                                      In The
                                 Court of Appeals
                        Seventh District of Texas at Amarillo
                                 ________________________

                                     No. 07-17-00228-CR
                                     No. 07-17-00229-CR
                                     No. 07-17-00230-CR
                                     No. 07-17-00231-CR
                                 ________________________


                        VICTOR ANDREW APODACA, APPELLANT

                                                 V.

                             THE STATE OF TEXAS, APPELLEE



                            On Appeal from the 100th District Court
                                     Carson County, Texas
                    Trial Court No. 6021; Honorable Stuart Messer, Presiding


                                         February 25, 2019

                                MEMORANDUM OPINION
                       Before QUINN, C.J., and PIRTLE and PARKER, JJ.


       Appellant, Victor Andrew Apodaca, was convicted by a jury of two counts of

aggravated assault against a public servant,1 one count of evading arrest in a motor


       1 See TEXAS PENAL CODE ANN. § 22.02(a)(2) (West 2011). An offense under this section is a first
degree felony. Id. at § 22.02(b)(2)(B).
vehicle,2 and one count of committing a terroristic threat.3 At the same time, the jury

rejected Appellant’s affirmative defense of insanity. Prior to trial, the range of punishment

for each offense was enhanced by two prior felony convictions;4 however, at trial, the

State presented only one prior felony conviction.5


        Appellant entered a plea of “true” as to the enhancement allegation and the jury

assessed his sentence at sixty years confinement and a fine of $500 for each count of

aggravated assault; twenty years confinement and a fine of $500 for the one count of

evading arrest in a motor vehicle; and twenty years confinement and a fine of $500 for

the one count of terroristic threat. The trial court entered separate judgments for the four

offenses alleged in the indictment.6 In each of those judgments, the trial court ordered

that the sentences would run concurrently.




        2 See TEXAS PENAL CODE ANN. § 38.04(a) (West 2016). An offense under this section is a third

degree felony. Id. at § 38.04(b)(2)(A).

        3 See TEXAS PENAL CODE ANN. § 22.07(a)(5) (West Supp. 2018). An offense under this section is
a third degree felony. Id. at § 22.07(e).

        4  See TEXAS PENAL CODE ANN. § 12.42(d) (West Supp. 2018). An offense enhanced under this
section is punishable by imprisonment in the Texas Department of Criminal Justice for life, or for any term
of not more than 99 years or less than 25 years. Section 12.42(a) makes no provision for the assessment
of a fine.

        5See TEXAS PENAL CODE ANN. § 12.42(a), (c)(1) (West Supp. 2018). A third-degree felony offense
enhanced under subsection (a) is punishable as a second degree felony (imprisonment for any term of not
more than 20 years or less than 2 years and a fine not to exceed $10,000). A first degree felony offense
enhanced under subsection (c)(1) is punishable by imprisonment in the Texas Department of Criminal
Justice for life, or for any term of not more than 99 years or less than 15 years and a fine not to exceed
$10,000.

       6 During a pretrial hearing on June 26, 2017, the State waived the count alleging the offense of

escape. See TEX. PENAL CODE ANN. § 38.06 (West 2016).



                                                    2
       On appeal, Appellant raises two issues: (1) whether Appellant’s Fourth

Amendment rights under the United States Constitution7 were violated when he was

detained under the pretext of a consensual encounter, rendering the events that followed

inadmissible and (2) whether the evidence at trial was legally and factually sufficient to

support the jury’s rejection of his insanity defense. We modify the judgments pertaining

to the offenses of evading arrest and terroristic threat to correct a clerical error and affirm

the trial court’s judgments as modified.


       BACKGROUND

       Appellant was charged by indictment with two counts of aggravated assault against

a public servant, one count of evading arrest in a motor vehicle, one count of escape

(subsequently dismissed), and one count of committing a terroristic threat, arising out of

facts and circumstances that occurred at a Love’s truck stop in Carson County, Texas,

on September 13, 2015. The indictment alleged that Appellant committed the offenses

of aggravated assault by physically dragging with his vehicle DPS Troopers Anthony Mata

and Brian Ihnen while they were in the process of discharging their official duties by

attempting to arrest or detain Appellant. The indictment further alleged that during the

commission of those offenses, Appellant exhibited a deadly weapon, to-wit: a motor

vehicle. The indictment also alleged that Appellant intentionally fled from DPS Sergeant

Daniel Rangel while knowing he was a peace officer that was attempting to lawfully arrest

or detain him. Finally, the indictment alleged that Appellant threatened to commit an




       7   U.S. CONST. amend. IV.


                                              3
offense involving multiple people, namely, to use a bomb with intent to place the public

or a substantial group of the public in fear of serious bodily injury.


       In April 2016, Appellant filed a motion to suppress asserting he was illegally

detained from the outset of his encounter with Sergeant Rangel. By that motion, Appellant

sought to suppress all evidence of what transpired after the encounter. In June 2017,

Appellant filed his notice of intent to raise an insanity defense and the State filed its notice

of intent to seek enhanced punishment based upon a prior felony conviction for breaking

and entering and a second prior felony conviction for battery upon a peace officer. In

June 2017, a three-day jury trial was held.


       The State’s evidence at trial established that, on September 13, 2015, Sergeant

Rangel was participating in the search of a vehicle alongside Interstate 40 when he

observed a driver operating a Cadillac in a very robotic fashion. When the traffic stop

was completed, Sergeant Rangel and his partner caught up with the Cadillac on Interstate

40 and noticed that it suddenly slowed below the speed limit. Although Sergeant Rangel

did not observe any traffic violations, he did decide to follow the vehicle into a Love’s truck

stop hoping to abate his suspicions by speaking with the driver.


       Without turning on his overhead lights or hindering the Cadillac’s ability to leave

the gas pumps in any way, Sergeant Rangel pulled into the truck stop. He was wearing

his trooper uniform and badge. He walked over to the Cadillac and knocked on the driver-

side window. Appellant rolled down the window and Sergeant Rangel asked him if he

was willing to speak with him. Appellant agreed. Sergeant Rangel then asked Appellant

if he was willing to speak to him outside the vehicle and Appellant complied.


                                               4
      When Appellant emerged from the Cadillac, the belt to his pants was broken.

When Sergeant Rangel noted that his belt was broken, Appellant explained that he broke

it while seated in the Cadillac.      Sergeant Rangel observed that Appellant was

experiencing a high level of anxiety as evidenced by extreme nervousness and an inability

to stand still or be quiet. When Sergeant Rangel asked his name, he gave his name as

Andrew Rodriguez. He could not produce any identification and said he was traveling

from Amarillo to Arkansas. Before questioning the passenger, Sergeant Rangel gave

Appellant a pad and pencil and asked him to write his name and identifying information.

This time he wrote down a different name—Victor Apodaca.


      On further inquiry, Sergeant Rangel found out the Cadillac was plated out of New

Mexico and was registered to two females. He also discovered that the passenger did

not have any identification on him and did not know the destination. At this point, he

returned to his patrol vehicle and requested assistance.           He then ran Appellant’s

identifying information through his computer and received nothing. About this time,

Sergeant Ihnen, assigned to the K-9 unit, arrived to assist him.


      Sergeant Rangel returned to Appellant and asked if he could search his person.

Appellant assented. He then asked if he could search the vehicle and Appellant refused.

Sergeant Rangel then conducted an “open air” canine sniff around the outside of the

Cadillac and the dog alerted. When he advised Appellant of the results of the “open air”

sniff, Appellant admitted there was contraband in the vehicle. Upon searching its interior,

Sergeant Rangel discovered some drug paraphernalia and a bag containing a small

amount of marijuana. About the time he completed his search, Sergeant Rangel heard



                                            5
Sergeant Ihnen calling him. When he looked up, Sergeant Ihnen was struggling with

Appellant.


       While Sergeant Rangel was searching the Cadillac, Appellant apparently became

very agitated and started yelling that the troopers could not search his vehicle. About this

same time, Appellant started making gestures and hand signals to the passenger, who

had exited the vehicle and was lying face down on the ground. Sergeant Ihnen attempted

to put handcuffs on Appellant, but he resisted and began pulling away. At this point,

Sergeant Ihnen realized things were getting out of hand and he yelled for Sergeant

Rangel. Even with the help of Sergeant Rangel, however, Appellant managed to get

away from the two troopers and started yelling that he “had a bomb in his ass and he was

going to blow up everyone at the station.” Appellant told his passenger to corroborate his

threat. While these threats were being made, there were bystanders in the Love’s parking

lot watching the events unfold.


       About this time, Trooper Mata arrived and observed that the two troopers had their

tasers drawn and pointed at Appellant, who was standing next to his vehicle. Trooper

Mata could hear Appellant yelling that “he had a bomb up his ass and he was going to

blow everybody up.”


       During the commotion, Appellant was able to jump into the driver’s seat of his

vehicle and he began revving the engine. Sergeant Ihnen managed to get Appellant in a

headlock and Trooper Mata, who had been trying to outflank Appellant, was partially in

the vehicle on the passenger side, attempting to grab the keys. Once Appellant was able

to get the vehicle in “Reverse,” he suddenly backed up toward the front entrance to the


                                             6
truck stop before veering toward the diesel pumps. During this maneuver, both troopers

were hanging onto the vehicle and being dragged through the parking lot.


        Trooper Mata managed to disengage himself from the Cadillac before it came to a

stop just short of the diesel pumps. Sergeant Ihnen somehow managed to get the

Cadillac in “Park” and was struggling with Appellant while yelling for him to stop. Both

troopers were also attempting to use their electroshock guns to subdue him.                  Sergeant

Ihnen managed to shoot one electroshock prong into Appellant, at which point he

threatened that Sergeant Ihnen was “going to die.”


        When the vehicle sped away in reverse, Sergeant Ihnen was the only one in the

Cadillac with Appellant. He was shooting Appellant with his electroshock gun to no avail

and his right foot was being dragged by the vehicle. When the electroshock gun proved

ineffective, Sergeant Ihnen began hitting Appellant to persuade him to stop. Appellant

managed to get the Cadillac in “Drive” and exited the parking lot heading down an

Interstate 40 ramp traveling the wrong direction. He kept threatening Sergeant Ihnen that

he “was going to die.” Sergeant Ihnen managed to push himself from the vehicle onto

the parking lot exit ramp, causing him to land on his back and hit his head on the

pavement.8


        Appellant later abandoned the Cadillac in an open field and escaped to Amarillo.

Acting on a tip, Texas Rangers located Appellant at a residence and called an Amarillo

SWAT team to assist. When the SWAT team confronted Appellant by loudspeaker, he



        8He was taken to a nearby hospital where he was treated for concussion or brain swelling and was
out of work in excess of a month.

                                                   7
responded that he had hostages in the house. After a substantial period of negotiation,

the SWAT team deployed two rounds of chemical agents into the residence. Shortly

thereafter, the screen door opened and Appellant appeared behind a woman. The SWAT

team’s repeated commands to surrender were ignored and Appellant continued to use

the woman as a shield. He had a pistol tucked in his waistband and an arm around the

woman’s neck. A SWAT officer slowly advanced toward Appellant and managed to strike

him with the muzzle of his gun. With the assistance of other officers, Appellant was

handcuffed and taken to jail.


        In his opening statement, Appellant’s attorney represented that the defense did not

dispute any of the facts asserted by the prosecution but instead contended Appellant was

insane at the time of the commission of the crimes. In support of his insanity defense,

Appellant’s counsel offered the testimony of Dr. Steven Schneider, a licensed

psychologist and clinical neuropsychologist.9 At trial, Dr. Schneider testified that he had

conducted an evaluation of Appellant including a competency and sanity evaluation. Prior

to drafting his report, he reviewed Appellant’s hospital records, school records, CPS case

materials, and historical documents relating to Appellant’s mental health issues.


        As a result of his evaluation, Dr. Schneider concluded that Appellant had some

psychotic issues that began in his late adolescence or early adulthood. In his opinion,

Appellant had a history of mental problems and abnormal perceptual disturbances that


        9 In April 2017, the trial court granted Appellant’s motion for a psychiatric examination to determine
whether he was sane at the time the alleged offenses occurred. Pursuant to the trial court’s order, Dr.
Schneider conducted an evaluation. In his report dated June 11, 2017, Dr. Schneider concluded that
Appellant did not know at the time of the commission of the alleged offenses, whether his conduct was right
or wrong and was incapable of conforming his conduct to the requirements of the law. He also concluded
that Appellant was an individual with mental illness without psychosis and was not a person with mental
retardation.

                                                      8
would lead him to believe it was possible that he was not able to function properly at the

time the offenses were committed.            He further diagnosed Appellant as having an

unspecified psychotic disorder, major depressive disorder, generalized anxiety disorder,

and a severe unspecified neuro-cognitive disorder.


       On cross-examination, Dr. Schneider testified that, at the time of the offense,

Appellant had a severe mental disease or defect. However, after reviewing the video and

audio recorded at the time of the offense, he changed his conclusions and opined that

Appellant knew what he was doing and he knew that his conduct was wrong.                          Dr.

Schneider further opined that at the time Appellant committed the offenses on September

13, 2015, he was sane. He testified that his amended opinion was due to the State’s

production of and his review of the video and audio recordings of the commission of the

offenses. He testified that his first opinion was premature because he had only been

supplied the information the defense had provided, i.e., old medical and school records.

He testified he did not know that the video and audio recordings of the offenses existed

until after the initial evaluation, and once he viewed them, he changed his opinion based

on the new information.


       ISSUE ONE—NONCONSENSUAL ENCOUNTER

       Appellant asserts his Fourth Amendment rights10 were violated because he was

detained by Sergeant Rangel under the pretext of a consensual encounter rendering the




       10 The Fourth Amendment provides that “[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S.
CONST. amend. IV.


                                                  9
events that followed at the truck stop inadmissible. Because Appellant failed to preserve

his complaint in the trial court, we do not reach this issue on appeal.


       For a party to preserve a complaint for appellate review, the complaining party

must make a specific objection and obtain a ruling on the objection. Wilson v. State, 71

S.W.3d 346, 349 (Tex. Crim. App. 2002). In addition, a party must make the complaint

at the earliest possible opportunity, and the point of error on appeal must comport with

the objection made at trial. Id. Failure to object at trial may waive even constitutional

errors. Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008). See Darland v.

State, 582 S.W.2d 452, 455 (Tex. Crim. App. 1979) (errors concerning improper

introduction of evidence under the Fourth Amendment were waivable).


       Here, Appellant filed a motion to suppress based upon an alleged illegal detention

and nonconsensual encounter between Sergeant Rangel and himself. However, the

record does not reflect that he obtained a ruling on that motion. Neither did he object at

trial to the admission of the evidence he sought to suppress by that motion. Furthermore,

Appellant never sought a jury instruction based on any alleged Fourth Amendment

violation, nor did he seek a finding that Sergeant Rangel’s initial encounter with him was

nonconsensual. Accordingly, we find that the trial court rendered no “decision” or “ruling”

on Appellant’s motion and that Appellant, therefore, failed to preserve the issue for

consideration on appeal. See Yazdchi v. State, 428 S.W.3d 831, 844-45 (Tex. Crim. App.

2014). See also TEX. R. APP. P. 33.1. Appellant’s first issue is overruled.




                                             10
       ISSUE TWO—INSANITY DEFENSE

       Appellant’s second issue asserts that the evidence at trial was legally and factually

insufficient to support the jury’s implied rejection of his insanity defense. We disagree.


       APPLICABLE LAW —INSANITY

       There is a general presumption of sanity and an accused bears the burden of

proving, by a preponderance of the evidence, his insanity at the time of the offense

charged. Martinez v. State, 867 S.W.2d 30, 33 (Tex. Crim. App. 1993) (en banc). At

trial, the accused bears not only the burden of production of evidence, but also the burden

of persuasion. See Bigby v. State, 892 S.W.2d 864, 878 (Tex. Crim. App. 1994), cert.

denied, 515 U.S. 1162, 115 S. Ct. 2617, 132 L. Ed. 2d 860 (1995). Ultimately, whether

an accused has established the affirmative defense of insanity is a decision that lies within

the province of the trier of fact—not only as to the credibility of the witnesses, but also as

to the weight to be given that evidence. Id.


       The Texas Penal Code outlines the affirmative defense of insanity as follows:

       (a) It is an affirmative defense to prosecution that, at the time of the conduct
           charged, the actor, as a result of severe mental disease or defect, did
           not know that his conduct was wrong.

       (b) The term “mental disease or defect” does not include an abnormality
           manifested only by repeated criminal or otherwise antisocial conduct.

TEX. PENAL CODE ANN. § 8.01 (West 2011).

       Pursuant to this provision, Texas law excuses a defendant from criminal

responsibility if he proves, by a preponderance of the evidence, the essential elements of

this affirmative defense. Pham v. State, 463 S.W.3d 660, 671 (Tex. App.—Amarillo 2015,

pet. ref’d); Reyna v. State, 116 S.W.3d 362, 366 (Tex. App.—El Paso 2003, no pet.) (citing

                                               11
Meraz v. State, 785 S.W.2d 146, 150 (Tex. Crim. App. 1990)). The essential question to

be answered is whether, at the time of the conduct charged, the accused, as a result of

severe mental disease or defect, understood the nature of his conduct and whether his

conduct was wrong. TEX. PEN. CODE ANN. § 8.01(a) (West 2011); Reyna, 116 S.W.3d at

367.   The essence of an insanity defense is to excuse the accused of criminal

responsibility, even though the State has established the elements of the offense,

including the mens rea, beyond a reasonable doubt. Pham, 463 S.W.3d at 671.


       The insanity issue is not strictly medical but also involves legal and ethical

considerations. Bigby, 892 S.W.2d at 877; Reyna, 116 S.W.3d at 367. Expert testimony

may aid the jury in its determination of the ultimate issue but does not dictate the result.

See Graham v. State, 556 S.W.2d 941, 949 (Tex. Crim. App. 1978); Reyna, 116 S.W.3d

at 367. Only the jury can join non-medical components that must be considered in

deciding the ultimate issue. Bigby, 892 S.W.2d at 878; Reyna, 116 S.W.3d at 367.

Because the circumstances of the crime are always important in determining the

accused’s mental state at the time of the offense, the jury may consider such evidence

as his demeanor before and after the offense, attempts to evade the police, attempts to

conceal incriminating evidence, expressions of regret or fear of the consequences of his

action, as well as other possible motives for the offense and other explanations of his

behavior. See Graham, 566 S.W.2d at 951-52; Torres v. State, 976 S.W.2d 345, 347-48

(Tex. App.—Corpus Christi 1998, no pet.).


       STANDARD OF REVIEW

       Here, Appellant challenges the legal and factual sufficiency of the evidence to

support the jury’s implied rejection of his affirmative defense of insanity. Judge Cochran

                                            12
of the Texas Court of Criminal Appeals has aptly observed that the Court has properly

adopted the civil standards of legal and factual sufficiency for “those few instances in

criminal cases in which the burden of proof is a preponderance of the evidence,” such as

affirmative defenses. Pham, 463 S.W.3d at 671 (citing Brooks v. State, 323 S.W.3d 893,

924 (Tex. Crim. App. 2010) (Cochran, J., concurring)). In that regard, the appropriate

challenge to a jury finding concerning an issue upon which the complaining party had the

burden of proof is either that the contrary finding was established as a matter of law (legal

sufficiency), or that the existing finding was against the great weight and preponderance

of the evidence (factual sufficiency). Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co.,

766 S.W.2d 264, 275-76 (Tex. App.—Amarillo 1988, writ denied).


       LEGAL SUFFICIENCY

       When an appellant contends that the evidence was legally insufficient to support

an adverse finding on an issue upon which he had the burden of proof, he is asserting

that the contrary finding was established as a matter of law. In that situation, we construe

the issue as an assertion that the contrary was established as a matter of law. Pham, 463

S.W.3d at 672 (citing Matlock v. State, 392 S.W.3d 662, 669 (Tex. Crim. App. 2013)). In

other words, because Appellant is contending the evidence is legally insufficient to

support the jury’s rejection of his insanity defense (a matter upon which he had the burden

of proof), we construe his argument to be that his insanity defense was established as a

matter of law.


       We first search the record for evidence favorable to the finding, disregarding all

contrary evidence unless a reasonable fact finder could not. Id. If we find no evidence

supporting the finding, we then determine whether the contrary was established as a

                                             13
matter of law. Id. If there was some evidence supporting the finding, then the reviewing

court must reject appellant’s legal sufficiency claim. Id.


       FACTUAL SUFFICIENCY

       In reviewing the factual sufficiency of the jury’s rejection of an affirmative defense,

“an appellate court views the entirety of the evidence in a neutral light, but it may not

usurp the function of the jury by substituting its judgment in place of the jury’s assessment

of the weight and credibility of the witnesses’ testimony.” Pham, 463 S.W.3d at 672

(citations omitted). Ultimately, acceptance or rejection of the affirmative defense of

insanity is a matter that lies within the province of the fact finder. See Bigby, 892 S.W.2d

at 878.


       Therefore, an appellate court may sustain a claim of factual insufficiency to the

rejection of an affirmative finding of insanity only if, after setting out the relevant evidence

and explaining precisely how the contrary evidence greatly outweighs the evidence

supporting the verdict, the court clearly states why the rejection of the defense is so much

against the great weight of the evidence as to be manifestly unjust, conscience-shocking,

or clearly biased. Id.


       ANALYSIS

       Here, we find there is sufficient evidence legally and factually to support the jury’s

rejection of Appellant’s affirmative defense of insanity. Although Dr. Schneider first

opined that Appellant was insane at the time the crimes were committed, once he was

provided with the video and audio recordings of the commission of the crimes, he changed

his opinion and testified that, at the time of the commission of the crimes, Appellant was


                                              14
aware his conduct was wrong and he was sane. Furthermore, the evidence of his actions

prior to, during, and after the crimes were committed, supports the jury’s decision. At the

truck stop, Appellant was observed communicating with his passenger to garner support

for his bomb threat. When his threat was unsuccessful, he jumped into the vehicle, revved

the engine, and attempted to evade the troopers by driving away in reverse. He also

threatened the trooper who was hanging onto the Cadillac that he was going to die if he

continued to interfere with his attempt to escape. After that, he was able to successfully

evade the authorities and escape. Subsequently, he negotiated with a SWAT team

surrounding the house where he was hiding and attempted to escape custody a second

time by using a human shield. On the other hand, we have Dr. Schneider’s first opinion

based upon old school records and examinations that Appellant furnished in support of

his claim of insanity.


       Based on this conflicting testimony, the jury was free to accept or reject either

opinion offered by Dr. Schneider and assign to it whatever weight it determined that

particular opinion merited. Judging from the verdict, the jury assigned greater weight to

Dr. Schneider’s second opinion that Appellant was sane at the time the crimes were

committed. Furthermore, as outlined above, the jury was free to infer from the

circumstances of the crimes that Appellant was sane. That is, his behavior showed

forethought and planning as well as other motives or causes for his actions besides

insanity. Because we find there is factually sufficient evidence in support of the jury’s

rejection of the affirmative defense of insanity, we necessarily find there is also legally

sufficient evidence. Accordingly, Appellant’s second issue is overruled.




                                            15
        REFORMATION OF THE JUDGMENTS AND CLERK’S ORDER TO W ITHDRAW FUNDS

        In our review of the record, it has come to our attention that two of the four

judgments include a clerical error.           Count Three (evading arrest) and Count Four

(terroristic threat) indicate the “degree of offense” as a “2ND DEGREE FELONY,” when

in fact, the judgments should reflect that both offenses are third degree felonies.11


        This court has the power to modify the judgment of the court below to make the

record speak the truth when we have the necessary information to do so. TEX. R. APP. P.

43.2(b). Ramirez v. State, 336 S.W.3d 846, 852 (Tex. App.—Amarillo 2011, pet. ref'd)

(citing Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993)). Appellate courts

have the power to reform whatever the trial court could have corrected by a judgment

nunc pro tunc where the evidence necessary to correct the judgment appears in the

record. Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref'd). The

power to reform a judgment is “not dependent upon the request of any party, nor does it

turn on the question of whether a party has or has not objected in the trial court.” Id. at

529-30. Accordingly, the trial court is instructed to enter judgments nunc pro tunc to

reflect the correct degree of offenses and the clerk of the court is instructed to deliver a

copy of the corrected judgments to this court and to the Institutional Division of the Texas

Department of Criminal Justice.


        Our review of the record further indicates that the trial court clerk has heretofore

issued an Order to Withdraw Funds in the sum of $2,723.00 and a Corrected Order to



       11 As enhanced, these third-degree felony offenses were punishable as felonies of the second

degree. See § 12.42(a) (West Supp. 2018). An offense “punished as” a higher offense raises the level of
punishment, not the degree of the offense. Oliva v. State, 548 S.W.3d 518, 526-27 (Tex. Crim. App. 2018).


                                                   16
Withdraw Funds in the sum of $3,223.00. Because the clerk’s record provided in this

case does not include a Bill of Costs, we are unable to determine with exactitude the

nature of the costs being collected. To the extent that the clerk is attempting to collect

the $500 fine ordered in each of the four offenses (4 x $500 = $2,000.00 + $723 (court

costs) = $2,723.00 (the exact amount of the original order to withdraw)), the clerk would

be improperly attempting to collect the sum of $1,500.00, since concurrent fines are

discharged concurrently. See State v. Cook, 248 S.W.3d 172, 177 (Tex. Crim. App. 2008)

(holding that when sentences are ordered to run concurrently, fines are not cumulated).

Because this mistake is apparent on the face of the record, we further order the clerk of

the trial court to issue a corrected Bill of Costs and Order to Withdraw Funds and then to

deliver a copy of the same to this court and to the Texas Department of Criminal Justice.


      CONCLUSION

      As reformed, the trial court’s judgments are affirmed.




                                                       Patrick A. Pirtle
                                                            Justice


Do not publish.




                                           17
