Reform, Affirm as Modified; Opinion Filed February 27, 2020




                                             In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-19-00516-CR
                                      No. 05-19-00527-CR
                                      No. 05-19-00537-CR
                       TRESHAWN JAHMAL ROBINSON, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                     On Appeal from the 401st Judicial District Court
                                  Collin County, Texas
         Trial Court Cause Nos. 401-82805-2018, 410-82806-2018, 401-82804-2018

                             MEMORANDUM OPINION
                          Before Justices Molberg, Reichek, and Evans
                                  Opinion by Justice Reichek
       In this appeal, Treshawn Jahmal Robinson brings three issues asserting (1) the statute

authorizing the assessment of summoning witness and mileage fees against him is unconstitutional

on its face, (2) the assessment of duplicate court costs against him in two of the three causes

appealed is improper, and (3) the recitation in the judgments that he waived his right to appeal is

erroneous. Because the Texas Supreme Court recently held the summoning witness and mileage

fees are not unconstitutional on their face, we resolve appellant’s first issue against him. With

respect to the remaining two issues, the record shows, and the State agrees, that appellant was

improperly assessed duplicative court costs and the judgments erroneously state that he waived his

right to appeal. Accordingly, we reform the relevant judgments to delete the duplicative costs and

the recitations regarding waiver of the right to appeal. As modified, we affirm.
       In three separate causes, prosecuted in a single trial, appellant was indicted for two offenses

of sexual assault and one offense of forgery. Appellant pleaded guilty without the benefit of a plea

bargain in all three cases. After hearing the evidence and arguments of counsel, the trial court

accepted appellant’s guilty pleas and denied his request for deferred adjudication community

supervision. Appellant was sentenced to two years in prison in the forgery case and twelve years

in prison in each of the sexual assault cases.

       The judgments show costs and fees were assessed against appellant in all three cases. In

one of the sexual assault cases (trial court cause number 401-82804-2018), the bill of costs shows

two additional fees: a subpoena service fee of $5 and a mileage fee of $2.90. All three judgments

state “APPEAL WAIVED. NO PERMISSION TO APPEAL GRANTED.”

       In his first issue, appellant contends the subpoena service fee and mileage fee assessed in

cause number 401-82804-2018 are facially unconstitutional because the collected funds were not

directed to be used for a legitimate criminal justice purpose. The challenged fees were assessed

pursuant to subsections (a)(3) and (b) of article 102.011 of the Texas Code of Criminal Procedure.

See TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(3),(b). In his brief on appeal, appellant

acknowledged the identical issue was pending before the Texas Court of Criminal Appeals in Allen

v. State at the time his brief was filed and he relied on the arguments presented in that case to

support his position. Since then, the court of criminal appeals issued its opinion in Allen and

concluded the fees were not unconstitutional on their face. No. 1042-18, 2019 WL 6139077, at

*6-7 (Tex. Crim. App. Nov. 20, 2019). The court reasoned that, because the fees were intended

to recoup expenses already incurred in the defendant’s prosecution, the funds collected need not

be allocated for future criminal justice expenses. Id. Appellant asserts no additional grounds to

reverse the challenged fees other than those already addressed in Allen. Accordingly, we resolve

appellant’s first issue against him.

                                                 –2–
       In his second issue, appellant contends the court costs assessed in cause numbers 401-

82805-2018 and 401-82806-2018 are improper because they are duplicative of the costs assessed

in cause number 401-82804-2018. “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. ANN. 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.” Hurlbut v. State, 506 S.W.3d 199, 203 (Tex. App.—

Waco 2016, no pet.). When two or more convictions arise from a single criminal action, “each

court cost or fee the amount of which is determined according to the category of the offense must

be assessed using the highest category of offense that is possible based on the defendant’s

convictions.” TEX. CODE CRIM. PROC. ANN. art. 102.073(b).

       It is undisputed that all three cases at issue in this appeal were prosecuted in the same trial.

The record shows that appellant was assessed court costs of $596.90 in cause number 401-82804-

2018 (sexual assault – second degree felony), $589 in cause number 401-82805-2018 (sexual

assault – second degree felony), and $289 in cause number 401-82806-2018 (forgery – third degree

felony). The record further shows that all costs assessed in cause numbers 401-82805-2018 and

401-82806-2018 were also assessed in cause number 401-82804-2018. Because the costs assessed

in cause numbers 401-82805-2018 and 401-82806-2018 violate the prohibition on duplicative

costs, we may reform the judgments in those cases to delete the improper fees. See Rubio v. State,

No. 05-17-00621-CR, 2018 WL 3424362, at *3 (Tex. App.—Dallas July 6, 2018, pet. ref’d) (mem.

op., not designated for publication). We sustain appellant’s second issue.

       In his final issue, appellant contends the judgments in all three causes improperly state that

he waived his right to appeal. Appellant entered an open plea of guilty in each case. The State

concedes it made no deal with appellant in which he agreed to waive his right to appeal. See

                                                 –3–
Carson v. State, 559 S.W.3d 489, 496 (Tex. Crim. App. 2018). The reporters record in each cause

includes a certification of appellant’s right to appeal signed by the trial court. This Court has the

power to modify an incorrect judgment to make the record speak the truth when we have the

necessary information before us to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d

26, 27–28 (Tex. Crim. App. 1993) (en banc); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—

Dallas 1991, pet. ref’d). Accordingly, we sustain appellant’s third issue and modify the judgments

in all three causes to delete the statement that appellant waived his right to appeal.

       Based on the foregoing, we delete the court costs assessed in the judgments for trial court

cause numbers 401-82805-2018 and 401-82806-2018. We further delete the statement “APPEAL

WAIVED. NO PERMISSION TO APPEAL GRANTED” in the judgments for trial court cause

numbers 401-82804-2018, 401-82805-2018, and 401-82806-2018. As modified, the judgments

are affirmed.




                                                    /Amanda L. Reichek/
                                                    AMANDA L. REICHEK
                                                    JUSTICE



Do Not Publish
TEX. R. APP. P. 47.2(b)
190516F.U05




                                                 –4–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 TRESHAWN JAHMAL ROBINSON,                          On Appeal from the 401st Judicial District
 Appellant                                          Court, Collin County, Texas
                                                    Trial Court Cause No. 401-82805-2018.
 No. 05-19-00516-CR         V.                      Opinion delivered by Justice Reichek.
                                                    Justices Molberg and Evans participating.
 THE STATE OF TEXAS, Appellee

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
        The portion of the judgment assessing court costs of $589 and the portion of the
        judgment stating "APPEAL WAIVED. NO PERMISSION TO APPEAL
        GRANTED" are DELETED.
As REFORMED, the judgment is AFFIRMED.


Judgment entered this 27th day of February, 2020.




                                              –5–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 TRESHAWN JAHMAL ROBINSON,                          On Appeal from the 401st Judicial District
 Appellant                                          Court, Collin County, Texas
                                                    Trial Court Cause No. 401-82806-2018.
 No. 05-19-00527-CR         V.                      Opinion delivered by Justice Reichek.
                                                    Justices Molberg and Evans participating.
 THE STATE OF TEXAS, Appellee

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
        The portion of the judgment assessing court costs of $289 and the portion of the
        judgment stating "APPEAL WAIVED. NO PERMISSION TO APPEAL
        GRANTED" are DELETED.
As REFORMED, the judgment is AFFIRMED.


Judgment entered this 27th day of February, 2020.




                                              –6–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 TRESHAWN JAHMAL ROBINSON,                          On Appeal from the 401st Judicial District
 Appellant                                          Court, Collin County, Texas
                                                    Trial Court Cause No. 401-82804-2018.
 No. 05-19-00537-CR         V.                      Opinion delivered by Justice Reichek.
                                                    Justices Molberg and Evans participating.
 THE STATE OF TEXAS, Appellee

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       The portion of the judgment stating "APPEAL WAIVED. NO PERMISSION TO
       APPEAL GRANTED" is DELETED.

As REFORMED, the judgment is AFFIRMED.


Judgment entered this 27th day of February, 2020.




                                              –7–
