             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-18-00321-CR
          No. 02-18-00322-CR
     ___________________________

JASON ARTHUR DUCHESNEAU, Appellant

                    V.

         THE STATE OF TEXAS


On Appeal from County Criminal Court No. 1
           Tarrant County, Texas
    Trial Court Nos. 1522440, 1522441


  Before Birdwell, Bassel, and Womack, JJ.
  Memorandum Opinion by Justice Bassel
                           MEMORANDUM OPINION

                                   I. Introduction

      Appellant Jason Arthur Duchesneau appeals his convictions for assault causing

bodily injury to a family member and interference with an emergency call, which were

tried together in a single proceeding. See Tex. Penal Code Ann. §§ 22.01(a), 42.062(a).

In four points, Duchesneau argues that the trial court violated his right to confront

the witnesses against him when it admitted a dash cam video and recordings of two

911 calls; that Texas Code of Criminal Procedure article 102.008(a), which assesses the

district attorney fee, is unconstitutional; and that he was unlawfully assessed duplicate

court costs. We hold that (1) Duchesneau’s confrontation rights were not violated

because the dash cam video and the recordings of the two 911 calls contain

nontestimonial statements and (2) Texas Code of Criminal Procedure article

102.008(a) is not unconstitutional; accordingly, we affirm the judgment for assault

causing bodily injury to a family member. But because we hold that Duchesneau was

assessed duplicate court costs and that the court costs in the higher cause number

must be deleted, we affirm as modified the judgment for interference with an

emergency call.1




      1
       Because Duchesneau does not challenge the sufficiency of the evidence to
support his convictions, we omit a detailed factual background and set forth any facts
relevant to our analysis under each point.

                                           2
                        II. Confrontation-Clause Arguments

       In his first and second points, Duchesneau argues that the trial court violated

his right to confront the witnesses against him when it admitted a dash cam video and

recordings of two 911 calls, which each contain allegedly testimonial statements made

by witnesses who did not testify at trial.

                                A. Standard of Review

       A trial court’s decision to admit evidence is reviewed under an abuse-of-

discretion standard. Wall v. State, 184 S.W.3d 730, 743 (Tex. Crim. App. 2006).

However, if the admission of evidence involves a constitutional legal ruling, such as

whether a statement is testimonial or nontestimonial, the appellate court gives almost

total deference to the trial court’s determination of historical facts but reviews

de novo the trial court’s application of the law to those facts. See Langham v. State, 305

S.W.3d 568, 576 (Tex. Crim. App. 2010); Wall, 184 S.W.3d at 742 (applying hybrid

standard of review to issue of whether statement was testimonial).

                                  B. Applicable Law

       The Confrontation Clause of the Sixth Amendment to the United States

Constitution, applicable to the states through the Fourteenth Amendment, provides

that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” Crawford v. Washington, 541 U.S. 36, 42,

124 S. Ct. 1354, 1357, 1359 (2004); Langham, 305 S.W.3d at 575 (citing U.S. Const.

amend. VI). “[T]he most important instances in which the [Confrontation] Clause

                                             3
restricts the introduction of out-of-court statements are those in which state actors are

involved in a formal, out-of-court interrogation of a witness to obtain evidence for

trial.” Michigan v. Bryant, 562 U.S. 344, 358, 131 S. Ct. 1143, 1155 (2011). Once a

defendant raises a Confrontation-Clause objection, the burden shifts to the State to

prove either (1) that the proposed statement does not contain testimonial hearsay and

thus does not implicate the Confrontation Clause or (2) that the statement does

contain testimonial hearsay but is nevertheless admissible. See De la Paz v. State, 273

S.W.3d 671, 680–81 (Tex. Crim. App. 2008) (citing Crawford, 541 U.S. at 68, 124 S. Ct.

at 1374).

      To determine whether the admission of the recordings of the 911 calls and the

dash cam video violated the Confrontation Clause, we must first determine whether

the statements on the recordings are testimonial. In Davis v. Washington, the United

States Supreme Court explained the distinction between testimonial and

nontestimonial statements:

      Statements are nontestimonial when made in the course of police
      interrogation under circumstances objectively indicating that the primary
      purpose of the interrogation is to enable police assistance to meet an
      ongoing emergency. They are testimonial when the circumstances
      objectively indicate that there is no such ongoing emergency[] and that
      the primary purpose of the interrogation is to establish or prove past
      events potentially relevant to later criminal prosecution.

547 U.S. 813, 822, 126 S. Ct. 2266, 2273–74 (2006) (footnote omitted). A court

considers the totality of the circumstances in determining whether a statement is

testimonial. Clark v. State, 282 S.W.3d 924, 931 (Tex. App.—Beaumont 2009, pet. ref’d).

                                           4
      “Statements made to police during contact initiated by a witness at the

beginning of an investigation are generally not considered testimonial.” Cook v. State,

199 S.W.3d 495, 498 (Tex. App.—Houston [1st Dist.] 2006, no pet.). For this reason,

911 calls initiated to summon police assistance are generally nontestimonial because

they are “a cry for help” or “the provision of information enabling officers to end a

threatening situation.” Davis, 547 U.S. at 832, 126 S. Ct. at 2279; Cook, 199 S.W.3d at

498; see also Rodgers v. State, No. 09-09-00359-CR, 2010 WL 3043705, at *2 (Tex.

App.—Beaumont Aug. 4, 2010, no pet.) (mem. op., not designated for publication)

(listing cases in which courts concluded that similar 911 calls were nontestimonial).

Similarly, responses to preliminary questions by police at the scene of a crime while

police are assessing and securing the scene are not testimonial. See Spencer v. State, 162

S.W.3d 877, 882 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).

      In Davis, the Court addressed whether statements made by a victim of domestic

violence to a 911 operator were testimonial in nature. See 547 U.S. at 826–27, 126

S. Ct. at 2276–77. In determining that the caller’s statements were nontestimonial and

thus admissible, the Davis court considered the following factors: (1) the caller was

describing events as they were actually happening rather than past events; (2) any

reasonable listener would recognize that the caller was facing an ongoing emergency;

(3) when viewed objectively, the nature of what was asked and answered was such that

the elicited statements were necessary to resolve the present emergency, rather than

simply to learn what had happened in the past; and (4) the caller was frantically

                                            5
answering the 911 emergency operator’s questions over the phone in an environment

that was not tranquil or even safe. See id. at 826–27, 126 S. Ct. at 2276–77. The Davis

court concluded that the caller was “seeking aid, not telling a story about the past.”

See id. at 831, 126 S. Ct. at 2279.

       In addition, the following principles are useful in determining whether

particular statements are testimonial: (1) testimonial statements are official and formal

in nature, (2) interaction with the police initiated by a witness or the victim is less

likely to result in testimonial statements than if initiated by the police, (3) spontaneous

statements to the police are not testimonial, and (4) responses to preliminary

questions by police at the scene of the crime while police are assessing and securing

the scene are not testimonial. Amador v. State, 376 S.W.3d 339, 342–43 (Tex. App.—

Houston [14th Dist.] 2012, pet. ref’d).

       With these considerations in mind, we now examine the complained-of

statements in the 911 recordings and the dash cam video to determine whether they

were testimonial.

                                        C. Analysis

           1. Statements in the 911 Call Made by Duchesneau’s Daughter2

       In part of his second point, Duchesneau argues that the trial court abused its

discretion by admitting the recording of Daughter’s 911 call. Duchesneau contends

       2
         We use aliases to refer to the minor children. See 2d Tex. App. (Fort Worth)
Loc. R. 7; see also Tex. R. App. P. 9.8(a), 9.10. Moreover, it was noted at the outset of
the trial that Daughter and Son were out of state, and thus they did not testify at the trial.

                                              6
that the italicized portions of the following exchange between Daughter and the 911

operator were testimonial:

      [911 operator:] 911. What seems to be the emergency?

      [Daughter:] 911, I need help.

      [911 operator:] Okay, where are you at?

      [Daughter:] Mansfield.

      [911 operator:] Okay, do you know --

      [Daughter:] [Provides street name].

      [911 operator:] You’re on what drive?

      [Daughter:] [Repeats street name].

      [911 operator:] Do you know the house number?

      [Daughter:] [Gives house number].

      [911 operator:] [Repeats whole address]?

      [Daughter:] Yes, ma’am.

      [911 operator:] What’s going on?

      [Daughter:] My dad is hurting my mom.

      [911 operator:] Okay, I’m getting ‘em en route to you. Is he physically
      hurting her?

      [Daughter:] Yes! Physically hurting her!

      [911 operator:] Okay, I’m getting ‘em to you, okay?

      [Daughter:] Hurry up, hurry up!


                                                 7
      [911 operator:] I’m sending ‘em to you -- I’m sending ‘em to you, okay?

      [Daughter:] No, no, no! [Unintelligible screaming.]

      [Call ends. 3] [Emphasis added.]

The entire call lasts only one minute.

      With regard to the first Davis factor, the record demonstrates that Daughter

used the present tense and described events as they were happening; Duchesneau was

physically hurting her mother during the call. See 547 U.S. at 826–27, 126 S. Ct. at

2276–77. As to the second Davis factor, any reasonable listener would recognize that

Daughter was facing an ongoing emergency based on her initial plea for help and her

screams. See id. at 826–27, 126 S. Ct. at 2276–77. With regard to the third Davis

factor, when viewed objectively, the nature of the 911 operator’s questions and

Daughter’s answers was such that the elicited statements were necessary to resolve the

present emergency rather than simply to learn what had happened in the past;

Daughter provided the address of her home and information about what was

currently happening. See id. at 826–27, 126 S. Ct. at 2276–77. And as to the fourth

Davis factor, Daughter’s screams indicated that she was answering the 911 operator’s

questions over the phone in an environment that was not tranquil or even safe. See id.

at 826–27, 126 S. Ct. at 2276–77.




      3
       The record demonstrates that Duchesneau took Daughter’s phone from her
while she was on the phone with the 911 operator.

                                          8
      After applying the Davis factors to the recording of Daughter’s call to 911, we

conclude that the out-of-court statements on the 911 recording, when viewed

objectively, were made informally under circumstances indicating that the primary

purpose of the interrogation was to enable the police to meet an ongoing emergency,

rather than to establish or prove past events potentially relevant to later criminal

prosecution. See Hernandez v. State, 562 S.W.3d 500, 506 (Tex. App.—Houston [1st

Dist.] 2017, pets. filed); see also Rosenbusch v. State, No. 03-18-00096-CR, 2018 WL

6837741, at *2 (Tex. App.—Austin Dec. 28, 2018, no pet.) (mem. op., not designated

for publication) (holding that statements in the 911 calls made by witnesses were

nontestimonial because the calls were made primarily to seek emergency assistance

when the assault had just taken place, the victim was injured, and the callers were

either explicitly requesting law enforcement and medical personnel or were implying

that they should quickly come to the scene); Robles v. State, No. 01-16-00199-CR, 2018

WL 1056482, at *5–6 (Tex. App.—Houston [1st Dist.] Feb. 27, 2018, pet. ref’d)

(mem. op., not designated for publication) (holding that statements made during the

third 911 call, which was initiated by the victim’s son six minutes after the victim was

hit and while she was in “real pain,” were nontestimonial because the circumstances

objectively indicated that the primary purpose of the operator’s questions was to

facilitate police or medical assistance to meet an ongoing emergency).

            2. Statements in the 911 Call Made by Duchesneau’s Son



                                           9
      In the remainder of his second point, Duchesneau argues that the trial court

abused its discretion by admitting the recording of Son’s 911 call. Duchesneau

contends that the italicized portions of the following exchange between Son and the

911 operator were testimonial:

      [911 operator:] 911. Location of your emergency?

      [Son:] Um, [gives same address that Daughter provided] --

      [911 operator:] Okay, what’s going --

      [Son:] In Hudson.[4]

      [911 operator:] -- on?

      [Son:] Uh, I have an abusive father.

      [911 operator:] Okay, you said [repeats address]?

      [Son:] [Repeats address], yeah.

      [911 operator:] Okay, what’s goin’ on?

      [Son:] My -- my dad is beating my mom. I don’t know what to do.

      [911 operator:] Okay, just stay on the line; we’re getting ‘em en route,
      okay?

      [Son:] Yes, ma’am.

      [911 operator:] Okay, is she hurt? Does she need an ambulance?

      [Son:] Yes, yes, yeah, uh, no, I don’t know. Just please send an officer.

      [911 operator:] Okay, they’re on the way. Just stay on the line with me.
      Okay? --

      4
       The record does not contain an explanation for this reference.

                                              10
[Son:] Yes --

[911 operator:] Where are they now?

[Son:] They’re in the bedroom. I don’t know what’s going on.

[911 operator:] Okay.

[Son:] [Sighs]

[911 operator:] What do you hear?

[Son:] What?

[911 operator:] Do you hear anything? Do you hear crying, or what do
you hear?

[Son:] I hear screaming.

[911 operator:] Okay.

[Son:] [Breathing heavily]

[911 operator:] Okay, what’s your name?

[Son:] [Son says his name].

[911 operator:] [Son,] how old are you?

[Son:] Sixteen.

[911 operator:] Okay.
[Son:] [Breathing heavily]

[911 operator:] Who else is in the house with y’all, [Son]?

[Son:] My mom, my dad, and my sister.

[911 operator:] Okay.


                                    11
      [Son:] [Begins to cry]

      [911 operator:] Okay, just stay on the phone with me okay, and let me
      know what’s going on. They’re on the way.

      [Son:] [Crying]

      [911 operator:] Can you hear anything now?

      [Son:] No, it’s quiet, and I don’t know what’s going on. [Crying]

      [911 operator:] Okay.

      [Son:] [Crying]

      [911 operator:] It’s okay, they’re gettin’ on the way to you, alright?
      Okay, it looks like there should be an officer --

      [Son:] [Crying and says something unintelligible]

      [911 operator:] -- that’s on scene. Let me know if you see him.

      [Son:] Okay. [Sniffing] He’s not here yet.

      [911 operator:] Okay.

      [Son:] [Sniffing] Uh, wait, no, he’s here.

      [911 operator:] Okay, he is here. Okay, alright, okay, I’ll go ahead and
      let you go, okay? Thank you.

      [Son:] Thank you.

      [911 operator:] Thank you.

      [Call ends.] [Emphasis added.]

The phone call lasts two minutes and twenty-five seconds.




                                          12
      Duchesneau argues that the 911 operator was already familiar with the situation

because the same operator handled both Daughter’s call and Son’s call; thus, during

Son’s call, “the dispatcher is attempting to gather further facts regarding what has

taken place previously rather than the circumstances of any ongoing emergency.”

Duchesneau contends that Son’s statement—“I have an abusive father”—

demonstrates that the phone call was focused on “what had occurred in the past” and

that there was not “any expressed concern or discussion of an ongoing emergency.”

Considering the totality of the circumstances, as we are required to do, the record

does not support Duchesneau’s argument, which misrepresents the state of the

record.

      Instead, similar to the analysis of Daughter’s call, the record demonstrates that,

regarding the first Davis factor, Son used the present tense during the majority of his

statements and described events as they were happening; Son said that Duchesneau

“is beating my mom” and that he could “hear screaming.” See 547 U.S. at 826–27,

126 S. Ct. at 2276–77. As to the second Davis factor, any reasonable listener would

recognize that Son was facing an ongoing emergency based on his statements about

Duchesneau’s beating Mother and that he did not know what to do, his plea to send

an officer, his comment that he could hear screaming, and his crying. See id. at 826–

27, 126 S. Ct. at 2276–77. With regard to the third Davis factor, when viewed

objectively, the nature of the 911 operator’s questions and Son’s answers was such

that the elicited statements were necessary to resolve the present emergency, rather

                                          13
than simply to learn what had happened in the past; Son provided the address of his

home and information about what was currently happening. See id. at 826–27, 126 S.

Ct. at 2276–77. And as to the fourth Davis factor, Son’s heavy breathing and his

crying indicated that he was answering the 911 operator’s questions over the phone in

an environment that was not tranquil or even safe. See id. at 826–27, 126 S. Ct. at

2276–77. After applying the Davis factors to the recording of Son’s call to 911, we

conclude that the out-of-court statements on the 911 recording, when viewed

objectively, were made informally under circumstances indicating that the primary

purpose of the interrogation was to enable the police to meet an ongoing emergency

rather than to establish or prove past events potentially relevant to later criminal

prosecution. See Hernandez, 562 S.W.3d at 506; see also Rosenbusch, 2018 WL 6837741,

at *2; Robles, 2018 WL 1056482, at *5–6.

  3. Summary of Holdings on the Admissibility of Statements in the 911 Calls

      Having determined that the complained-of statements in both 911 calls were

nontestimonial, we conclude that the trial court did not abuse its discretion by

admitting the recordings of Daughter’s 911 call and Son’s 911 call. See Hernandez, 562

S.W.3d at 507. Accordingly, we overrule Duchesneau’s second point.

                      4. Statements on the Dash Cam Video

      In his first point, Duchesneau complains about the admission of Daughter’s

statements from the dash cam video. The State played a two-minute clip from the

video, which shows Officer Jason Minchew arriving at the Duchesneau residence and

                                           14
Daughter’s approaching the patrol car. Duchesneau specifically complains about the

admission of the following: (1) Officer Minchew asking Daughter, “What’s going on?

Where is everybody at?” and (2) Daughter’s reply, “My daddy’s in the house. He hurt

my mom,” as she pointed toward the house.

      Before playing the video for the jury, Officer Minchew testified that he was

dispatched to an assault in progress, that he drove alone to that location, and that he

was the first officer to arrive. Officer Minchew said that when he arrived at the scene,

Daughter approached his vehicle and indicated that there was an assault between

Mother and Duchesneau. Officer Minchew said that Daughter was upset, was crying,

and spoke quickly. As Officer Minchew approached the home, he saw that Mother

was outside and that she had blood coming from her upper lip. Officer Minchew

testified that Mother’s emotional state was similar to Daughter’s. Officer Minchew

testified that Daughter and Mother indicated that Son and Duchesneau were inside

the home. Officer Minchew said that he was concerned for Son’s safety, as well as his

own safety. The State played a two-minute clip from Officer Minchew’s dash cam

video, which contains his initial conversation with Daughter and Mother.5


      5
       After the complained-of statements were made, Officer Minchew and
Daughter walked out of the dash cam’s view. The dash cam, however, continued to
record the audio from Officer Minchew’s microphone. Officer Minchew asked,
“Who else is in the house?” Daughter answered, “My brother.” They came into
contact with Mother outside the home, and she answered Officer Minchew’s question
about who else was in the house with “my son.” Officer Minchew then asked for the
name of Mother’s husband and whether there were any weapons in the house. After
Mother replied, “No,” Officer Minchew knocked loudly on the front door. A male

                                          15
      Duchesneau relies on Bates v. State in arguing that the complained-of statements

on the dash cam video were not addressing an ongoing emergency and were thus

testimonial. 494 S.W.3d 256, 266–67 (Tex. App.—Texarkana 2015, pet. ref’d). In

Bates, the trial court admitted, over Bates’s confrontation objections, a police officer’s

dash cam video containing statements from witnesses who had seen Bates slam his

truck into his neighbor’s front porch, pinning his neighbor between the truck and his

front porch. Id. at 262. The court of appeals in Bates held that the witnesses’

statements on the dash cam video were testimonial because it was clear that the

immediate danger had passed, that the officers were investigating a completed crime,

that there was no danger that Bates would abscond (he was sitting on the porch

waiting for the police when they arrived), and that he no longer posed any danger to

others at the scene (he was handcuffed and placed in a police car shortly after police

arrived). Id. at 262–63.

      Here, unlike in Bates, the record demonstrates that Daughter’s responses to

Officer Minchew’s initial questions upon arriving at the scene of the crime were not

testimonial. Officer Minchew arrived at the scene of the assault approximately one

minute after he was dispatched. Daughter came up to Officer Minchew as soon as he

exited his vehicle. The questions that Officer Minchew posed to Daughter sought to


voice, presumably Duchesneau’s, asked who was at the door, and Officer Minchew
answered, “Mansfield Police.” Duchesneau opened the door, and Officer Minchew
instructed him to turn around and to put the phone down and ultimately handcuffed
him.

                                           16
determine what was presently happening, not what had happened in the past, and to

learn where Duchesneau was in order to assess and secure the scene. Both Daughter

and Mother appeared to be upset, and Mother—the complainant—had blood on her

lip. Although Mother and Daughter were separated from Duchesneau when Officer

Minchew arrived, Duchesneau had not been apprehended and was in the home with

Son. See Bryant, 562 U.S. at 359, 363, 131 S. Ct. at 1156, 1158 (emphasizing that for an

ongoing emergency to exist, there does not have to be a continuing threat to the

original victim; instead, there could be a continuing threat to the general public or

even to the police responding to the situation after the initial threat to the first victim

had been neutralized).

      Having considered the totality of the circumstances, we conclude that the

primary purpose of Officer Minchew’s two questions immediately after arriving on

the scene was to enable him to respond to an ongoing emergency or to render aid in

response to the 911 calls requesting help for Mother. Consequently, Daughter’s

statements to Officer Minchew at the outset of the dash cam video were

nontestimonial, and their admission did not violate the Confrontation Clause. See

Washington v. State, No. 05-14-00604-CR, 2015 WL 4178345, at *7 (Tex. App.—Dallas

July 10, 2015, no pet.) (not designated for publication) (holding that the primary

purpose of obtaining the witness’s statements was to respond to an ongoing

emergency when police questioned witness shortly after two people had just been

shot, the suspect was at large, and the witness was in a great deal of distress while

                                            17
making statements); see also Villanueva v. State, No. 01-18-00115-CR, 2019 WL

1186807, at *3 (Tex. App.—Houston [1st Dist.] Mar. 14, 2019, pet. filed) (holding as

nontestimonial the witness’s statements that were made to police at the crime scene

nine minutes after the crime was committed and when the perpetrator had not been

apprehended); Amador, 376 S.W.3d at 343 (holding that the primary purpose of

obtaining the witness’s statements was to respond to an ongoing emergency when

police spoke to witness at the scene shortly after an armed robbery and believed that

armed assailants were still in the area). We therefore hold that the trial court did not

abuse its discretion by admitting the dash cam video, and we overrule Duchesneau’s

first point.

                III. Article 102.008(a) Is Constitutional on Its Face

       As reflected in the itemized bill of costs in the assault case, the trial court

assessed $25 for “FEE SERVICES PROSECUTOR/DA.”

       In his fourth point, Duchesneau argues that Texas Code of Criminal Procedure

article 102.008(a), which assesses the district attorney fee, is unconstitutional. See Tex.

Code Crim. Proc. Ann. art. 102.008(a). Duchesneau contends that article 102.008(a)

is unconstitutional to the extent that it allocates funds to the county’s general fund

because those funds allow spending for purposes other than legitimate criminal justice

purposes in violation of the separation of powers provision of the Texas constitution.

We construe Duchesneau’s argument as a facial challenge.



                                            18
       This court recently set forth a detailed analysis explaining that because

interrelated statutes “direct[] the fee to be expended as compensation for the

prosecuting attorney,” which is kept separate from other county funds, the $25 fee is

expended for a legitimate criminal justice purpose. See Tyler v. State, 563 S.W.3d 493,

503 (Tex. App.—Fort Worth 2018, no pet.).6 In accordance with our decision in

Tyler, we hold that article 102.008(a) is facially constitutional. See id. We overrule

Duchesneau’s fourth point.

                              IV. Duplicate Court Costs

       In his third point, Duchesneau argues that he was unlawfully assessed duplicate

court costs of $259. To rectify the error, Duchesneau requests that we modify the

interference-with-an-emergency-call judgment, which has the higher cause number, by

deleting the court costs assessed. The State agrees.

       Texas Code of Criminal Procedure article 102.073 provides for the assessment

of court costs in a single criminal action 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.



      Duchesneau’s brief acknowledges that this court has held contrary to his
       6

argument.

                                            19
Tex. Code Crim. Proc. Ann. art. 102.073(a)–(b). When a trial court erroneously

assesses court costs for multiple convictions that were tried in a single proceeding, we

retain the court costs for the offense of the highest category and modify the judgment

in the offense of the lower category to delete the duplicate court costs. See Santoro v.

State, Nos. 02-18-00039-CR, 02-18-00040-CR, 2018 WL 3153564, at *2 (Tex. App.—

Fort Worth June 28, 2018, no pet.) (mem. op., not designated for publication) (citing

Tex. Code Crim. Proc. Ann. art. 102.073(b)). Moreover, when the convictions are the

same category of offense and the costs are all the same, the court costs should be

based on the lowest cause number. See Williams v. State, 495 S.W.3d 583, 590 (Tex.

App.—Houston [1st Dist.] 2016) (op. on reh’g), pet. dism’d, No. PD-0947-16, 2017

WL 1493488, at *1 (Tex. Crim. App. Apr. 26, 2017) (not designated for publication).

      Here, Duchesneau was convicted in a single proceeding of assault causing

bodily injury to a family member and interference with an emergency call. Despite

that both offenses were tried in a single proceeding, the trial court assessed $259 in

court costs for each conviction. Both offenses are Class A misdemeanors. See Tex.

Penal Code Ann. § 22.01(b) (stating that assault is a Class A misdemeanor); id.

§ 42.062(c) (stating that interference with an emergency call is a Class A

misdemeanor). Because both judgments include court costs of $259 and because

both offenses are Class A misdemeanors, we modify the interference-with-an-

emergency-call judgment, as agreed to by the State, to delete the assessed court costs



                                          20
in trial court cause number 1522441.7 See Williams, 495 S.W.3d at 590; see also Cates v.

State, 402 S.W.3d 250, 251–52 (Tex. Crim. App. 2013) (concluding that when trial

court erroneously includes certain amounts as court costs in judgment, appeals court

should modify judgment to delete erroneous amount).           Accordingly, we sustain

Duchesneau’s third point.

                                   V. Conclusion

      Having overruled Duchesneau’s first, second, and fourth points, we affirm the

judgment in trial court cause number 1522440 (our case number 02-18-00321-CR),

but having sustained his third point, we modify the judgment in trial court cause

number 1522441 (our case number 02-18-00322-CR) to delete the assessed court

costs of $259 and affirm that judgment as modified.

                                                      /s/ Dabney Bassel

                                                      Dabney Bassel
                                                      Justice
Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: June 13, 2019




      7
        Our disposition does not alter the $1,000 fine that was assessed in the
interference-with-an-emergency-call judgment.

                                          21
