MOORE v. STATE (2025)

OPINION

Bryan Emile Moore appeals the trial court's judgments convicting him of aggravated assault with a deadly weapon (appellate court cause no. 05-24-00352-CR and trial court cause no. 199-80336-2024) and unlawful possession of a firearm by a felon (appellate court cause no. 05-24-00351-CR and trial court cause no. 199-81929-2022). The jury found Moore guilty of both offenses. In the aggravated-assault case, the jury found that he used a deadly weapon during the commission of the offense, and the trial judge entered an affirmative finding that his conduct involved family violence. The trial judge assessed his punishment at three years of confinement for the aggravated-assault offense and two years of confinement for the unlawful-possession-of-a-firearm offense.

Moore raises two issues on appeal arguing: (1) the evidence is insufficient to support his conviction for aggravated assault, and (2) the evidence is insufficient to support his conviction for unlawful possession of a firearm. We conclude the evidence is sufficient to support both of Moore's convictions. We also conclude that the trial judge improperly assessed costs in both judgments and signed a judgment with an error in it. The trial court's judgment in the aggravated-assault case is affirmed, and its judgment in the unlawful-possession-of-a-firearm case is affirmed as modified.

We publish this opinion because this case involves an issue of first impression. See Tex. R. App. P. 47.4. Under § 12.44(a) of the Texas Penal Code, a defendant's punishment in a state-jail-felony case may, in the interest of justice, be reduced to the punishment of a Class A misdemeanor. See Tex. Penal Code Ann. § 12.44(a). This case raises the issue of whether a state-jail-felony conviction punished as a Class A misdemeanor may be used as the predicate, prior felony conviction in the prosecution of the offense of unlawful possession of a firearm by a felon. The answer to that issue rests on whether the designation of a state-jail-felony offense as a felony is reduced to a misdemeanor when the punishment assessed is that of a Class A misdemeanor. As discussed below, we conclude it is not.

I. Factual and Procedural Background

Moore and Celeste Burks met in 2018 and were married in February 2021. Before and during their marriage, Burks became more spiritual, calling herself a prophet and posting videos about her dreams on YouTube. Moore saw her behavior as “crazy” and, according to Burks, he called her “crazy” on a daily basis. Also, during their relationship, Burks sent Moore texts accusing him of infidelity, telling him that people loved her but not him, calling him a “coward” and “gay,” and threatening him that no one leaves her, she leaves them.

On December 17, 2021, Moore came home irritated and began arguing with Burks. At some point during their argument, Moore left their apartment, went to his car to get his firearm, and returned to the apartment with a gun in his pocket. As a result, Burks started video recording their argument on her phone while they were sitting on a couch in close proximity to one another. During the video recording, Burks stated that Moore had a gun in his pocket, which he denied. They continued arguing with each accusing the other of having mental-health problems when Moore suddenly pulled out a gun, pointed it directly at Burks, and yelled for Burks to “shut the ‘F’ up.” In response, Burks jumped up from the couch, yelled for the police, and ran to their apartment balcony. At that point, the video recording cut off. Moore did not follow Burks when she ran away or physically touch her.

Burks called 911 and told the dispatcher that Moore had put the gun in a black Mercedes. When the police arrived, Moore answered the apartment door and kept repeating to the police that Burks was “crazy.” After searching Moore with his consent, the police found a Mercedes key set in his pocket. When the police spoke to Burks, she showed them the video that she had made of her argument with Moore, and the officer that spoke with her believed that she seemed rational at the time. During their investigation, the police found a black Mercedes sedan with a license plate number registered to Moore that was parked near the apartment he shared with Burks. And in the driver's-side door pocket of that vehicle, they found a loaded black Taurus PT-111 Millennium G2 9 mm handgun with a TruGlo Laser Sight.

Moore was indicted for the offenses of aggravated assault and unlawful possession of a firearm. The jury found Moore guilty of both offenses. In the aggravated-assault case, the jury found that Moore used a deadly weapon during the commission of the offense, and the trial judge entered an affirmative finding that his conduct involved family violence. The trial judge assessed his punishment at three years of confinement for the aggravated-assault offense and two years of confinement for the unlawful-possession-of-a-firearm offense.

II. Sufficiency of the Evidence

In issues one and two, Moore challenges the sufficiency of the evidence to support his convictions for (1) aggravated assault with a deadly weapon, and (2) unlawful possession of a firearm by a felon.

A. Standard of Review

Under the Due Process Clause, a criminal conviction must be based on legally sufficient evidence. Braughton v. State, 569 S.W.3d 592, 607 (Tex. Crim. App. 2018) (citing Jackson v. Virginia, 443 U.S. 307, 315–16, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). When assessing the sufficiency of the evidence, an appellate court considers all of the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S.Ct. 2781; Witcher v. State, 638 S.W.3d 707, 709–10 (Tex. Crim. App. 2022). Further, an appellate court is required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses’ credibility and the weight assigned to their testimony. See Jackson, 443 U.S. at 319, 326, 99 S.Ct. 2781; Witcher, 638 S.W.3d at 710. An appellate court will consider all evidence when reviewing the sufficiency of the evidence, whether direct or circumstantial, properly or improperly admitted, or submitted by the prosecution or defense. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016).

B. Aggravated Assault with a Deadly Weapon

In issue one, Moore argues the evidence is insufficient to support his conviction for aggravated assault because it does not show that he intentionally or knowingly threatened Burks with imminent bodily injury. He contends that the evidence shows he acted recklessly and should have been convicted of the lesser included offense of deadly conduct because, although he does not dispute that he pointed the gun at Burks, he did not cock the gun or pull any lever to make it ready to fire, he told her to stop talking to him but did not threaten to injure her or cause her pain, he did not touch her and she did not have any physical injuries, he did not follow her, and he did not make any aggressive movements towards her. The State responds that the jury could have inferred his intent to threaten Burks with imminent bodily injury because he pointed the gun directly at her while they were sitting beside one another on the couch.

1. Applicable Law

A person commits aggravated assault if the person commits assault as defined in § 22.01 of the Texas Penal Code and either causes serious bodily injury to another or uses or exhibits a deadly weapon during the commission of the assault. Tex. Penal Code Ann. § 22.02(a).¹ A person commits assault under § 22.01 if the person intentionally or knowingly threatens another, including the person's spouse, with imminent bodily injury. Id. § 22.01(a)(2).

A person acts intentionally, or with intent, when it is his conscious objective or desire to engage in the conduct or cause the result. Id. § 6.03(a). A person acts knowingly, or with knowledge, when he is aware of the nature of his conduct or that the circumstances exist, or that his conduct is reasonably certain to cause the result. Id. § 6.03(b). Direct evidence of the elements of the offense, including the culpable mental state, is not required. See Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007). The jury is permitted to make reasonable inferences from the evidence adduced at trial. See Edwards v. State, 666 S.W.3d 571, 574 (Tex. Crim. App. 2023). Intent may be inferred from circumstantial evidence including acts, words, and conduct. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). And it is well settled that a threat may be communicated by action, conduct, or words. See McGowan v. State, 664 S.W.2d 355, 357 (Tex. Crim. App. 1984). Even when no words accompany the defendant's actions, a threat may be communicated by the defendant's act of pointing a gun at the victim. See Silva v. State, No. 11-23-00122-CR, 2025 WL 51821, at *4 & n.4 (Tex. App.—Eastland Jan. 9, 2025, no pet) (mem. op., not designated for publication) (collecting cases). Additionally, the jury may use common knowledge, personal experience, and observations from life when drawing inferences. See Edwards, 666 S.W.3d at 573. However, juries are not permitted to come to conclusions based on speculation or factually unsupported inferences or presumptions. See id.

A “deadly weapon” is defined to include a firearm. See Tex. Penal Code Ann. § 1.07(a)(17).² “Serious bodily injury” means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Tex. Penal Code Ann. § 1.07(a)(46); Garcia v. State, 667 S.W.3d 756, 762–63 (Tex. Crim. App. 2023). “Bodily injury” means physical pain, illness, or any impairment of physical condition. Tex. Penal Code Ann. § 1.07(a)(8); Garcia, 667 S.W.3d at 762.

2. Evidence Shows Moore Threatened Burks with Imminent Bodily Injury

Moore challenges only the sufficiency of the evidence to establish that he had the requisite culpable mental state. He does not challenge the other elements of the aggravated-assault offense. As a result, we focus our analysis on whether he intentionally or knowingly threatened Burks with imminent bodily injury.

The record shows that during the course of his verbal argument with Burks, Moore left their apartment, went to his car to get his firearm, and returned to the apartment with a gun in his pocket. At that point, Burks testified that she was aware Moore had retrieved a gun, so she started video recording their argument. They continued arguing until Moore pulled out a gun, pointed it directly at Burks, and yelled for Burks to “shut the ‘F’ up.” In response, Burks jumped up from the couch, yelled for the police, and ran to their apartment balcony. Burks testified that she was nervous and scared when Moore pointed the gun at her, and she felt threatened because she was afraid that he would use it. The video recording of their argument and Moore pointing the gun and yelling at Burks was published to the jury. A jury could have inferred that Moore's actions—leaving the apartment during his argument with Burks to get a gun from his vehicle and then, returning and pointing the gun at Burks—demonstrated that he intentionally or knowingly threatened Burks with imminent bodily injury. Moore's act of pointing a gun at Burks was, by itself, threatening conduct that supports Moore's conviction for aggravated assault. See Silva, 2025 WL 51821, at *4 & n.4.

Moore contends that this evidence is insufficient because he did not cock the gun or pull any lever to make it ready to fire, he told her to stop talking to him but did not threaten to injure her or cause her pain, he did not touch her and she did not have any physical injuries, he did not follow her, and he did not make any aggressive movements towards her. To the extent that Moore contends his actions conflict with the jury's inference, the jury saw the video of the offense and was able to determine Moore's mental state based on his actions, conduct, or words. Moreover, having reviewed the video, a rational juror could have concluded that when Moore pointed the gun at Burks, he intentionally or knowingly threatened her with imminent bodily injury.

We conclude that the evidence is sufficient to support Moore's conviction for aggravated assault with a deadly weapon.

Issue one is decided against Moore.

C. Unlawful Possession of a Firearm by a Felon

In issue two, Moore argues the evidence is insufficient to support his conviction for unlawful possession of a firearm. He contends that the predicate conviction relied on by the State does not qualify as a prior felony conviction because his prior state-jail-felony conviction for theft was punished as a Class A misdemeanor under § 12.44(a) of the Texas Penal Code. We construe Moore's argument to be that there was insufficient evidence to support his conviction because the evidence admitted to prove his prior felony conviction constitutes no evidence of the required predicate felony as a matter of law. The State responds that the designation of a state-jail-felony conviction as a felony is not altered by the punishment assessed.

1. Applicable Law

To establish the offense of unlawful possession of a firearm, the State must show the defendant (1) was previously convicted of a felony offense and (2) possessed a firearm after the conviction and before the fifth anniversary of his release from confinement or from community supervision, parole, or mandatory supervision, whichever date is later. See Tex. Penal Code Ann. § 46.04(a)(1).

Offenses are designated as felonies or misdemeanors, with each designation then classified according to the relative seriousness of the offense. Id. §§ 12.02, .03(a), .04(a). Under Texas law, the designation of those offenses is based on the applicable punishment—the length and location of confinement, also taking into account the amount of any fines imposed. See Jordan v. State, No. 01-14-00721-CR, 2015 WL 6768497, at *7 (Tex. App.—Houston [1st Dist.] Nov. 5, 2015, no pet.) (mem. op., not designated for publication); Tex. Penal Code Ann. §§ 12.01–.35. An offense is designated as a felony or misdemeanor based on the possible punishments that may be imposed for that crime, not the actual punishment imposed. See Tapps v. State, 294 S.W.3d 175, 180 (Tex. Crim. App. 2009); see also Ragon v. State, 506 S.W.2d 214, 216–17 (Tex. Crim. App. 1974) (“[A]n offense which may be punished by confinement in the penitentiary is a felony even though an offender is actually punished by fine or confinement in the county jail.”). The fact that a defendant is actually sentenced to a lesser punishment does not affect how his offense is designated. See Tapps, 294 S.W.3d at 180.

A “felony” is defined as “an offense so designated by law or punishable by death or confinement in a penitentiary.” Tex. Penal Code Ann. § 1.07(a)(23). Felonies are classified into the following five categories according to the seriousness of the offense: (1) capital felonies; (2) first-degree felonies; (3) second-degree felonies; (4) third-degree felonies; and (5) state-jail felonies. See id. § 12.04(a). A state-jail felony can be a “felony” conviction under § 46.04(a)(1). See Tapps, 294 S.W.3d at 182. In other words, a conviction for unlawful possession of a firearm by a felon can be obtained with proof of a prior conviction for a state-jail-felony offense. Id. at 178. In addition, any offense designated as a felony without specification as to the degree of classification is designated as a state-jail felony. See Tex. Penal Code Ann. § 12.04(b); Tapps, 294 S.W.3d at 178. The default degree of classification for all undesignated felonies as state-jail felonies underscores the conclusion that state-jail felonies are designated as felonies unless the language of the particular statute in question indicates otherwise. See Tapps, 294 S.W.3d at 178.

Section 12.35(a) of the Texas Penal Code provides that, except under circumstances not applicable here, an individual adjudged guilty of a state-jail felony shall be punished by a term of confinement of not more than two years or less than 180 days. Tex. Penal Code Ann. § 12.35(a).³ State jail facilities confine convicted felons serving shorter sentences than felons incarcerated in conventional prison units. See Patrick Graves, Texas State Jails, Time for a Reboot?, Texas Comptroller of Public Accounts, https://comptroller.texas.gov/economy/fiscal-notes/archive/2019/aug/jails.php (Aug. 2019).

However, § 12.44(a) is titled “Reduction of State Jail Felony Punishment to Misdemeanor Punishment” and provides that a trial court may punish a defendant convicted of a state-jail felony by reducing the confinement to that permissible as punishment for a Class A misdemeanor in the interests of justice. See Tex. Penal Code Ann. § 12.44(a). A Class A misdemeanor is punishable by confinement in jail for a term not to exceed one year or a fine not to exceed $4,000, or both. See id. § 12.21. County and municipal jails are intended to confine those awaiting trial or serving brief sentences for misdemeanor offenses. See Graves, Texas State Jails, Time for a Reboot?.

2. State-Jail Felonies Punished as Misdemeanors Are Felonies

Moore's argument requires us to determine whether the existence of a separate statutory provision permitting a state-jail felony to be punished as a Class A misdemeanor reduced the designation of his prior theft offense from a felony to a misdemeanor or simply reduced the punishment imposed. In support of his argument, Moore directs us only to § 12.44(a) of the Texas Penal Code, which allows a trial court to reduce the punishment of a state-jail felony to that of a misdemeanor in the interests of justice. Similarly, the State directs us only to case law in habeas corpus proceedings as analogous authority supporting its use of a state-jail-felony conviction punished as Class A misdemeanor as a predicate offense.

Based on the parties’ arguments and our research, this appears to be an issue of first impression requiring a statutory-construction analysis. We also note that the parties do not contend that the relevant statutes are ambiguous. Statutory construction is a question of law; therefore, we conduct a de novo review. Tapps, 294 S.W.3d at 177.

In construing the meaning and interplay between statutes, an appellate court gives effect to the plain meaning, unless the text is ambiguous or the plain meaning leads to absurd results that the legislature could not have possibly intended. Oliva v. State, 548 S.W.3d 518, 521 (Tex. Crim. App. 2018). An appellate court focuses on the literal text of the statutory language in question, reading it in context and construing it according to the rules of grammar and common usage. Tapps, 294 S.W.3d at 177. When a statute is clear and unambiguous, the legislature must be understood to have meant what it expressed in the statute, and it is not for the courts to add to or subtract from that statutory language. Id. Statutory language is ambiguous if it may be understood by reasonably well-informed persons in two or more different senses. Oliva, 548 S.W.3d at 521.

The parties do not dispute that the predicate felony offense was for state-jail-felony theft. See Tex. Penal Code Ann. § 31.03(a), (e)(4)(D). Rather, their arguments focus on the meaning of the statutes relating to the punishment of this offense as a misdemeanor and whether that lower punishment level affects the designation of the offense. As a result, the statutes relevant to our analysis are §§ 12.35(a) and 12.44(a) of the Texas Penal Code.

Section 12.35 states in part:

(a) Except as provided by Subsection (c), an individual adjudged guilty of a state jail felony shall be punished by confinement in state jail for any term of not more than two years or less than 180 days.

Id. § 12.35(a) (emphasis added).

Section 12.44 states in part:

(a) A court may punish a defendant who is convicted of a state jail felony by imposing the confinement permissible as punishment for a Class A misdemeanor if, after considering the gravity and circumstances of the felony committed and the history, character, and rehabilitative needs of the defendant, the court finds that such punishment would best serve the ends of justice.

Id. § 12.44(a) (emphasis added).

A literal reading of the text of §§ 12.35(a) and 12.44(a) makes clear that these statutes relate to the punishment of a state-jail-felony offense through the use of phrases like “shall be punished,” “may punish,” and “as punishment.” Id. §§ 12.35(a), 12.44(a). Further, the section allowing a trial court to reduce the defendant's punishment for a state-jail felony to that of a misdemeanor makes clear that the offense remains a felony when it refers to the offense as “the felony committed.” Id. § 12.44(a). In addition, the plain-language definition of “felony” provides that it includes any offense “so designated by law.” Id. § 1.07(23). Accordingly, after a defendant is convicted of a state-jail felony in the guilt–innocence phase of a trial, a trial court's subsequent exercise of its statutory authority to punish the state-jail felony as a misdemeanor does not change the designation of the offense as a state-jail felony by law or change the fact that the trial court could have imposed punishment by confinement in a state jail instead of a county jail—in other words, that the offense was “punishable” by such confinement. See also Tapps, 294 S.W.3d at 181 (stating that the plain language of the definition of “felony” allows an offense to be classified as a felony, regardless of its punishment range, if it is expressly so designated).

Having reviewed the statutes, we conclude that they are not ambiguous because they are clear and not subject to more than one interpretation. And the plain meaning does not lead to an absurd result that the legislature could not have possibly intended. As a result, the fact that Moore's state-jail felony was punishable as a misdemeanor does not change the designation of his offense as a felony. See also id. at 180.

Although not dispositive of our analysis, we note that extratextual factors support our understanding of the plain text of §§ 12.35 and 12.44. See Oliva, 548 S.W.3d at 522 (although relevant as extratextual factors, heading, title, subtitle, chapter, or section does not limit or expand meaning of statute). Both sections appear under Title 3, Chapter 12 of the Texas Penal Code, which are both titled “Punishments.” Section 12.35 is titled “State Jail Felony Punishment” and appears in Subchapter C, which is titled “Ordinary Felony Punishments.” Section 12.44 is titled “Reduction of State Jail Felony Punishment to Misdemeanor Punishment” and appears in Subchapter D, which is titled “Exceptional Sentences.”

In addition, we find additional support for our reading of the statutes in analogous case law relating (1) to elevations and reductions in offense classification or degree and punishment enhancements, and (2) to habeas corpus proceedings. The Texas Court of Criminal Appeals has noted that there is a practical difference between an enhancing provision saying that an offense is a certain class or degree—creating an offense level that can serve as the base offense level for further enhancement—and an offense punished as a certain class or degree. See Oliva, 548 S.W.3d at 526. In other words, there are statutory provisions that clearly elevate or reduce the class or degree of an offense and statutory provisions that enhance only the punishment assessed for an offense. For example:

• The legislature has expressly created statutory provisions that elevate the class or degree of an offense (e.g., aggravated assault is a second-degree felony but the degree of the offense is elevated if the actor uses a deadly weapon during the commission of the offense and causes serious bodily injury to a person with whom he has a dating, family, or household relationship). See Tex. Penal Code Ann. § 22.02(b).

• The legislature has explicitly created punishment issues that reduce the degree of an offense rather than merely reducing the punishment assessed (e.g., sudden passion for murder, release in a safe place for aggravated kidnapping, imperfect renunciation of the crime in prosecutions for organized criminal activity and organized election fraud activity). See Oliva, 548 S.W.3d at 526–27.

• The legislature has expressly created a statutory scheme for enhancing the punishment assessed for a repeat and habitual offender on trial for a first-, second-, or third-degree felony. See Tex. Penal Code Ann. § 12.42.

Language like “punished for,” “punishable by,” and “if it is shown on the trial of”⁴ suggests that a statute enhances the punishment assessed for an offense. See Oliva, 548 S.W.3d at 532.

Relevant to our analysis, § 31.03(e)(4) of the Texas Penal Code provides that the offense of theft, except under circumstances that do not apply here, “is” classified as a state-jail felony if the value of the stolen property is less than $2,500 and the defendant has been previously convicted two or more times of theft. See Tex. Penal Code Ann. § 31.03(e)(4)(D). Section 12.35(c) provides that, except under circumstances not applicable here, an individual adjudged guilty of a state-jail felony “shall be punished by” a term of confinement in state jail of not more than two years or less than 180 days. Id. § 12.35(c). However, § 12.44(a) is titled “Reduction of State Jail Felony Punishment to Misdemeanor Punishment” and provides that a trial court “may punish” a defendant convicted of a state-jail felony by reducing the confinement to that permissible “as punishment” for a Class A misdemeanor in the interests of justice. See id. § 12.44(a).

We find further analogous support for our conclusion in Ex parte Palmberg, where the Texas Court of Criminal Appeals addressed whether a state-jail-felony conviction that is punished as a Class A misdemeanor remains a felony conviction for purposes of an article 11.07 post-conviction application for habeas corpus. See Ex parte Palmberg, 491 S.W.3d 804, 805 (Tex. Crim. App. 2016). Article 11.07 of the Texas Code of Criminal Procedure sets out the procedure in a habeas corpus proceeding after a defendant has been convicted without the death penalty assessed as punishment. See Tex. Code Crim. Proc. Ann. art. 11.07. It applies to applications for a writ of habeas corpus in which the applicant seeks relief from a felony judgment. See id. art. 11.07, §§ 1, 3(a)–(b) (emphasis added). The Texas Court of Criminal Appeals concluded that a state-jail-felony conviction punished as a Class A misdemeanor is a felony conviction cognizable for collateral attack under an article 11.07 post-conviction application for habeas corpus. Ex parte Palmberg, 491 S.W.3d at 805 n.1.

We acknowledge that the length of punishment for a state-jail felony—confinement of not more than two years or less than 180 days—and the length of confinement for a Class A misdemeanor—confinement in jail for a term not to exceed one year—have some overlap. But the punishment location of a state-jail felony—state jail—and the location of confinement for a Class A misdemeanor—county or municipal jail—are different. Although this provides some support that the legislature intended something more than just a reduced punishment under § 12.44(a), based on the plain language of the statute and analogous laws, we are not persuaded that it reduces the designation of a state-jail felony to a misdemeanor for purposes of § 46.04. See Tapps, 294 S.W.3d at 180 (rejecting similar argument based on § 12.41 of penal code that sentence to “confinement” in state-jail facility rather than “imprisonment” in penitentiary implies offense something less than felony).

We conclude that the statutory provision in § 12.44(a), permitting a trial court to punish a state-jail felony as a Class A misdemeanor, reduces the punishment assessed; it does not reduce the designation of the offense for purposes of § 46.04.⁵ See Oliva, 548 S.W.3d at 524 (noting that punishment enhancement does not change degree of conviction offense).

3. Evidence Is Sufficient to Support Moore's Unlawful-Possession-of-a-Firearm Conviction

Having concluded that Moore's state-jail-felony conviction for theft that was punished as a Class A misdemeanor is a felony conviction sufficient to meet the requisite felony under § 46.04(a)(1), we consider whether there was sufficient evidence to prove the required predicate felony to support Moore's conviction for unlawful possession of a firearm. Moore challenges only the sufficiency of the evidence to establish that he was previously convicted of a felony offense; he does not challenge whether the evidence shows he possessed a firearm after his previous conviction and before the fifth anniversary of his release from confinement.

As evidence of Moore's prior felony conviction, the State offered and the trial court admitted a January 7, 2020 judgment convicting Moore of theft.⁶ The following is a summary of the relevant portions of that theft judgment:

• Offense: Theft of property valued at less than $2,500 with two or more previous theft convictions. See Tex. Penal Code Ann. § 31.03(a), (e)(4)(D).

• Plea to the Offense: Guilty pursuant to a plea bargain.

• Degree of Offense: State-jail felony, § 12.44(a) of the Texas Penal Code.

• Punishment and Place of Confinement: Five days in the county jail.

• Punishment Options:

☒ County Jail State Jail Felony Conviction. Pursuant to § 12.44(a), Tex. Penal Code, the Court FINDS that the ends of justice are best served by imposing confinement permissible as punishment for a Class A misdemeanor instead of a state jail felony. Accordingly, [Moore] will serve punishment in the county jail as indicated above․

We note that the theft judgment lists § 12.44(a) of the Texas Penal Code as part of the degree of the offense. As we have already concluded, that section relates to the punishment assessed for the offense, specifically the ability of the trial court to reduce the punishment assessed for a state-jail felony to a misdemeanor punishment in the interests of justice. See Tex. Penal Code Ann. § 12.44(a). It does not directly relate to the degree of the offense, which is contained in § 31.03 of the Texas Penal Code and which lists the elements of the offense of theft. The theft judgment indicates that the degree of the offense is a state-jail felony and the punishment option selected is county jail for a state-jail-felony conviction. After reviewing the evidence in the light most favorable to the verdict, we conclude that a rational jury could find that Moore was previously convicted of a felony offense.

We conclude that there was sufficient evidence to support Moore's conviction for unlawful possession of a firearm by a felon.

Issue two is decided against Moore.

III. Modification of the Judgment

Although neither party raises the issue, we observe that the trial judge assessed costs in both judgments and Moore was convicted of two offenses in a single criminal trial. An appellate court has the authority to modify an incorrect judgment when it has the necessary information to do so. See Tex. R. App. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (adopting the reasoning in Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref'd) (en banc)).

1. Applicable Law

When a defendant is convicted of two or more offenses in a single criminal trial, the trial court may assess each court cost or fee only once against the defendant. Tex. Code Crim. Proc. Ann. art. 102.073(a); Leakey v. State, No. 05-23-00239-CR, 2024 WL 3158159, at *4 (Tex. App.—Dallas June 25, 2024, pet. ref'd) (mem. op., not designated for publication). The amount of each fee or cost assessed is determined by using the highest category of offense that is possible based on the defendant's convictions. Tex. Code Crim. Proc. Ann. art. 102.073(b); Leakey, 2024 WL 3158159, at *4. As a result, where a trial court hears all cases against a defendant together in a single criminal action, the trial court must assess each court cost or fee only once, in the judgment of the highest category offense for which the defendant is convicted. Leakey, 2024 WL 3158159, at *4. Where a trial court has imposed duplicative court costs and fees in two or more cases in a single criminal action, the proper remedy is for the appellate court to delete the court costs and fees assessed in the judgments for the lower degree offenses. See Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013) (concluding where trial court erroneously includes certain amounts as court costs in judgment, appeals court should modify judgment to delete erroneous amount); see also Leakey, 2024 WL 3158159, at *4.

2. Trial Court Imposed Duplicative Costs

The records in these cases show that Moore was convicted of two offenses in a single criminal action. In the judgments, the trial court assessed court costs in the amounts of $355.00 in the unlawful-possession-of-a-firearm case and $380.00 in the aggravated-assault case. The judgments state that Moore's conviction for aggravated assault was a second-degree felony and his conviction for unlawful possession of a firearm was a third-degree felony.

We conclude the trial judge improperly assessed costs in both judgments and signed a judgment with an error in it because both cases were tried together and both judgments assess costs. We conclude the costs should be assessed in the judgment for the aggravated-assault-with-a-deadly-weapon case because that is the judgment of the highest category offense for which Moore was convicted. See Leakey, 2024 WL 3158159, at *4. Accordingly, we conclude the trial court's judgment in the unlawful-possession-of-a-firearm case should be modified to state that the court costs are $0.

IV. Conclusion

The evidence is sufficient to support Moore's convictions for aggravated assault with a deadly weapon and unlawful possession of a firearm by a felon. Also, the trial judge improperly assessed costs in both judgments and, as a result, signed a judgment with an error in it.

The trial court's judgment in the aggravated-assault-with-a-deadly-weapon case (appellate court cause no. 05-24-00352-CR and trial court cause no. 199-80336-2024) is affirmed.

The trial court's judgment in the unlawful-possession-of-a-firearm case (appellate court cause no. 05-24-00351-CR and trial court cause no. 199-81929-2022) is modified as follows:

“Court Costs: $355” is modified to read “Court Costs: $0.”

The trial court's judgment in the unlawful-possession-of-a-firearm case is affirmed as modified.

The trial judge is directed to prepare a corrected judgment in the unlawful-possession-of-a-firearm case that reflects the modifications made in this Court's opinion and judgment in that case. See Shumate v. State, 649 S.W.3d 240, 244–45 (Tex. App.—Dallas 2021, no pet.).

The trial judge is also directed: (1) to order the district clerk to prepare and file a supplemental clerk's record containing the corrected judgment in the unlawful-possession-of-a-firearm case with this Court; (2) to provide the corrected judgment to the parties; and (3) to send the corrected judgment to the Texas Department of Criminal Justice.

FOOTNOTES

1.   After the date of the offense, the legislature amended § 22.02 of the Texas Penal Code. We cite the current version of the statute because the subsequent amendments do not affect the outcome of this appeal.

2.   After the date of the offense, the legislature amended § 1.07 of the Texas Penal Code. We cite the current version of the statute because the subsequent amendments do not affect the outcome of this appeal.

3.   After the date of the offense, the legislature amended § 12.35 of the Texas Penal Code. We cite the current version of the statute because the subsequent amendments do not affect the outcome of this appeal.

4.   We note that the phrase “if it is shown on the trial of an offense” is “strongly associated” with punishment issues, but it is not conclusive evidence that something should be treated as a punishment issue. State v. Green, 682 S.W.3d 253, 272 (Tex. Crim. App. 2024).

5.   The parties present argument only as to the effect of § 12.44(a) of the Texas Penal Code and Moore's prior theft conviction expressly states that his punishment was reduced pursuant to § 12.44(a). We note that § 12.44(b) states, “At the request of the prosecuting attorney, the [trial] court may authorize the prosecuting attorney to prosecute a state jail felony as a Class A misdemeanor.” Tex. Penal Code Ann. § 12.44(b) (emphasis added). However, we express no opinion as to the effect of that subsection.

6.   We note that, in the indictments in these cases, Moore's middle name is spelled “Emile.” However, in the theft judgment admitted as evidence of a prior felony, his middle name is spelled “Emil”; it is spelled without an “e” at the end or, in other words, with only one “e.”

Opinion by Chief Justice Koch