I, 513 S.W.3d at 192–94.
3
2014, no pet.) (op. on reh’g). “Such argument does not result in reversal ‘unless, in light
of the record as a whole, the argument is extreme or manifestly improper, violative of
a mandatory statute, or injects new facts harmful to the accused into the trial
proceeding.’” Id. (quoting Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000)).
“The remarks must have been a willful and calculated effort on the part of the State to
deprive appellant of a fair and impartial trial.” Wesbrook, 29 S.W.3d at 115.
A court may not hold a defendant’s failure to testify against him, and counsel
may not allude to a defendant’s failure to testify. U.S. Const. amend. V; Tex. Const.
art. I, § 10; Tex. Code Crim. Proc. Ann. art. 38.08. To determine if a prosecutor’s
comment violated article 38.08 and impermissibly referred to an accused’s failure to
testify, we must decide whether the language used was plainly intended or was of such
a character that the jury naturally and necessarily would have considered it to be a
comment on the defendant’s failure to testify. See Tex. Code Crim. Proc. Ann.
art. 38.08; Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001); Fuentes v. State,
991 S.W.2d 267, 275 (Tex. Crim. App. 1999). We must view the offending language
from the jury’s standpoint, and the implication that the comment referred to the
accused’s failure to testify must be clear. Randolph v. State, 353 S.W.3d 887, 891 (Tex.
Crim. App. 2011); Bustamante, 48 S.W.3d at 765. A merely indirect or implied allusion
to the defendant’s failure to testify does not violate the accused’s right to remain silent.
Wead v. State, 129 S.W.3d 126, 130 (Tex. Crim. App. 2004); Patrick v. State, 906 S.W.2d
481, 490–91 (Tex. Crim. App. 1995).
4
But when the remark calls the jury’s attention to the absence of evidence that
only a defendant’s testimony could supply, it is impermissible. See Garrett v. State, 632
S.W.2d 350, 353 (Tex. Crim. App. [Panel Op.] 1982). A comment by a prosecutor on
a defendant’s refusal to take responsibility may be a comment on his failure to testify.
See Roberson v. State, 100 S.W.3d 36, 40–41 (Tex. App.—Waco 2002, pet. ref’d).
However, if there is evidence in the record supporting the comment, then no error is
shown. Howard v. State, 153 S.W.3d 382, 386 (Tex. Crim. App. 2005) (citing Fearance v.
State, 771 S.W.2d 486, 514 (Tex. Crim. App. 1988)).
B. The Comment, Objection, and Ruling
The comment Appellant complains of occurred during the State’s closing
argument:
[PROSECUTOR]: . . . . You can’t sit there and point the finger at Rachel
Hardy or point the finger at John Nganga or Jonathan Mitchell or Willie
Marble. I mean, you heard name after name after name, but you never heard
Mr. Johnson taking responsibility for taking that money, for giving the wrong ashes --
[APPELLANT’S TRIAL COUNSEL]: Objection, Your Honor.
[PROSECUTOR]: -- and for lying.
[APPELLANT’S TRIAL COUNSEL]: He’s alluding to Mr.
Johnson’s failure to testify.
THE COURT: That’s overruled. [Emphasis added.]
C. No Abuse of Discretion
Here, the prosecutor’s statement about Appellant’s failure to take responsibility
was in reference to two recorded interviews with detectives, which were introduced at
5
trial. According to the State’s theory, the interviews showed Appellant shift from
initially taking responsibility for transportation of the bodies and other operations of
the funeral home, to passing off responsibility to other specific individuals and
downplaying his role. One of the detectives testified that the interviews demonstrated
Appellant trying to “distance himself” from responsibility at the funeral home:
[PROSECUTOR]. All right. The -- in the first statement, is [Appellant]
-- the first one we listened to, is [Appellant] stating that he’s doing the
transportation 99 percent of the transportation?
[DETECTIVE]. Yes, sir, I believe he said if you request Johnson,
you’re going to get Johnson. I believe is how he qualifies that.
[PROSECUTOR]. Okay. And as we start going through this
second -- we’re about 14 minutes in, does the story seem to start changing?
[DETECTIVE]. It looks like to me he’s starting to distance
himself. He’s starting to mitigate his role there, and I think that becomes
clear because he starts throwing in other people. There’s an order of
progression there that you can see between those first and second
interviews.
[PROSECUTOR]. And is that something you see commonly in
your investigation?
[DETECTIVE]. Absolutely, every time.
[PROSECUTOR]. The -- was this the first time you heard John
Nganga’s name?
[DETECTIVE]. It is.
[PROSECUTOR]. Okay. What about Willie Marble? Had you
heard Willie Marble’s name before?
[DETECTIVE]. I had not heard his name either.
6
Indeed, earlier in closing argument, the prosecutor specifically referenced
Appellant’s “own words” and listening to his statement as the best indication that
Appellant had no intention of fulfilling his agreement (which is another way of saying
Appellant was not taking responsibility):
[PROSECUTOR]: . . . . And the best evidence of all is his own words.
When you listen to his statement, he knows those bodies are there. He
knows those people have not been cremated, except for [one person]. He
forgot about him. But all the other people, he knows they’re there. That’s
the best evidence that he never intended to fulfill his agreement.
[Emphasis added.]
And when the prosecutor commented on Appellant’s failure to take
responsibility, he mentioned several specific individuals and reminded the jury that “you
heard name after name after name, but you never heard Mr. Johnson taking
responsibility for taking that money,” which only makes sense if it was in reference to
Appellant’s recorded interviews, in which he mentioned the individuals.
Finally, the comment was in response to Appellant’s trial counsel’s closing
argument in which he repeatedly emphasized Appellant’s trial theme that he was merely
an employee of the funeral home and as such was not responsible for any missing funds.
Thus, there was evidence in the record—namely, the detective’s testimony and
the two recorded interviews with Appellant’s own words—to support that Appellant
was attempting to avoid taking responsibility for his role at the funeral home. Viewed
from the jury’s standpoint, we do not believe that the prosecutor’s comment in closing
argument that “you heard name after name after name, but you never heard
7
Mr. Johnson taking responsibility for taking that money, for giving the wrong ashes[,]
. . . and for lying” was a comment on Appellant’s failure to testify. Rather, it was a
reference to Appellant’s statements in the recorded interviews and the detective’s
testimony—a proper summation of evidence presented to the jury. That is, the jurors
would have considered the statement a reference to the recorded interviews and not to
Appellant’s decision not to testify. Therefore, we hold that the trial court did not abuse
its discretion in overruling Appellant’s objection. See Cruz v. State, 225 S.W.3d 546, 549–
50 (Tex. Crim. App. 2007) (holding prosecutor’s statement was not an improper
comment about the appellant’s failure to testify when “it [was] clear from the record
that the prosecutor’s statements to the jury referred to the appellant’s own written
statement which had been admitted into evidence”); Howard, 153 S.W.3d at 386
(concluding prosecutor’s argument that the defendant failed to show remorse was not
an improper comment on the defendant’s failure to testify but a “proper summation of
the evidence” when one witness had testified that the defendant told him he had no
remorse).
D. Any Error Was Harmless
However, even assuming arguendo that the trial court abused its discretion by
overruling Appellant’s objection to the prosecutor’s comment about Appellant’s failure
to take responsibility, we conclude that any such error is harmless.
A prosecutorial comment that impinges upon a defendant’s privilege against self-
incrimination is an error of constitutional magnitude and must be analyzed under rule
8
44.2(a) of the rules of appellate procedure. See Tex. R. App. P. 44.2(a); Snowden v. State,
353 S.W.3d 815, 818 (Tex. Crim. App. 2011). When confronted with such an error, we
must reverse unless we conclude beyond a reasonable doubt that the error did not
contribute to the appellant’s conviction. Snowden, 353 S.W.3d at 818, 822 (citing Tex.
R. App. P. 44.2(a)). Our focus is on the error itself in the context of the trial as a whole,
to determine the likelihood that the error moved the jury from a state of non-persuasion
to a state of persuasion on a material issue in the case or distracted or diverted the jury
from its factfinding role. Id. at 819, 825. To make this determination, we consider
several nonexclusive factors, such as (1) the nature of the error, (2) the extent it was
emphasized by the State, (3) the probable implications of the error, and (4) the weight
a juror would probably place on the error. Id. at 820. The analysis should at least take
into account “any and every circumstance apparent in the record that logically informs”
our determination whether beyond a reasonable doubt, the error did not contribute to
the conviction. Id. at 822; Weekley v. State, No. 05-10-01107-CR, 2013 WL 2316612, at
*4 (Tex. App.—Dallas May 28, 2013, pet. ref’d) (mem. op., not designated for
publication).
Appellant argues that the alleged error requires reversal because the State relied
heavily on an “emotion-laden presentation that emphasized the unsavory nature of the
dead bodies” at the funeral home. Thus, the comment about the failure to take
responsibility necessarily implied that Appellant’s in-court silence continued to
9
dishonor the dead and their families by his refusal to accept responsibility. Our analysis
leads us to a different conclusion.
The theme of responsibility did run throughout the trial, but the theme was
central to Appellant’s defensive strategy. Beginning in his opening statement,
Appellant’s trial counsel suggested that Appellant was merely an employee at the funeral
home and that it was Appellant’s wife, Rachel Hardy, who was in charge, so he urged
the jury to be patient to hear all about the issue of responsibility:
You’ll hear employees come up and talk and say the boss was Rachel
Hardy. You’ll hear Rachel Hardy, Rachel Hardy. And this isn’t a passing-
the-buck kind of thing. The question is, where does the buck stop? If you
work for somebody, ultimately who is responsible if you’re
handicap[ped], if you’re limited of what you can do as an employee?
That’s the part you’re missing, and that’s the part that’s so important to be patient for.
[Emphasis added.]
Appellant’s trial counsel returned to the question of responsibility when cross-
examining the funeral home’s landlord:
Q. Who did the day-to-day, [Appellant] or Rachel?
A. [Appellant] did the day-to-day operation to the best of my
knowledge, as far as funeral services and everything like that.
Q. So he was actually the worker and she was the boss?
A. I would assume, yes.
Q. Okay. And so when you’re talking about she did the paperwork, signing
leases, right, that was her responsibility?
A. Yes, that’s what [Appellanr] told Jeff -- that’s what Jeff told me.
He said he took the leases home -- or with him so she could initial off.
10
Q. Okay. [Emphasis added.]
Indeed, because Appellant’s defensive theory was essentially that he could not
be culpable for the theft because he was not the owner, funeral director in charge, or
person responsible for the funeral home’s finances, the issue of responsibilities related
to the funeral home came up repeatedly throughout the trial.
Appellant’s trial counsel returned to the responsibility theme in his closing
argument:
In the time [Appellant] accepts the money as an employee of the mortuary, he has it
but he’s holding it by the authority of the mortuary of the business and then depositing
it. At that point Rachel has control on how it’s spent. And I do remember
Andrea saying that she didn’t think that employees should be responsible for the bad
decisions of the owner. [Emphasis added.]
With Appellant’s trial theme as the backdrop, the impact of the nature of the
alleged error—a single allegedly improper comment from the prosecutor during closing
argument—was minimal. The extent the comment was emphasized by the State was
also minimal, given that the State did not return to it after Appellant’s objection was
overruled. See Snowden, 353 S.W.3d at 824–25 (concluding prosecutor’s improper
comment about the appellant’s lack of present remorse was not emphasized and thus
did not improperly persuade the jury when the comment was “never repeated or
emphasized”). The probable implications of the error were minimal because the jury
was admonished before closing arguments, as well as in the jury charge, that Appellant
had the right not to testify and that the exercise of the right could not be used against
him. See Weekley, 2013 WL 2316612, at *5 (concluding prosecutor’s comment that
11
ostensibly implicated the appellant’s decision not to testify was harmless error when
“the court’s charge included an instruction not to consider appellant’s failure to testify,
which was [also] read to the jury before closing argument”). Finally, the weight a juror
would likely have placed on the error is minimal given that the court of criminal appeals
has already concluded the evidence was sufficient to uphold Appellant’s convictions.
Johnson II, 560 S.W.3d at 230 (holding evidence sufficient to support two theft
convictions); see also Snowden, 353 S.W.3d at 825 (concluding error was harmless when
substantial, “if not overwhelming,” evidence weighed against the appellant).
While we conclude the trial court did not abuse its discretion in overruling the
objection to the prosecutor’s comment, even if the court did abuse its discretion, we
are persuaded beyond a reasonable doubt that the comment made no direct
contribution to the jury’s determination that Appellant was guilty of theft. Therefore,
we hold that the allegedly erroneous comment is harmless because it was not likely to
have moved the jury from a state of non-persuasion to persuasion on any material issue
in this case and it was not likely to have distracted or diverted the jury from its
factfinding role. See Snowden, 353 S.W.3d at 825 (concluding beyond a reasonable doubt
that any prejudice caused by the prosecutor’s comment about the appellant’s lack of in-
court remorse made no contribution to the jury’s determination that the appellant was
guilty of the underlying offense).
Accordingly, we overrule Appellant’s first point.
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III. WAS APPELLANT IMPROPERLY DENIED COUNSEL?
In his second point, Appellant argues that the trial court improperly denied him
counsel of his choice by barring one of his pro bono attorneys from participating in the
trial along with Appellant’s court-appointed lead counsel.
“The Federal and Texas Constitutions, as well as Texas statute, guarantee a
defendant in a criminal proceeding the right to have assistance of counsel.” Gonzalez v.
State, 117 S.W.3d 831, 836 (Tex. Crim. App. 2003). “The right to assistance of counsel
contemplates the defendant’s right to obtain assistance from counsel of the defendant’s
choosing.” Id. at 836–37. “However, the defendant’s right to counsel of choice is not
absolute.” Id. at 837. Thus, “the right to counsel of choice does not extend to
defendants who require counsel to be appointed for them.” United States v. Gonzalez-
Lopez, 548 U.S. 140, 151, 126 S. Ct. 2557, 2565 (2006).
In two published cases directly on point, Whitney v. State, 396 S.W.3d 696, 701
(Tex. App.—Fort Worth 2013, pet. ref’d) (mem. op.), and Trammell v. State, 287 S.W.3d
336, 343–44 (Tex. App.—Fort Worth 2009, no pet.), our court has held that a trial court
does not violate a defendant’s Sixth Amendment right to assistance of counsel when it
excludes a non-court-appointed, pro bono lawyer from actively participating as co-
counsel alongside court-appointed counsel. These holdings have been relied upon in
an unpublished memorandum opinion by a sister court. See Martinez v. State, No. 05-
17-00817-CR, 2018 WL 2434409, at *5 (Tex. App.—Dallas May 30, 2018, pet. ref’d)
(mem. op., not designated for publication) (relying on Whitney and Trammell in support
13
of the conclusion that “an appellant’s Sixth Amendment rights were not violated when
the trial court excluded his pro bono co-counsel from its proceedings”).
Appellant criticizes Trammell as going “too far” and urges that it “should be
reconsidered.” Appellant’s contention is that while “of course” an indigent defendant
is not entitled to demand appointed counsel of his choosing, once counsel has been
appointed, an indigent defendant is free to have any other attorney provide assistance
in his defense without interference from a trial court.
Although we understand Appellant’s argument, it does not fit the facts of this
case because the trial court did not prohibit all of Appellant’s pro bono attorneys from
assisting his court-appointed lead counsel. Rather, the trial court simply refused to let
one of the three pro bono co-counsel—who had apparently been quite disruptive—sit
at counsel’s table or participate in the trial. This action was within the trial court’s
discretion. See Lantrip v. State, 336 S.W.3d 343, 351–52 (Tex. App.—Texarkana 2011,
no pet.) (“The trial court has discretion in the administration of the courtroom in order
to maintain a proper level of decorum and dignity.”). With respect to the excluded
pro bono co-counsel, the trial court explained that
she’s not going to sit at the counsel table because of unprofessional and
undignified conduct for the entire day yesterday, which was she was
talking loudly throughout the proceedings; she was laughing; she was
waving her arms around; she was turning around and talking to people in
the gallery; she was passing papers back and forth to people in the gallery;
and she was causing a disruption for the entire day. And I chastised her
several times, and then she moved into the gallery and continued to engage
in that conduct by talking and laughing and making faces and moving her
14
hands around. And she was a disruption to the entire courtroom for the
duration of the trial yesterday.
I did not bar her from the courtroom. I did not bar her from working on the
case. She can be present in the gallery in a respectful manner, and she can advise you
on anything you want her to advise you on or that she wants to advise you on. But she
is not going to sit at the counsel table when she cannot behave as an officer
of the court. [Emphasis added.]
Appellant’s court-appointed counsel was not disqualified or prohibited from
participating at trial. Further, the trial court reminded Appellant’s counsel that to the
extent he had delegated cross-examination to the barred pro bono attorney, he was free
to ask for a short recess or to reserve cross-examination for the end of the trial so that
he could effectively prepare. 3 Moreover, one of the non-barred pro bono attorneys
cross-examined two of the State’s witnesses and questioned one of the Defense’s
witnesses on direct examination after the one pro bono attorney had been prohibited
from participating in the trial.
Therefore, because we believe Whitney and Trammell were correctly decided and
because Appellant was not denied the right to counsel, we hold that Appellant’s Sixth
Amendment rights were not violated when the trial court prohibited a disruptive
3
Indeed, although the pro bono attorney was barred by the trial court from sitting
at counsel’s table, passing notes to counsel’s table, or otherwise participating in the trial,
she was permitted to stay in the gallery and advise Appellant’s court-appointed lead
counsel on any matter. When Appellant’s court-appointed lead counsel objected and
asserted that the aforementioned pro bono attorney had already prepared to cross-
examine a witness, the trial court reminded Appellant’s lead counsel that he could make
allowances by reserving his cross-examination for the end of trial or asking for a short
recess to confer with the pro bono attorney.
15
pro bono co-counsel from directly participating in the trial. See Whitney, 396 S.W.3d at
701; Trammell, 287 S.W.3d at 343–44.
Accordingly, we overrule Appellant’s second point.
IV. DOES THE JUDGMENT NEED TO BE MODIFIED?
In his third point, Appellant argues that one of the two judgments should be
modified because both included a $10,000 fine as punishment for each count of the
underlying theft offense even though the trial court ordered the sentences to run
concurrently.4 Appellant also complains that both judgments include and incorporate
separate orders5 to withdraw funds from Appellant’s inmate account for each $10,000
The trial court signed two judgments—one for each count. The judgment for
4
Count One included a fine of $10,000 and court costs of $309, while the judgment for
Count Two only provided for a fine of $10,000. Appellant does not challenge the $309
in court costs.
5
Although these instruments are styled as “orders,” we recognize that they are
not orders in the traditional sense. See Ramirez v. State, 318 S.W.3d 906, 907 (Tex.
App.—Waco 2010, no pet.) (“Although called an ‘order,’ the document [appellant] is
seeking to have reviewed is nothing more than the notice to the Texas Department of
Criminal Justice that a judgment has been rendered against [appellant] and that,
pursuant to the statute, the Department should withdraw money from his inmate
account.”); Snelson v. State, 326 S.W.3d 754, 755 n.1 (Tex. App.—Amarillo 2010, no pet.)
(explaining that the withdrawal order “is not an ‘order’ in the traditional sense of a court
order” and is instead a notification issued pursuant to section 501.014(e) of the
government code); see also Tex. Gov’t Code Ann. § 501.014(e). Thus, to avoid
confusion, we, like other courts have done, will refer to these instruments herein as
“withdrawal notices.” See, e.g., Snelson, 326 S.W.3d at 755 n.1 (“Therefore, rather than
refer to that document as an order, we prefer to use the term ‘withdrawal notification’
to avoid confusion[.]”).
16
fine.6 Although not raised by Appellant, our review of the record also reveals that there
are two separate corresponding bills of cost—one for Count One reflecting a $10,000
fine and $309 in court costs for a total of $10,309, and the other for Count Two
reflecting only a $10,000 fine.
The State concedes that in this case, because the sentences run concurrently,
Appellant is only responsible for one $10,000 fine—not two $10,000 fines for a total
fine of $20,000—but it nevertheless disagrees that the judgment should be modified.
The State argues that there is no proof that the prison clerks and administrators have
treated or will treat the two fines cumulatively rather than concurrently. The State
further argues that we should not modify the withdrawal notice because it is a civil
matter, governed by the government code. See Tex. Gov’t Code Ann. § 501.014(e);
Harrell v. State, 286 S.W.3d 315, 319 (Tex. 2009); In re Johnson, 280 S.W.3d 866, 869, 873
(Tex. Crim. App. 2008). Finally, the State alleges that any complaint about the
withdrawal notices should have been raised in the trial court and was “forfeited”
because it was not.
We agree with Appellant and modify the judgment for Count Two.
The penal code provides that sentences for more than one offense involving
certain crimes run concurrently. See Tex. Penal Code Ann. § 3.03(a). The court of
criminal appeals has held that section 3.03 applies to a defendant’s entire sentence,
6
In accordance with the judgment for Count One, that attached withdrawal
notice includes an additional $309 in court costs for a total of $10,309.
17
which includes fines. See State v. Crook, 248 S.W.3d 172, 174, 177 (Tex. Crim. App.
2008). Thus, “[w]hen sentences are ordered to run concurrently, the judgment should
not reflect a cumulated fine.” Habib v. State, 431 S.W.3d 737, 742 (Tex. App.—Amarillo
2014, pet. ref’d); cf. In re Buchel, No. 13-18-00509-CR, 2018 WL 6381540, at *4 (Tex.
App.—Corpus Christi–Edinburg Dec. 6, 2018, orig. proceeding) (mem. op., not
designated for publication) (“Cases following Crook have essentially concluded that a
defendant cannot be assessed more than one fine where a trial court’s order requires
that the defendant’s sentences run concurrently.”). Because a trial court’s
pronouncement sentence is oral and the judgment, which includes the sentence
assessed, is merely the written declaration and embodiment of that oral
pronouncement, a written judgment may be modified to comport with an oral
pronouncement that the fines are to run concurrently. See Wiedenfield v. State, 450 S.W.3d
905, 907 (Tex. App.—San Antonio 2014, no pet.).
Here, the trial court’s oral pronouncement was that Appellant’s sentences are to
run concurrently. Each written judgment plainly states that “THIS SENTENCE SHALL
RUN CONCURRENTLY.” However, as shown below, this statement appears after the
confinement portion of the sentence but before the fine portion of the sentence, so the
written judgments, although not technically wrong, are not models of clarity and could
be construed as stating that Appellant’s fines are cumulated:
18
....
We believe this lack of clarity is borne out by the corresponding withdrawal notices and
bills of cost.
Attached to and incorporated into the judgments are two withdrawal notices.
One notice provides for withdrawal of $10,309 and the other provides for withdrawal
of $10,000 from Appellant’s inmate account. See Aldana v. State, No. 08-13-00243-CR,
2015 WL 2344023, at *2 (Tex. App.—El Paso May 14, 2015, pet. ref’d) (not designated
for publication) (concluding there is “perhaps some ambiguity in the judgments with
regard to the fines” because “court costs are included in only one judgment, but the
fines appear in all three”). Also in the record are two bills of cost. One provides
itemized court costs of $309 and a fine of $10,000 for a total amount owed of $10,309,
while the other bill of cost provides only for a fine of $10,000. See Habib, 431 S.W.3d
at 742 (modifying judgment to delete fine even though written judgments reflect that
19
the sentences are to run concurrently when each bill of cost assessed a separate fine).
Thus, the record contains such ambiguity that a person not familiar with the
complications we outline might believe there is authorization to withdraw up to $20,000
in fines from Appellant’s inmate account, despite the State’s concession that “Appellant
is obligated to pay only one of the two $10,000 fines.” See, e.g., Aldana, 2015 WL
2344023, at *2 (recognizing that while “it is natural to say that a sentence runs
concurrently, . . . paying a fine concurrently is perhaps not as intuitive a concept”).
Accordingly, we sustain Appellant’s third point. We modify the judgment for
Count Two to delete the $10,000 fine, and we strike the corresponding $10,000
withdrawal notice and bill of cost. See Williams v. State, 495 S.W.3d 583, 591 (Tex.
App.—Houston [1st Dist.] 2016) (op. on reh’g) (reforming judgment to “delete the fine
from the bills of cost”), pet. dism’d, improvidently granted, No. PD-0947-16, 2017 WL
1493488 (Tex. Crim. App. 2017); Habib, 431 S.W.3d at 742 (modifying one of
judgments to delete fine when bills of cost reflected cumulated fines); see also Cantu v.
State, No. 07-16-00389-CR, 2018 WL 618610, at *5 (Tex. App.—Amarillo Jan. 25, 2018,
no pet.) (mem. op., not designated for publication) (“Here, the judgments and orders
to withdraw funds in both causes include a $10,000 fine. Accordingly, we strike the
$10,000 fine from the judgment and order to withdraw funds in trial court cause number
CR-15F-114.”). The judgment for Count One and its corresponding withdrawal notice
and bill of cost are unchanged. We affirm the judgments as modified.
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V. CONCLUSION
Having resolved Appellant’s three points we were instructed to address on
remand, we affirm the trial court’s judgments as modified.
/s/ Dabney Bassel
Dabney Bassel
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: May 23, 2019
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