Daniel Gonzales-Ortiz v. the State of Texas

       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-21-00532-CR
                                     NO. 03-21-00533-CR


                               Daniel Gonzales-Ortiz, Appellant

                                               v.

                                 The State of Texas, Appellee


            FROM THE 277TH DISTRICT COURT OF WILLIAMSON COUNTY
 NOS. 18-1373-K277 & 18-1374-K277 THE HONORABLE SID L. HARLE, JUDGE PRESIDING



                           MEMORANDUM OPINION


               In consolidated cases, appellant Daniel Gonzales-Ortiz was convicted by a jury of

two offenses of sexual assault of a child and sentenced to twenty years’ confinement and a

$10,000 fine for each offense. See Tex. Penal Code § 22.011(a)(2). The trial court ordered that

the sentences run concurrently. See id. § 3.03(b)(2)(A).

               In each appeal, Appellant’s court-appointed attorney has filed a motion to

withdraw supported by a brief concluding that the appeal is frivolous and without merit. The

briefs meet the requirements of Anders v. California by presenting a professional evaluation of

the records demonstrating why there are no arguable grounds to be advanced. See 

 (1967); Garner v. State, 

 (Tex. Crim. App. 2009); see also Penson v.

Ohio, 

, 81–82 (1988). Appellant’s counsel has certified to this Court that he sent

copies of the motions and briefs to appellant, advised appellant of his right to examine the
appellate records and file a pro se response, and provided a motion to assist appellant in

obtaining the records. See Kelly v. State, 

, 319–20 (Tex. Crim. App. 2014); see

also Anders, 

. To date, appellant has not filed a pro se response or requested an

extension of time to file a response in either appeal.

               We have conducted an independent review of the records—including the record

of the trial and sentencing proceedings below and appellate counsel’s briefs—and find no

reversible error. See Anders, 

; Garner, 

; Bledsoe v. State,

, 826–27 (Tex. Crim. App. 2005). We agree with counsel that the records

present no arguably meritorious grounds for review, and the appeals are frivolous. However, we

also agree with counsel that the trial court’s written judgments of conviction contain non-

reversible errors in its assessment of court costs.

               First, as reflected in the certified bill of costs in each cause number, the trial

court improperly assessed duplicative court costs.       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. Tex. Code Crim. Proc.

art. 102.073(a). For purposes of this rule, “a person convicted of more than one offense in

the same trial is convicted of those offenses in a ‘single criminal action.’” Johnson v. State,

No. 05-19-00641-CR, 

, at *5 (Tex. App.—Dallas Aug. 17, 2020, no pet.)

(mem. op., not designated for publication) (citing Hurlburt v. State, 

, 201–04

(Tex. App.—Waco 2016, no pet.). When the convictions are for the same category of offense,

and the costs are the same, court costs should be assessed on the lowest trial court cause number.

Williams v. State, 

 (Tex. App.—Houston [1st Dist.] 2016), pet. dism’d,




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improvidently granted, No. PD-0947-16, 

 (Tex. Crim. App. Apr. 26, 2017)

(per curiam) (not designated for publication).

               The trial court assessed the same court costs in each cause number for total costs

of $815.00 in each. Because both convictions have the same category of offense, we modify the

judgment for the higher cause number, 18-1374-K277 (appellate cause number 03-21-00533-

CR), removing the duplicative court costs for total costs of $0.00. See Williams, 

; Dulin v. State, Nos. 03-18-00523-CR, 03-18-00524-CR, 

, at *2 (Tex.

App.—Austin July 30, 2021, no pet.) (mem. op., not designated for publication); see also Tex. R.

App. P. 43.2; Bigley v. State, 

, 27–28 (Tex. Crim. App. 1993) (recognizing that

appellate courts have power to modify incorrect judgments); Stahmann v. State, Nos. 03-19-

00213-CR, 03-19-00214-CR, 03-19-00215-CR, 

, at *3–4 (Tex. App.—Austin

Jan. 23, 2020, no pet.) (mem. op., not designated for publication) (modifying judgments to

remove unauthorized court costs before affirming convictions in frivolous appeal under Anders).

               Second, as part of the total court costs assessed in cause number 18-1373-K277

(appellate cause number 03-21-00532-CR), the trial court erroneously assessed a $105.00 local

consolidated court cost and a $185.00 state consolidated court cost. The Cost Act overhauled the

statutory court cost scheme in criminal cases, increasing the state consolidated fee from $133.00

to $185.00 and creating a new “local consolidated fee.” Contreras v. State, Nos. 05-20-00185-

CR, 05-20-00186-CR 

, at *9 (Tex. App.—Dallas Dec. 23, 2021, no pet.)

(mem. op., not designated for publication). The changes made by the Cost Act “did not become

effective until January 1, 2020, and applied only to costs, fees, or fines assessed on convictions

for offenses committed on or after the effective date.” Shuler v. State, 

, 690–91

(Tex. App.—Dallas 2022, no pet.) (citing Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 1.03,


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sec. 133.102(a)(1), §§ 5.01, 5.04, 

, 3982, 4035 (current version

at Tex. Loc. Gov’t Code § 133.102(a)(1))); see also Hayes v. State, No. 12-20-00222-CR,

, at *2 (Tex. App.—Tyler Apr. 14, 2021, no pet.) (mem. op., not designated

for publication) (“The Local Consolidated Fee on Conviction of Felony only applies to

defendants who are convicted of offenses committed on or after January 1, 2020.” (citing Tex.

Loc. Gov’t Code § 134.101)).

              Because appellant was convicted for offenses committed on February 28, 2014,

he should not have been assessed the $105.00 local consolidated court cost and should have been

assessed a lesser state consolidated court cost of $133.00. See Shuler, 650 S.W.3d at 691; Hayes,

, at *2. We therefore modify the judgment in cause number 18-1373-K277

to remove the unauthorized costs, for total court costs of $658.00. See Tex. R. App. P. 43.2;

Bigley, 865 S.W.2d at 27–28; Stahmann, 

, at *3–4.

              Counsel’s motions to withdraw are granted.        The trial court’s judgments of

conviction, modified as described above, are affirmed.



                                            __________________________________________
                                            Melissa Goodwin, Justice

Before Justices Goodwin, Baker, and Smith

Modified and, as Modified, Affirmed

Filed: December 16, 2022

Do Not Publish




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