                                  In The
                            Court of Appeals
              Sixth Appellate District of Texas at Texarkana


                                    No. 06-18-00157-CR



                             SHERI LUE WILLHITE, Appellant

                                             V.

                             THE STATE OF TEXAS, Appellee



                            On Appeal from the 6th District Court
                                  Lamar County, Texas
                                  Trial Court No. 27740




                       Before Morriss, C.J., Burgess and Moseley,* JJ.
                         Memorandum Opinion by Justice Burgess

_____________________________________
*Bailey C. Moseley, Retired, Sitting by Assignment
                                   MEMORANDUM OPINION
        A Lamar County indictment charged Sheri Lue Willhite with possession of less than one

gram of methamphetamine, and a separate indictment charged her with possession of between one

and four grams of methamphetamine and assault on a public officer. The three charges stemmed

from two separate arrests occurring two months apart, but they were all tried together in one

proceeding. Willhite entered a plea of not guilty to all the charges and pled true to the habitual-

offender allegations, raised in both indictments, that she had previously been convicted of

aggravated robbery and evading arrest in a vehicle.

        A jury found Willhite guilty of all three charges, and the trial court found the enhancement

allegations true in each case. On the charge of possession of less than one gram, Willhite was

sentenced to twenty years in prison and assessed $359.00 in court costs. On the charge of

possession of between one and four grams, she received a thirty-five-year sentence and was

assessed $369.00 in court costs. For assault on a public officer, she was sentenced to fifty-five

years in prison.

        In this case, Willhite appeals from her conviction for possession of less than one gram of

methamphetamine. 1 She contends that the trial court erred by (1) using her prior conviction for

evading arrest in a vehicle to enhance her punishment range to that of a second-degree felony and

(2) in assessing court costs against her.




1
 In companion cause number 06-18-00158-CR, Willhite appeals from her convictions of possession of between one
and four grams of methamphetamine and assault on a public officer.


                                                     2
           We modify the trial court’s judgment to: (a) assess only $10.00 in court costs against

Willhite; (b) change the degree of offense to a state jail felony; and (c) change the enhancing

statute from Section 12.42 to Section 12.425. We affirm the judgment, as modified, because

(1) the trial court properly used Willhite’s prior conviction for evading arrest in a vehicle to

enhance her punishment range, and (2) the trial court erred in assessing $349.00 in duplicate court

costs against Willhite.

I.          The Trial Court Properly Enhanced Willhite’s Punishment Range

           In her first point of error, Willhite argues that her range of punishment was improperly

enhanced under the habitual-offender statute because her prior conviction for evading arrest or

detention with a motor vehicle was not a felony.

           In this case, Willhite was charged with possession of less than one gram of

methamphetamine, a state jail felony punishable by a sentence of 180 days to two years in state

jail. See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b) (West 2017); TEX. PENAL CODE ANN.

§ 12.35(a) (West Supp. 2018). However, under Section 12.425(b) of the Texas Penal Code, her

punishment range could be enhanced to that of a second-degree felony—between two and twenty

years in prison 2—if “[1] [she had] previously been finally convicted of two felonies other than a

state jail felony punishable under Section 12.35(a), and [2] the second previous felony conviction

[was] for an offense that occurred subsequent to the first previous conviction having become final.”

TEX. PENAL CODE ANN. § 12.425(b) (West Supp. 2018).



2
    TEX. PENAL CODE ANN. § 12.33(a) (West 2011).

                                                   3
            In order to enhance Willhite’s punishment range in this case, the State alleged that Willhite

had previously been convicted of aggravated robbery on May 22, 2002, and evading arrest with a

motor vehicle on January 12, 2007. See id. Willhite pled true to the enhancement allegations.

After finding the enhancement allegations to be true, the trial court’s charge on punishment

included the enhanced punishment range.                     The issue before us is whether Willhite’s prior

conviction for evading arrest in a vehicle can be used to enhance her punishment range under

Section 12.425(b).

            Willhite argues that the prior judgment “cannot be a second degree felony as reflected on

the judgment.” She argues that, based on the language in the judgment, it must have been either a

third-degree felony or a second-degree felony with a habitual-offender finding that would enhance

the punishment range to not less than twenty-five years’ and not more than ninety-nine years’

imprisonment. She further argues that because she only received an eight-year sentence, then the

sentence would be outside the punishment range for a second-degree felony with a habitual-

offender finding. She concludes that “the judgment is objectively incorrect and cannot be relied

upon to establish that this was a prior felony conviction.”

            Willhite is correct that the judgment for the underlying evading arrest conviction

incorrectly lists the offense as a second-degree felony. Both at the time Willhite committed the

offense, August 22, 2006, and at the time of the judgment of conviction, 3 January 12, 2007, simple

evading arrest was a class B misdemeanor. However, because Willhite evaded arrest with a motor

vehicle, and because the record does not indicate that she had been previously convicted for


3
    Willhite pled guilty to evading arrest with a motor vehicle.
                                                              4
evading arrest, the prior evading arrest conviction was a state jail felony. See TEX. PENAL CODE

ANN. § 38.04(a), (b) (West 2017). 4 In addition, the available punishment range for her prior

evading arrest conviction was enhanced 5 because she had previously been convicted of aggravated

robbery and, during the underlying evasion, she used or exhibited the vehicle as a deadly weapon. 6

See TEX. PENAL CODE ANN. §12.425(b). Consequently, Willhite’s prior evading arrest conviction

was a state jail felony, and the punishment range for that prior conviction was enhanced to a

second-degree felony.

            Under Section 12.425(b), any felony may be used to enhance the punishment range of a

state jail felony offense “other than a state jail felony punishable under Section 12.35(a).” TEX.

PENAL CODE ANN. § 12.425(b). Section 12.35(a) establishes the punishment range for state jail

felonies, “except as provided by subsection (c).” TEX. PENAL CODE ANN. § 12.35(a) (emphasis

added). Section 12.35(c) states,

            An individual adjudged guilty of a state jail felony shall be punished for a third
            degree felony if it is shown on the trial of the offense that:
                    (1)     a deadly weapon . . . was used or exhibited during the commission
            of the offense or during immediate flight following the commission of the offense,
            and that the individual used or exhibited the deadly weapon. . . .

TEX. PENAL CODE ANN. § 12.35(c) (emphasis added).



4
 The record also does not indicate that another suffered serious bodily injury or death “as a direct result of an attempt
by the officer . . . from whom [Willhite was] fleeing to apprehend [her],” which would have elevated the degree of
offense to a third-degree felony or second-degree felony, respectively. TEX. PENAL CODE ANN. § 38.04(a), (b).
5
    Willhite entered a plea of true to the enhancement allegations, and the trial court found them to be true.
6
 The State incorrectly contends that the deadly weapon finding and the prior conviction elevated the degree of offense,
an error also reflected in the judgment. See TEX. PENAL CODE ANN. § 12.425(b); Martin v. State, 405 S.W.3d 944,
949–50 (Tex. App.—Texarkana 2013, no pet.).

                                                              5
         The language of subsection (c) is mandatory. State v. Brown, 314 S.W.3d 487, 490 (Tex.

App.—Texarkana 2010, no pet.). Accordingly, a prior state jail felony wherein the State alleged

and proved that “a deadly weapon . . . was used or exhibited during the commission of the offense

. . .” is punishable under Section 12.35(c), and it is not “punishable under Section 12.35(a).” Id.

         Here, the prior judgment of conviction reflects the use of a deadly weapon. Because the

judgment for Willhite’s prior evading arrest conviction reflects a deadly weapon finding, it was an

aggravated state jail felony under Section 12.35(c) and, therefore, not “punishable under

§ 12.35(a).” 7 See TEX. PENAL CODE ANN. §§ 12.35(a), (c); 12.425(b); Brown, 314 S.W.3d at 490.

Consequently, even though Willhite’s prior evading arrest conviction was actually an aggravated

state jail felony punishable as a second-degree felony—rather than a second-degree felony as it

states—it was still not “punishable under section 12.35(a).” See id. It follows, then, that Willhite’s

prior conviction for evading arrest could be used to enhance her punishment range pursuant to

Section 12.425(b).

         Willhite’s first point of error is overruled.

II.      We Modify the Imposition of Court Costs Against Willhite

         In the judgment for possession of less than one gram, Willhite was assessed $359.00 in

court costs, and in the judgment for possession of between one and four grams, she was assessed



7
 It is axiomatic that if a deadly weapon was either not alleged, or was alleged but not proven at trial, then there would
be no deadly weapon finding in the judgment on which the State may rely for enhancement. See Speering v. State,
797 S.W.2d 36, 37 (Tex. Crim. App. 1990) (for a deadly weapon finding to stand, it must have been alleged and
proven); Scales v. State, 144 S.W. 263, 264 (Tex. Crim. App. 1912) (“It is a familiar rule of the criminal law . . . that
whatever must be proved, or is necessary to be shown, on the trial, must be alleged in the indictment.”). When
considering whether a prior conviction used for enhancement under Section 12.425(b) is “punishable under
§ 12.35(a),” we take the prior judgment as we find it. TEX. PENAL CODE ANN. § 12.425(b).
                                                           6
$369.00 in court costs. In her second point of error, Willhite argues that the trial court’s judgment

of conviction should be modified to delete the court costs assessed against her in this case because

both indictments were tried in a single trial proceeding and she was assessed the same court costs

in each case. Essentially, Willhite contends that she was assessed duplicate court costs.

         A trial court, in a judgment of conviction, must order the criminal defendant to pay court

costs. See TEX. CODE CRIM. PROC. ANN. art. 42.16 (West 2018) (applicable when punishment is

anything “other than a fine”); Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014);

Robinson v. State, 514 S.W.3d 816, 827 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d). And

Article 102.073 of the Texas Code of Criminal Procedure provides:

         (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.

         (c)   This article does not apply to a single criminal action alleging only the
         commission of two or more offenses punishable by fine only.

TEX. CODE CRIM. PROC. ANN. art. 102.073 (West 2018).

         Where a defendant is convicted of two or more offenses in a single criminal action, 8 the

trial court must assess each court cost or fee only once against a defendant. See TEX. CODE CRIM.

PROC. ANN. art. 102.073(a); see Cain v. State, 525 S.W.3d 728, 733–34 (Tex. App.—Houston


8
 “In a single criminal action” has been construed to mean allegations and evidence of two or more offenses that are
presented in a single trial or plea proceeding. See Hurlburt v. State, 506 S.W.3d 199, 201–03 (Tex. App.—Waco
2016, no pet.). Here, there is no dispute that the two separate cases against Willhite were tried in a single criminal
action.
                                                          7
[14th Dist.] 2017, pet. ref’d) (trial court erred in assessing “identical overlapping” or duplicative

costs against defendant); Robinson, 514 S.W.3d at 827–28. When a trial court erroneously

assesses duplicative court costs for multiple convictions tried in a single criminal action, we retain

the court costs for the offense of the highest category. See TEX. CODE CRIM. PROC. ANN. art.

102.073(b).

       The bill of cost in this case lists sixteen different charges, totaling $359.00. The bill of cost

in Willhite’s case for possession of between one and four grams lists the same sixteen charges, but

in that case, they total $369.00. The costs assessed in each case are identical except that, in this

case, Willhite was charged $10.00 for “Taking and Approving Bond (SF-BOND),” and in the other

case, she was charged $20.00.

       Willhite argues that this Court should modify the trial court’s judgment in this case to

delete, in its entirety, the $359.00 in court costs assessed against her because, having been

convicted of two or more offenses in a single criminal action, the trial court could assess court

costs only once and only in connection with the offense of possession of between one and four

grams of methamphetamine. See TEX. CODE CRIM. PROC. ANN. art. 102.073; TEX. HEALTH &

SAFETY CODE ANN. § 481.115(c) (West 2017). The State concedes that we should modify the

judgment to delete the costs assessed in this case to the extent they are duplicative, but the State

correctly points out that Willhite’s two cases involved separate arrests occurring two months apart,

argues that the $10.00 bond fee in this case was not duplicative because it was associated with a

different surety bond, and argues, therefore, that its imposition did not violate Article 102.073.

See TEX. CODE CRIM. PROC. ANN. art. 102.073(a), (b).

                                                  8
       The State is correct. Because the third-degree-felony offense of possession of between one

and four grams of methamphetamine was the “highest category of offense” for which she was

convicted, all court costs assessed in this case, save for the $10.00 bond fee, should have only been

assessed against Willhite in that judgment. See TEX. CODE CRIM. PROC. ANN. art. 102.073(a), (b);

TEX. HEALTH & SAFETY CODE ANN. § 481.115(c); see also Cain, 525 S.W.3d at 733–34; Robinson,

514 S.W.3d at 827–28 (trial court erred in assessing certain “identical costs and fees . . . against

[defendant] for both offenses”). However, the record reflects that the bond fee of $10.00 assessed

in this case is not duplicative, because this case involved a bond separate and distinct from the one

taken and approved in Willhite’s third-degree-felony-possession case. Therefore, we delete

duplicative costs of $349.00 in order that the judgment will accurately reflect the assessment of

non-duplicative costs totaling $10.00. See Guerra v. State, 547 S.W.3d 445, 447 (Tex. App.—

Houston [14th Dist.] 2018, no pet.) (not “all of the fees challenged by [defendant] should be

deleted”); Robinson, 514 S.W.3d at 827–28 (when two offenses tried together, non-duplicative

costs should not be vacated).

III.   We Modify the Degree of Offense and the Statute for Offense

       Under the heading “Degree of Offense,” the judgment incorrectly states that Willhite’s

offense of possession of less than one gram of methamphetamine is a state jail felony enhanced to

a second-degree felony. As stated hereinabove, the offense in this case is a state jail felony. The

prior convictions alleged by the State and found to be true by the trial court only enhance the range

of punishment; they do not change the degree of the offense. See TEX. HEALTH & SAFETY CODE

ANN. § 481.115(b); TEX. PENAL CODE ANN. § 12.425(b); Martin v. State, 405 S.W.3d 944, 949–

                                                 9
50 (Tex. App.—Texarkana 2013, no pet.). Additionally, while under the heading “Statute for

Offense,” the judgment correctly lists Section 481.115(b) of the Texas Health and Safety Code, it

also lists Section 12.42 of the Texas Penal Code. As detailed hereinabove, Section 12.425 rather

than 12.42, is the appropriate enhancement statute for the offense in this case because it is a state

jail felony. See TEX. PENAL CODE ANN. § 12.425(b).

       This Court has the power to correct and modify the judgment of the trial court for accuracy

when the necessary data and information are part of the record. See Bigley v. State, 865 S.W.2d

26, 27 (Tex. Crim. App. 1993); Anthony v. State, 531 S.W.3d 739, 743 (Tex. App.—Texarkana

2016, no pet.). We may sua sponte modify an incorrect judgment whether a party objected on the

issue at trial or not. See Anthony, 531 S.W.2d at 743 (quoting Asberry v. State, 813 S.W.2d 526,

529–30 (Tex. App.—Dallas 1991, pet. ref’d); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—

Texarkana 2009, no pet.)).

       Accordingly, we modify the judgment by (1) changing the “Degree of Offense” to a state

jail felony and by (2) changing the enhancing statute from Section 12.42 to Section 12.425 and (3)

deleting court costs of $349.00 to eliminate duplicative costs.




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      We affirm the judgment, as modified.




                                                  Ralph K. Burgess
                                                  Justice

Date Submitted:     December 20, 2018
Date Decided:       February 22, 2019

Do Not Publish




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