In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-18-00321-CR

No. 02-18-00322-CR

___________________________

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

JASON ARTHUR DUCHESNEAU, Appellant

V.

THE STATE OF TEXAS
2

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.
3

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-ofdiscretion 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 
4

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).
5

“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 
6

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.
7

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!
8

[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.
9

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
10

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.
11

[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.
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[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.
13

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 
14

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 
15

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 
16

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.
17

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
18

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.
19

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.

 6

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

argument.
20

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-anemergency-call judgment, as agreed to by the State, to delete the assessed court costs 
21

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.