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

___________________________ No. 02

- 18

- 00179

- CR

___________________________

On Appeal from the 432nd District Court Tarrant County, Texas Trial Court No. 1497894D Before Kerr, Bassel, and Womack, JJ. M emorandum Opinion on Remand by Justice Kerr 

### V ICTOR 

### O RTIZ 

### G ONZALEZ 

### , Appellant V 

### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION ON REMAND The Court of Cri minal Appeals has remande d thi s appeal so that we can
re consider

–– in light of A nastassov v. State , No. PD

- 0848

- 20, 2022 WL 5054846, at * 3

– 6 (Te x. Crim. App. Oct. 5, 2022)

–– our p rior disposition modifying the tr ial court ’ s evading

- arrest judgment to delete the $10,000 assessed by t he jury . We agree, along wit h Gonzalez and the State, that Anas tas sov comp els us to affirm the ev a din g - arrest judgment rather than to mo dify it to delete the fine. See id . But

–– a lso with Gonzalez ’ s and the State ’ s agreement
–– we m od ify t he tria l court ’ s fun ds

- with drawal notification 1 directed to the Texas Department of C riminal Justice and incor por ated in to the trial court ’ s evading

- arrest and aggravated

- assault judgment s to authorize withd rawal of a tot al of only $10 , 319 from Gonzal ez ’ s inmate trust account . Background A jury convicted Gon zalez of aggravated assault of a public servant and evading arr est or detention wit h a vehicle . T he State tried the offenses , which arose from a s ingle criminal episode, t ogethe r . Gonzalez v. Stat e (Gonz alez 4) , No. PD

- 0256

- 21, 2022 WL 16954543, at *1 (T ex. Crim. App. Nov. 16, 2022) (not designated for

1 We h ave noted that a lthough the t rial court title s its notice an order, the control ling statute describes it as a notification that a separately entered order has ass essed costs . See Foy v. State , No. 02

- 21

- 00048

- CR, 2022 WL 188378 , at *1 n.2 (Tex. App.

— Fort W orth Jan. 20, 2022, pet. ref’d) ( mem . op., not de signated for publication) ( cit ing Tex. Gov ’ t Code Ann. § 501 . 014 (e); Harrell v. State , 286 S.W.3d 315, 316 n.1 (Tex. 2009); Maldonado v. State , 360 S.W.3d 10, 12 n.3 (Tex. App.

— Amari llo 2010, no pet.) ) .3 publication ) . I n each case, a jury assessed confinement

–– forty

- five years for the aggravated assault and twenty years for the evading off ense –– and a $10,000 fine . The trial court sen tenced Gonzalez accordingly, included the confinement terms and fines in the judgments, a n d o rdered the sentences
–– including the fines

– – to run concurrently. Se e i d. Initiall y , we reversed the aggravat ed

- assau lt conviction , bu t the C ourt of Criminal Appeals reversed our judg ment and remanded the case for us to consider

“ the remaining issues in a manner consistent with [the] Cour t ’ s opinion . ” Gon zalez v. State , 610 S.W.3d 22, 26 , 30 (Tex. Crim. App. 2020 ) . The onl y remaining iss ue was whether a $10,000 fine should be deleted from one of the judgments and from the total amount t he trial court not i fied the Department to withhold fro m Gonzalez ’ s trus t account : $20,319 . T he State con ceded that the with drawal notifi ca tion should be modified . Instead of modifying only the withdrawal notific ation, we also deleted the fine from the evading jud gment, re l ying on several sister

- court cases applying State v. Crook , 248 S. W.3d 172, 177 (Tex. Crim. App . 2 008) . Gonzalez v. State ( Gonzalez 3 ), No. 02

- 18

- 00179

- CR, 2021 WL 924711 , at * 1 (Tex. App.

–– Fort Worth Mar . 11, 2021) ( mem. op. , not designated for publicati o n) , rev ’ d

, 2022 WL 16954543, at *1 . The State P r o s e c u t i n g A t t o r n e y ( S P A ) f i l e d a petition f or disc retionary review , in which s he sought to have the deleted evadi ng - arrest fine reinstated but also ack nowledged that

“ [f] or purposes of an offender’s obligati o n t o pay, concurrent multiple fines are to be4 treate d as a unitary fine so that they equall y disch arge together. ” St ate ’ s Petition for Discretionary Review at 3 , Gonzalez 4 (No. PD

- 0256

- 21) , https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=492a f dc1

- b109

- 4a19

- b0dd

- cf99eba974a8&coa=coscca&DT=PETITI ON&MediaID=7d8 8 5ec4

- 84cb

- 4f53

- a16c

- 2f02 3856e6f c . The SPA did not co mplain about o ur modifying the withdr awal notification in Gonzalez 3 . See i d

. at 3

– 4. In rema nding this case to us , the Cou rt of Crimi n al Appe als noted that in Anastassov it had “ observed that ‘ where m ultiple fines are a ssesse d in a same - criminal

episode prosecution and they are ordered to be discharged concurrently, they discharge in the same manner as concurrent terms of confinement

– t he defendant pays the greatest amount of fine but re ceives credit for satisfying all of the multip le concurrent fines. ’ ” Gonzalez 4 , 2022 WL 16954543, at *1 . For this reason , then, the court held in Anastassov that “ the court of appeals erred by deleting o ne of the lawfully
asses sed fines from the judgment . ” Id. (emphasi s added). Dispos ition Ba sed on Anastassov ’ s hol ding , we hold that the trial court di d not err by including the jury

- assessed $10,000 fine in both judgments. See 2022 WL 5054846, at *6 . But we also hold , based on A nas tassov ’ s underlying reaso ning, that the trial court ’ s withdrawal notifi cation must still be modified to delete $10,000 . A funds

- withdrawal notification under Government Code Section 501.014(e) is a civil

- collection procedure. S ee Harrell , 286 S.W.3d at 3 17

– 21 (describin g procedure as5 a “ civil po s t
- judgm ent collection action that is (1) distinct from the underlying criminal judgments assessing . . . convicti on, sentence, and court costs, and (2) aimed at seizing funds to satisfy the monetar y portion of those judgments ” ) . Because the trial court or d ered th e fines here to be discharged concurrently, they cannot both be collected ; instead, they must be “ discharged jointly in accordance with concurrent

sentencing principles . ” See Ana s tassov , 202 2 WL 5054846 , at * 6 . Noth ing in the withdrawal notificatio n instru cts the Department to discontinue withholding funds after Gonzalez has paid the $319 in costs and the first $10,000 f ine . See Tex. Gov ’ t Code Ann. § 501.014(e) (4)

– (5) ( pr ioritizi n g collection of fe es and cost s before fines ). Ther efore, we conclu de that the withdrawal notificat ion must be modified to comp ort with Anastas sov ’ s principle that Gonz ale z must satisfy only one $10,000 fine. Accordingly, we aff irm the trial court ’ s judgm e nts , but we modify the funds

wit h dr awal notification to del e te $10 ,000 so that the total the Department may withdraw from Gonzalez ’ s inmate account is $ 10,319 . /s/ Elizabeth Kerr Elizabeth Kerr Justice Do Not Publ ish T ex. R. App. P. 47.2(b) Delivered : May 11, 2023