AFFIRMED and Opinion Filed January 17, 2019 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-17-00900-CV No. 05-17-00901-CV No. 05-17-00902-CV No. 05-17-00903-CV TERRY C. SHELTON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause Nos. F09-20518, F09-73040, F10-21198, F10-558 74 

### MEMORANDUM OPINION Before Justices Bridges, Brown, and Whitehill Opinion by Justice Whitehill Appellant was charged with aggravated robbery with a deadly we apon in four separate indictments, judicially confessed and pled guilty to all four c harges and to the two enhancement paragraphs in each indictment. The trial court assessed punish ment at fifty years imprisonment for each offense to run concurrently and a $2,000 fine. The co urt also signed orders to withdraw funds from appellant’s i nmate trust account. Appellant now argues the trial court erred in its assessment of costs and fines because: (i) his indigent status precludes the collection of legislatively-m andated court costs and assessed fines, (ii) legislatively-mandated c ourt costs cannot be collected fro m multiple causes when the causes–2– were combined in a single criminal action, and (iii) because hi s sentences run concurrently, he should only have been charged one fine. As discussed below, we affirm the trial court’s judgments.
I. B ACKGROUND When appellant appeared for s entencing on November 10, 2010, h e affirmed that he wanted to plead true to the enhancement paragraphs in each indictment. After hearing punishment evidence, the court assessed punishment at fifty years imprison ment in each of the four cases (to run concurrently) and a $2,000 fine. $240 court costs were ass essed in each case. Although the court certified appellant’s ri ght to do so, appellant did not a ppeal any of the judgments. The court also signed an order to withdraw funds that was attac hed to and incorporated in each of the four judgments. The order notifies the Texas Depart ment of Criminal Justice to withdraw the $240 court costs and the $2,000 fine from appellan t’s inmate trust account in accordance with T EX
. G OV ’ T C ODE § 501.014. The bill of costs for the four causes show that appellant was charged $240 court costs for each case, but the $ 2,000 fine was only assessed in one

case. 1 Five and a half years after sentencing, appellant filed a “Mot ion to Rescind Withdrawal of Funds from Inmate Trust Account and Restore Funds to Inmate Tru st Account.” The trial court considered and denied the motion on July 13, 2017. Appellant then sought mandamus relief in this court, which we d enied because appellant had an adequate appellate remedy and his request that the trial court be ordered to rule on his motion was moot. See In re Terry C. Shelton , Nos 05-17-00605, 00606-CV, 2017 WL 3275908,

1 The fine was assessed in cause number F09-20518.–3– at *1 (Tex. App.—Dallas Jul. 26, 2017) (orig. proceeding). App ellant now appeals the trial court’s denial of his motion. 2
II A NALYSIS A. First Issue: Does appellant’s indigent status preclude the imposition of costs, fines, and fees? Appellant’s first issue argues that his indigent status absolv es him from the rendering of court costs, fees, and fines. In support of this argument, app ellant relies on code of criminal procedure article 26.04(p) which provides: A defendant who is determined by the court to be indigent is pr esumed to remain indigent for the remainder of the proceedings in the case unles s a material change in the defendant’s financial circumstance occurs . . . . T EX
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. art. 26.04 (p). According to appellant, the court found him in digent and his status did not change, so the court could not properly asse ss costs, fines, and fees against him. We are not persuaded by this argument. The imposition of court costs upon a criminal defendant is a “n onpunitive recoupment of the costs of judicial resources expended in connection with the trial of the case.” Johnson v. State , 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). Court costs are go verned by code of criminal procedure article 42.16, which asse sses costs against a defenda nt where punishment consists of anything other than a fine. See T EX
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. art. 42.16. These costs are legislatively mandated pursuant to the government code, which states “[a] per son convicted of an offense shall pay the following . . .” and then enumerates various fees assoc iated with criminal prosecution. See
T EX
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.

2 The disposition of an inmate’s motion challenging the withdraw al of funds from his inmate account creates an appealable order

. See Ramirez v. State , 318 S.W.3d 906, 908 (Tex. App.—Waco 2010, no pet.). And whil e withdrawal orders are categorized as civil, a criminal distri ct court has jurisdiction to issue such orders and hear inmate challenges to them. Harrell v. State , 286 S.W.3d 315, 321 n. 30 (Tex. 2009).–4– art. 26.05 (g) (allowing court to order reimbursement of court- appointed attorney’s fees). Thus, an indigent defendant’s ability to pay is not relevant with res pect to legislatively mandated costs.
Martin v. State , 405 S.W.3d 944, 947 (Tex. App.—T exarkana 2013, no pet.); Owen v. State , 352 S.W.3d 542, 546 (Tex. App.—A marillo 2011, no pet). Fines, however, are different tha n court costs. Fines are puni tive and are imposed as part of the convicted defe ndant’s sentence. See Armstrong v. State , 340 S.W.3d 759, 767 (Tex. Crim. App. 2011). Appellant did not object to or timely appeal his s entence. See T EX
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. P. 26.2 (a). Therefore, appellant did not preserve for our review his compla int about his sentences. See Wright v. State , 930 S.W.2d 131, 1 33 (Tex. App.—Dallas 1 996, no writ). Moreov er, even had he preserved his complaint, the punishment statute does not exclud e indigent defendants from the optional fine. 3 See T EX
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. § 12.42(c). Accordingly, the trial court did not err by assessing a fine as part of appellant’s sentence or by assessing court costs agains t him. We resolve appellant’ s first issue against him. B. Second Issue: Was it error to assess costs in multiple caus es? The trial court assessed costs against appellant in all four j udgments of conviction. But appellant argues that the court could only assess costs in one judgment because the convictions arise from the same criminal episode and were presented in a si ngle criminal action. Article 102.073 provides: (a) In a single criminal action in which a defendant is convict ed of two or more offenses or of multiple counts of the same offense, the court m ay assess each court cost or fee only once against the defendant. (b) In a criminal action described by Subsection (a), each cour t cost or fee the amount of which is determined according to the category of offe nse must be

3 We recognize that with recent changes to the code of criminal procedure, the trial court is required to consider a convicted defendant’s ability to pay costs and fines at the time of sentencing. See T EX

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. art. 42.15. But these changes were not in effect when appellant was sentenced. Moreover, appella nt’s complaint is not that the trial court did not consider his ability to pay, but that he i s automatically exempt from the assessment o f costs and fines.–5– assessed using the highest catego ry of offense that is possible based on the defendant’s convictions. T EX
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. art. 102.073. 4 This statute, however, was not effective until 2015, and was not made retroactive to costs or fees imposed before the ef fective date. See Acts 2015, 84th Leg., ch. 1160 (S.B. 740), §1, eff. Sept. 1, 2015. 5 The court costs in a ll four judgments were imposed on November 5, 2010. Thus, there is no statutory basis for appellant’s argument, and we have found no other authority pre cluding the assessment of cost s in multiple convictions before the statute was enacted. We t hus resolve appellant’s second is sue against him. C. Third Issue: Is appellant responsible for more than one fin e? The trial court’s sentence of the defendant must be orally pron ounced in the defendant’s presence. T EX
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. art. 42.03, § 1(a); Taylor v. State , 131 S.W.3d 497, 500 (Tex. Crim. App. 2004). A fine is part of a sentence. State v. Crook , 248 S.W.3d 172, 174 (Tex. Crim. App. 2008). A judgment, including the sentence assessed, is “m erely the written declaration and embodiment of that oral pronouncement.” Taylor , 131 S.W.3d at 500. With exceptions not applicable here, the penal code provides th at “sentences shall run concurrently” when “the accuse d is found guilty of more than on e offense arising out of the same criminal episode prosecuted in a single criminal action.” T EX
. P ENAL C ODE § 3.03(a). But the court of criminal appeals and intermediate Texas appellate cour ts have held that the judgment should not reflect a cumulated fine when sentences are ordered to run concurrently. State v. Crook ,

4 The phrase “[i]n a single criminal action” is not defined, but drawing on the court of criminal appeals’ interpretation of the same language used in a different statute, the Waco Court of Appeals construed it to mean allegations and evidence of more than one offense that are presented in a single trial or plea proceeding. Hurlburt v. State , 506 S.W.3d 199, 201–03 (Tex. App.—Waco 2016, no pet.). This court (and others) have adopted the same construction. See Sims v. State , Nos. 05-18-00139-CR, 05-18-00141-CR, 2018 WL 6333250, at *6 ( Tex. App.—Dallas Nov. 29, 2018, no pet. h.) (mem. op., not designated for publication) (relying on prior decision interpreting “single criminal action” under statute relied on in Hurlburt ); see also Santoro v. State, Nos. 02-18-00039-CR, 02-18-00040-CR, 2018 WL 3153564, at *1–2 (Tex. App.—Fort Worth June 28, 2018, no pet. h.) (mem. op., not designated for publication); Derese v. State , Nos. 09-17-00100-CR, 09-17-00101-CR, 2017 WL 5180064, at *2 ( Tex. App.—Beaumont Nov. 8, 2017, pet. ref’d) (mem. op., not designat ed for publication); Valdez v. State , Nos. 03-16-00811-CR, 03-16-00812-CR, 2017 WL 4478233, at *4 (Tex. App.—Austin Oct. 6, 2017, no pet.) (mem. op., not designated for publication).

5 The Legislature did give the statute retroactive effect as to o ffenses committed prior to September 1, 2015 when the fees or c osts were imposed after the statute’s effective date. “The change in law made by this Act applies to a court cost or fee imposed on or after th e effective date of this Act, regardless of whether the offense for which the cost or fe e was imposed was committed before, on, or after that date.” A ct of June 19, 2015, 84th Leg., R.S., ch. 1160, § 2, 2015 Tex. Sess. Law. Serv. Ch. 1160 (S.B. 740) (codified as T EX

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. art. 102.073).–6– 248 S.W.3d 172, 177 (Tex. Crim. App. 2008) (penal code concurre nt sentences provision applies to the entire sentence, including fines); Luera v. State , No.14–10–00576–CR, 22011 WL 1745237, at *2 (Tex. App.—Houston [14th Dist.] May 5, 2011, no pet.) (me m. op., not designated for publication) (where jury assessed $10,000 fine for each count a nd sentences were ordered to run concurrently, judgment should reflect fine of only $10,000). Here, the trial court orally pronounced a $2,000 fine as part o f the punishment in each case and ordered that the sentences run concurrently. But the bill of costs in only one cause number lists a $2,000 fine. Thus, the r ecord reflects that appellant was not charged more than one fine. We resolve appellant’s third issue against him.
III. C ONCLUSION Having resolved all of appellant’s issues against him, we affi rm the trial court’s judgments.

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170900F.U05 /Bill Whitehill/ BILL WHITEHILL JUSTICE–7– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
TERRY C. SHELTON, Appellant
No. 05-17-00900-CV V. THE STATE OF TEXAS, Appellee On Appeal from the 291st Judicial District Court, Dallas County, Texas Trial Court Cause No. F09-20518. Opinion delivered by Justice Whitehill. Justices Bridges and B rown participating. In accordance with this Court’s opinion of this date, the judg ment of the trial court is AFFIRMED

. It is ORDERED that each party bear its ow n costs of this appeal.
Judgment entered January 17, 2019.–8– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
TERRY C. SHELTON, Appellant
No. 05-17-00901-CV V. THE STATE OF TEXAS, Appellee On Appeal from the 291st Judicial District Court, Dallas County, Texas Trial Court Cause No. F09-73040. Opinion delivered by Justice Whitehill. Justices Bridges and B rown participating. In accordance with this Court’s opinion of this date, the judg ment of the trial court is AFFIRMED

. It is ORDERED that each party bear its ow n costs of this appeal.
Judgment entered January 17, 2019.–9– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
TERRY C. SHELTON, Appellant
No. 05-17-00902-CV V. THE STATE OF TEXAS, Appellee On Appeal from the 291st Judicial District Court, Dallas County, Texas Trial Court Cause No. F10-21198. Opinion delivered by Justice Whitehill. Justices Bridges and B rown participating. In accordance with this Court’s opinion of this date, the judg ment of the trial court is AFFIRMED

. It is ORDERED that each party bear its ow n costs of this appeal.
Judgment entered January 17, 2019.–10– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
TERRY C. SHELTON, Appellant
No. 05-17-00903-CV V. THE STATE OF TEXAS, Appellee On Appeal from the 291st Judicial District Court, Dallas County, Texas Trial Court Cause No. F10-55874. Opinion delivered by Justice Whitehill. Justices Bridges and B rown participating. In accordance with this Court’s opinion of this date, the judg ment of the trial court is AFFIRMED

. It is ORDERED that each party bear its ow n costs of this appeal.
Judgment entered January 17, 2019.