ADAJI v. STATE (2025)

OPINION

In these two appeals, appellant argues that the evidence is insufficient to support his convictions, or alternatively, if the evidence is sufficient, that the judgments should be modified to correct certain clerical errors and other improper assessments in the bills of costs. We overrule the sufficiency challenges, but we largely sustain the other issues.

BACKGROUND

This case arises out of an attempt by appellant, a Nigerian national, to obtain permanent legal status through his marriage to a United States citizen.

The prosecution charged appellant with a total of three offenses. The first was fraudulent securing of document execution, based on an allegation that, with an intent to defraud his wife, appellant caused either his wife or an immigration attorney to sign a document affecting his wife's property, namely, a marriage license. See Tex. Penal Code § 32.46. The second was fraudulent use of identifying information, based on an allegation that appellant fraudulently used the banking information of the immigration attorney. See Tex. Penal Code § 32.51. And the third was theft, based on an allegation that appellant misappropriated money from the immigration attorney. See Tex. Penal Code § 31.03.

Appellant pleaded not guilty to all three charges, and his case proceeded to a consolidated jury trial.

Shareka Wallace, the one-time wife in this case, testified that she matched with appellant on a Christian dating app. At the beginning of their courtship, they chatted exclusively over the phone because they did not live in the same state. She was based here in Houston, and he attended graduate school in Illinois, where he was lawfully residing under a student visa. When their schedules aligned, they both agreed to meet in Dallas, where appellant proposed on their first date. She accepted, and they married less than a week later.

Shareka testified that she was quickly filled with regret. She explained that appellant's religious beliefs seemed to change as soon as the wedding was over, as he no longer wanted to pray or worship together. She also questioned his finances, as he did not want to buy her a ring. He even asked her for money after he flew back to Illinois to continue his schooling.

Despite her misgivings, Shareka believed that she could make the marriage survive. She took a second job, and at appellant's urging, she sought out an immigration attorney.

Shareka retained Esther Noh to assist her in applying for appellant's green card, which would allow him to stay in the United States after his student visa expired. Esther charged a flat fee for this service, and in her attorney-client contract, she instructed that payment should be completed by making an electronic transfer to her law firm's bank account. The instructions identified that account by its specific routing number and account number.

As the application process was underway, appellant told Shareka that he needed to return to Africa to attend his grandmother's funeral. He also indicated that he would return to Houston for a few days on the way back, and that he might be chaperoning a small boy, whom he claimed to be his nephew.

Shareka reunited with appellant at the airport, and she was surprised by his resemblance to the small boy in his company. Later, when she found the boy's birth certificate, which was needed to secure his visa, she discovered that appellant was listed as the boy's father. She also discovered messages on appellant's laptop from another woman referring to appellant as her “husband.”

Shareka testified that when she confronted appellant about the boy, appellant pretended to not understand English. And when she separately confronted him about having a wife in Africa, he claimed to actually have six wives. Shareka construed that last remark as sarcasm, but after appellant left for Illinois with the boy, she came to accept that she had been used. She eventually contacted Esther and instructed her to withdraw the green card application.

Esther informed her then that the application had recently been rejected. Appellant flipped out when he heard the news. He demanded a divorce. Months later, he reached out to Shareka, requesting more money. She filed a petition for divorce, which was granted in a default judgment.

Esther testified that, after the green card application was rejected, she noticed two unauthorized withdrawals from her law firm's bank account. The first withdrawal was for more than $3,900, and the second withdrawal, which occurred less than a week later, was for more than $7,200. The bank statement identifying these transactions named Discover as the originating company for the withdrawals, and appellant as the individual recipient.

Esther filed a police report, and her case was assigned to a detective in the financial crimes unit. The detective testified that he subpoenaed records from both Esther's bank and Discover, where appellant had a credit card. The detective determined that the unauthorized withdrawals were initiated from an IP address in Illinois, where appellant had been living. The detective also determined that, after each transaction was completed, appellant used his Discover card to make disbursements on Cash App, a digital application for making person-to-person payments.

Following this testimony, the prosecution rested its case. The defense then moved for a directed verdict on the first charge of fraudulently securing the execution of a document, arguing that there was no evidence to support that charge because neither Shareka nor Esther actually signed the marriage license. The trial court granted that motion. The trial court also asked the defense if it had any other motions regarding the remaining two charges. The defense responded in the negative, stating instead that it was ready to present its own evidence.

The defense called appellant as its only witness, and he mostly focused on controverting Shareka's testimony. For example, he testified that Shareka proposed to him, not the other way around. He testified that she had the idea of hiring an immigration attorney, not him. He also testified that he had been forthright with Shareka about his son before he ever left for Africa. And he testified that Shareka was demanding and insisted on having all of his login passwords.

As for the financial crimes involving Esther, appellant testified that he did not know how the money ended up in his account, and he denied having any part in the transfers.

In closing statements, the defense argued that there was reasonable doubt because the detective did not research all of the IP addresses that were returned in his subpoena. The defense also encouraged the jury to find reasonable doubt because some of the IP addresses corresponded with regions in Texas.

The jury rejected those defensive arguments and convicted appellant of the two submitted charges.

FRAUDULENT USE OF IDENTIFYING INFORMATION

Appellant's first issue focuses on a variance between what was charged in the indictment and what was proven at trial.

The indictment alleged that he fraudulently used “less than five items of identifying information, namely, financial institution account number of Esther Noh.” But the evidence at trial established that title to the account was not held by Esther Noh in her individual capacity. Rather, the evidence showed that title was held by The Law Firm of Esther S. Noh, PLLC, a business entity.

Appellant contends that this variance is material and renders the evidence legally insufficient to support the conviction. We disagree for the following reasons.

In a sufficiency review, we look at all of the evidence in the light most favorable to the verdict and consider whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Ramjattansingh v. State, 548 S.W.3d 540 (Tex. Crim. App. 2018). The essential elements of the offense are defined, not by the charge that was actually given, but by the “hypothetically correct jury charge,” which is the charge that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id.

The hypothetically correct jury charge “is authorized by the indictment” if the charge tracks the statutory elements of the offense as modified by the indictment. Id. However, the hypothetically correct jury charge need not track all of the allegations in the indictment, unless a variance between an allegation and proof would be “material.” Id. at 546–47.

A variance is material only if it prejudices a defendant's substantial rights. Id. at 547. Prejudice occurs when the indictment, as written, fails to adequately inform the defendant of the charge against him, or when it subjects the defendant to the risk of being prosecuted later for the same crime. Id. at 547.

There are three categories of variances, each with a different implication regarding materiality.

The first category concerns a statutory allegation that defines the offense. Take, for example, the statutory definition of retaliation, which a person commits by harming or threatening to harm another in retaliation for or on account of the service or status of the other as a public servant, witness, prospective witness, or informant. See Tex. Penal Code § 36.06(a)(1)(A). If an indictment alleges that the complainant served as a witness, but the proof establishes that the complainant was merely an informant—a different statutory element—then the prosecution has not proven the same offense that was charged. See Cada v. State, 334 S.W.3d 766, 774–76 (Tex. Crim. App. 2011). This category of variance is always material. See Ramjattansingh, 548 S.W.3d at 547. And in a sufficiency analysis under the hypothetically correct jury charge, a reviewing court must determine that the evidence is insufficient because the proven offense was not authorized by the indictment. Id.

The second category concerns a non-statutory allegation that is descriptive of an element of the offense that defines or helps to define the allowable unit of prosecution. Id. Variances of this sort are sometimes material. Id.

Consider the offense of murder, where the allowable unit of prosecution is each victim killed. See Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (“Murder may be murder, but killing one person is not the same offense as killing an entirely different person.”). If an indictment alleges that the defendant killed Dangerous Dan McGrew, but the evidence at trial establishes that the defendant killed Little Nell, rather than Dangerous Dan, then the variance is material because the proof established a different offense. Id. (“That is a big mistake.”).

Now suppose instead that the evidence at trial established that the defendant killed Dan McGrew, though Dan never went by the moniker of “Dangerous.” Or suppose that his actual name was Daniel Macgrew, but he answered to Dan McGrew. Or suppose even that his real name was Don McGrew or Dan Magoo, which sounds similar to Dan McGrew. These are all variances, but in a murder prosecution, the name of the person killed is not a substantive element of the offense. Id. at 253 (“In sum, it is the identity of the person, not his formal name, that controls and guides the sufficiency of the evidence review.”). If the evidence at trial were to establish that the person killed was the very same person alleged to have been killed in the indictment, though perhaps known by a different name, then these would just amount to “little mistakes.” Id. at 247.

The law tolerates little mistakes as immaterial variances if such variances did not actually prejudice the defendant's substantial rights. Id. at 247–48. And if a variance is immaterial, then a reviewing court cannot conclude that the evidence is insufficient under the hypothetically correct jury charge. See, e.g., Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002) (in a prosecution for injury to an elderly individual, where the complainant was alleged to have been named “Olen M. Fuller,” the evidence was not insufficient where the proof referred to the complainant merely as “Mr. Fuller” or “Buddy,” because there was no indication that the defendant did not know whom he was accused of injuring, considering that the complainant was the defendant's own father).

The third category concerns a non-statutory allegation that has nothing to do with the allowable unit of prosecution. Consider again the murder of Dangerous Dan. If an indictment alleges that the defendant killed Dangerous Dan by stabbing Dan with a knife, but the evidence at trial establishes that the defendant bludgeoned Dan with a baseball bat, this variance would not change the offense, because the allowable unit of prosecution is still the death of Dan. Variances of this sort are never material, and they will never render the evidence legally insufficient to support the conviction. See, e.g., Johnson v. State, 364 S.W.3d 292, 299 (Tex. Crim. App. 2012) (in a prosecution for aggravated assault, where the defendant was alleged to have injured the complainant by hitting her with his hand or by twisting her arm, the evidence was not insufficient where the proof merely showed that the defendant threw the complainant against the wall, causing her to fall to the floor and break her arm).

In this case, appellant was charged with the fraudulent use of identifying information. See Tex. Penal Code § 32.51(b)(1). The allowable unit of prosecution for that offense is each “item of identifying information.” See Cortez v. State, 469 S.W.3d 593, 602 (Tex. Crim. App. 2015). The charging statute contains a non-exclusive list of identifying information, which includes a person's “financial institution account number.” See Tex. Penal Code § 32.51(a)(1)(C). The indictment narrowed the allowable unit of prosecution to one such number. And the indictment further described that number as having belonged to Esther Noh.

But the evidence at trial established that this number actually belonged to The Law Firm of Esther S. Noh, LLC—a business entity, not an individual. This discrepancy implicates the second category of variances. Although the name of the account holder is not a substantive element of the offense, the name is a non-statutory allegation that helps to define an essential element and the allowable unit of prosecution.

As indicated above, variances in the second category are only sometimes material. Appellant believes that the variance here presents one of those instances of materiality. Likening the facts to the example discussed earlier, where the defendant was alleged to have killed Dangerous Dan, but the evidence established that he killed Little Nell instead, appellant argues that the prosecution established a completely different offense—and that the evidence is therefore insufficient—because the indictment alleged that he fraudulently used the identifying information of an individual, whereas the proof established that he fraudulently used the identifying information of a law firm, which is distinct from an individual.

The problem with this argument is that Esther Noh was proven to be the special owner of the account at issue, and under our pleading rules, ownership may be alleged in either the actual owner or a special owner. The pertinent authority is Article 21.08 of the Code of Criminal Procedure, which provides as follows: “Where one person owns the property, and another person has the possession of the same, the ownership thereof may be alleged to be in either.”

This pleading rule has given rise to a best practice rule: “When property referred to in a charging instrument belongs to a corporation, it is not only permissible but the better pleading practice to allege ownership in a natural person acting for the corporation, the true owner of the property.” Dingler v. State, 705 S.W.2d 144, 145 (Tex. Crim. App. 1984).

Appellant counters that Article 21.08 has no application here because the relevant question is not “Who owns the account?” but rather “Who does the account number identify?”

Article 21.08 is commonly applied in cases of theft, where the existence of an owner is a statutory element. See Tex. Penal Code § 31.03(a) (“A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.”). There is no such element in cases of fraudulent use of identifying information, as appellant correctly observes. Section 32.51 contains no mention of an “owner.” Nor does it even contain a mention of “property.” But these differences do not preclude an application of Article 21.08.

In theft cases, the name of the owner is not a substantive element of the offense. See Byrd, 336 S.W.3d at 251–52. But when it is known, the name of the owner should still be alleged in combination with the property alleged to have been taken, because a name helps to define the allowable unit of prosecution. See Tex. Code Crim. Proc. art. 21.09 (“If known, personal property alleged in an indictment shall be identified by name, kind, number, and ownership. When such is unknown, that fact shall be stated, and a general classification, describing and identifying the property as near as may be, shall suffice.”); Johnson, 364 S.W.3d at 297 (“Theft has two gravamina: the property and ownership. These elements alone do not always define the allowable unit of prosecution for theft (property can be jointly owned), but the allowable unit of prosecution can at least be derived from the combination of these elements: different property taken from different persons are different thefts.”). Article 21.08 operates by allowing this ownership allegation in alternative persons, including business entities.

A similar analysis applies in this case, where appellant was alleged to have used a financial institution account number under Section 32.51(a)(1)(C). The account itself has an owner, and the name of the owner helps to describe the corresponding account number, which is the allowable unit of prosecution. See Ex parte Bodden, 707 S.W.3d 399, 407 (Tex. Crim. App. 2024) (indicating that a prosecution under Section 32.51(a)(1)(C) “might also require the account holder's name ․ to actually identify a person and to then constitute a single piece of identifying information”). We conclude that Article 21.08 permits the prosecution to allege such ownership with either the actual owner of the account (e.g., Esther's law firm) or the special owner in possession (e.g., Esther, the individual).

Appellant still suggests that Section 32.51 requires a different sort of analysis because the statute is specifically concerned with “identifying information.” His position appears to be that if an indictment alleges one identity, then any variance in proof, no matter how slight, would render the evidence legally insufficient.

Our jurisprudence does not support such a hypertechnical argument, because the test for materiality is simply whether the variance prejudiced the defendant's substantial rights. See Ramjattansingh, 548 S.W.3d at 547.

Suppose that the indictment in this case contained a typographical error by alleging that appellant had fraudulently used the identifying information of “Hester” Noh, and that, on a different set of facts, the evidence at trial established that appellant had fraudulently used the identifying information of Esther Noh (the individual, not her law firm). Or perhaps suppose that Hester was not a typo at all because she answered to that similar-sounding name, but the evidence at trial still referred to her true legal name of Esther. In either of these scenarios, if the prosecution established that the person named in the indictment was the same person whose identifying information was fraudulently used, would the minor discrepancy in the spelling of those two names prejudice appellant's substantial rights, resulting in a fatal variance and failure of proof? The case law would suggest not, especially if there was no claim of surprise. See Dingler, 705 S.W.2d at 145 (“The rule of ‘idem sonans’ is that absolute accuracy in spelling a name is not required in a legal document or proceedings, either civil or criminal; that if the name, as spelled in the document, though different from the correct spelling thereof, conveys to the ear, when pronounced according to the commonly accepted methods, a sound practically identical with the correct name as commonly pronounced, the name thus given is a sufficient identification of the individual referred to, and no advantage can be taken of the clerical error.”).

Notably, appellant never claimed surprise in the trial court. When the prosecution offered into evidence the banking records, which showed that title was held in the name of Esther's law firm, instead of in her individual capacity, the defense did not object or otherwise complain that it was not adequately informed of the charged offense. Similarly, after the prosecution rested its case, the defense did not complain that the prosecution had proven a different offense than the one alleged in the indictment. Quite the opposite, the defense successfully moved for a directed verdict on a separate charge, and then affirmatively declined to present a similar motion on the two charges that remained.

Appellant has not made a claim of surprise in this court either. His briefing is entirely silent on the issue. Neither his opening brief nor his reply brief even contains the word “prejudice.” We accordingly conclude that appellant did not satisfy his burden of establishing any claim that the indictment, as written, failed to adequately inform him of the pending charge. See Santana v. State, 59 S.W.3d 187, 194 (Tex. Crim. App. 2001) (“In variance law, it is well-settled that the burden of demonstrating surprise or prejudice rests with the defendant.”).

Appellant similarly failed to address in his briefing the risk of being prosecuted again for the same offense. But even if he had addressed that point in his briefing—and assuming further that Article 21.08 did not apply—we could not agree with any claim of prejudice. In the event of a second prosecution, appellant could avail himself of the entire transcript, which showed that the focus of the trial was appellant's fraudulent use of the law firm's identifying information. Thus, any subsequent prosecution for that offense would be barred by the Double Jeopardy Clause. Id. at 195–96.

For all of the foregoing reasons, we conclude that appellant did not establish that the variance in this case prejudiced his substantial rights. We likewise conclude that the variance was immaterial, which means that it must be disregarded. See Gollihar v. State, 46 S.W.3d 243, 258 (Tex. Crim. App. 2001) (“An immaterial variance is disregarded in a sufficiency of the evidence review.”). And because appellant's sufficiency challenge was premised entirely on the immaterial variance, our sufficiency review is ended. Id. (“Because appellant's insufficiency claim is based solely on the variance, our inquiry is ended.”).

THEFT

The indictment alleged that appellant unlawfully appropriated “money owned by Esther Noh.” Appellant makes no complaint regarding this allegation of ownership. Instead, in his second issue, he focuses on the object of his alleged misappropriation, which was simply described as “money.”

Appellant acknowledges that the evidence supports a finding that he committed an unlawful “electronic transfer of funds,” but he contends that this electronic transfer did not strictly involve a misappropriation of “money” because money refers to tangible legal tender. Absent proof that the electronic funds were ever converted to legal tender, appellant argues that the evidence is insufficient to support his conviction and that he is entitled to an acquittal.

Appellant bases this argument largely on Cousins v. State, 224 S.W.2d 260 (Tex. Crim. App. 1949), which held that “the term ‘money,’ as used in relation to the crime of theft, has been judicially defined as legal tender coins or legal tender currency of the United States.” Id. at 261. Of course, Cousins predates the age of the Internet and of electronic banking. It also predates the modern Penal Code, which does not define money in such restrictive terms. In fact, the Penal Code does not define money at all.

Nevertheless, appellant argues that money has a restrictive meaning because the Penal Code describes money as a type of document. He refers to Section 31.01, which defines the word “property” as meaning “(A) real property; (B) tangible or intangible personal property including anything severed from land; or (C) a document, including money, that represents or embodies anything of value.” See Tex. Penal Code § 31.01(5). But the reference to money in this definition is immediately preceded by the word “including,” which is a term of enlargement, not a term of limitation or exclusive enumeration. See Tex. Gov't Code § 311.005(13). Accordingly, we do not read the word money restrictively as though it must be in document form. Indeed, in Coats v. State, 712 S.W.2d 250 (Tex. Crim. App. 1986)—decided more than thirty years after Cousins, the Court of Criminal Appeals recognized that money can be transferred “in several diverse” ways without the handling of tangible legal tender. Id. at 522–23 (“Clearly, money or currency is frequently transferred without the owner of the currency being in actual possession of the money; a nonpossessory interest in currency is not only possible, it has become a common method of transferring currency.”).

Appellant counters that Coats dealt primarily with the meaning of “appropriate” under Section 31.01(4) of the Texas Penal Code, and that it did not disturb the holding in Cousins, which defined money in terms of legal tender. We disagree. Coats unmistakably recognized that money can exist in purely electronic form. Id. at 521 (“In this advanced electronic era, money is frequently transferred without passing from the actual possession of one individual to another.”).

Appellant also directs our attention to Chachere v. State, 811 S.W.2d 135 (Tex. App.—Houston [1st Dist.] 1991, pet. ref'd), but that case dealt with an insurance draft, which the court of appeals regarded as “not readily negotiable into cash.” Id. at 137. That case does not stand for the proposition that money is not involved in an electronic transfer of funds from a bank.

The prosecution alleged that appellant unlawfully appropriated Esther Noh's property, which was further described as “money.” See Tex. Code Crim. Proc. art. 21.09. The prosecution also proved that appellant completed this unlawful appropriation through an electronic transfer of funds. Viewing such evidence in the light most favorable to the verdict, we conclude that the evidence is legally sufficient to support every essential element of the offense beyond a reasonable doubt.

CLERICAL ERRORS

The judgments of conviction in these cases are printed on standardized forms. Each form contains a field for the offense of conviction, as well as a field for the statute of the convicted offense. The trial court completed the fields for the offense of conviction, but it left blank the remaining fields for the statute of the offense. Appellant argues that these omissions are clerical errors that we have the power to correct. See Tex. R. App. P. 43.2(b) (“The court of appeals may modify the trial court's judgment and affirm it as modified.”); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (providing that the court of appeals has the authority to reform a judgment “to make the record speak the truth”).

The State responds that the trial court did not commit error. The State points out that the name of the offense must appear in the judgment, but that there is no positive requirement that the statute of the offense must also appear. See Tex. Code Crim. Proc. art. 42.01, § 1(13).

Nevertheless, consistent with its position in other appeals, the State does not oppose reforming the judgments to include the statutes for each offense of conviction. See, e.g., Shumate v. State, 649 S.W.3d 240, 244 (Tex. App.—Dallas 2021, no pet.) (the State similarly agreed that the judgment could be modified to reflect the statute of the convicted offense).

Without deciding whether the trial court committed error, we reform the judgments to complete the missing fields.

CONSOLIDATED COURT COSTS

In each judgment, the trial court assessed $290 in consolidated court costs. Because these costs were assessed in cases that were tried together, appellant argues that they are duplicative and must be deleted from one of the bills of costs. See Tex. Code Crim. Proc. art. 102.073(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.”).

The State agrees that the costs are duplicative and must be deleted.

We sustain appellant's argument and delete the $290 in consolidated court costs in the theft case. See Guerra v. State, 547 S.W.3d 445, 446–47 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (deleting duplicative costs pursuant to Article 102.073(a)).

RELEASE FEES AND DUPLICATIVE REIMBURSEMENT FEES

Upon conviction, the defendant must be assessed certain reimbursement fees, including a $5 fee for any release from confinement. See Tex. Code Crim. Proc. art. 102.011(a)(6).

In the fraudulent use case, the trial court assessed a release fee of $20, representing four separate releases. Appellant argues that this fee was miscalculated because the record shows that he was only released three times, after he posted two trial bonds and one appeal bond. He accordingly contends that the fee should only be $15.

The State agrees that the release fee should be reduced to $15.

In both cases, the trial court also assessed other reimbursement fees for appellant's bond approval, commitment, and jury summons. When the recalculated fee of $15 from the fraudulent use case is included among those fees, as well as the same $15 fee in the theft case, there is an aggregate amount of $50 in reimbursement fees, which appellant argues are duplicative and must be deleted because they are not fees that may be separately assessed upon each conviction. See Tex. Code Crim. Proc. art. 102.011(e) (providing that other sorts of reimbursement fees shall be assessed upon each conviction).

The State agrees with all of these points.

We sustain appellant's argument and delete $50 in reimbursement fees in the theft case.

CAPIAS EXECUTION FEE

Upon conviction, the defendant must also be assessed a $50 fee for the execution or processing of any arrest warrant, capias, or capias pro fine. See Tex. Code Crim. Proc. art. 102.011(a)(2).

The trial court here assessed a capias execution fee of $100 in the theft case. Appellant argues that this assessment is erroneous because the record only contains a single executed capias. He also observes that the record contains a separate “Court Directive,” but he argues that this document does not satisfy the statutory requirements of a capias. See Tex. Code Crim. Proc. art. 23.01.

The State agrees that the “Court Directive” does not meet the requirements of either a capias or an arrest warrant.

We sustain appellant's argument and reduce the $100 capias execution fee to $50 in the theft case.

ARREST WITHOUT CAPIAS FEE

Upon conviction, the defendant must be assessed a $5 fee if he was arrested by a peace officer without a warrant. See Tex. Code Crim. Proc. art. 102.011(a)(1). This fee must be assessed for each arrest arising out of each conviction, regardless of whether the defendant was also arrested at the same time for another offense. See Tex. Code Crim. Proc. art. 102.011(e).

The trial court here assessed a $5 fee in each case. Appellant argues that this assessment is erroneous because there is no evidence that he was ever arrested without a warrant.

The State agrees with this argument, but only in part. The State concedes that there is no basis for a $5 fee in the fraudulent use case because the record affirmatively shows that appellant was arrested with a capias (for which he was assessed a separate $50 fee). But the State argues that the $5 fee may be assessed in the theft case because appellant was arrested pursuant to the Court Directive, which, as mentioned above, did not qualify as a capias.

Appellant counters that the fee is unwarranted because he was already in jail when the Court Directive was executed. But his presence in jail does not negate the evidence that he was still arrested.

We sustain appellant's argument in part and delete the $5 fee in the fraudulent use case.

SUMMONING WITNESS FEES

Upon conviction, the defendant must be assessed a $5 fee to defray the cost of the services provided by a peace officer in summoning a witness. See Tex. Code Crim. Proc. art. 102.011(a)(3). This fee is assessed for each witness, each time the witness is summoned. See Ramirez v. State, 410 S.W.3d 359, 366 (Tex. App.—Houston [1st Dist.] 2013, pet. ref'd) (“Accordingly, we construe the statute to require a $5 fee for each witness summoned each time the witness is summoned.”); see also Allen v. State, 614 S.W.3d 736, 745 (Tex. Crim. App. 2019) (“The legitimate purpose of the fee is satisfied as soon as the expenses are incurred by the peace officer performing the services.”).

In the fraudulent use case, the trial court did not assess a summoning witness fee, but in the theft case, the trial court assessed a fee of $100, representing twenty different summonses. Appellant argues that this fee should be reduced to $20 because the record supports only four summonses.

The State agrees that the fee should be reduced because of certain defects in service. For example, some returns recite that the subpoena was served by an assistant district attorney, rather than by a peace officer. Other returns recite that the subpoena was “unexecuted.” When the defective returns are omitted, the State counts eight valid summonses (including the four already identified by appellant). Based on those eight summonses, the State argues that the fee should only be reduced to $40.

We need only focus on the four summonses over which the parties are not in consensus.

Two of those summonses were directed to the detective in the financial crimes unit, but the returns recite that service was made on the “HPD Liaison.” We agree with appellant that fees should not be assessed for these subpoenas because service was not made on the witness himself. See Tex. Code Crim. Proc. art. 24.04(a)(2) (“A subpoena is served by delivering a copy of the subpoena to the witness.”).

The two remaining summonses were directed to Esther. One of the returns recites that Esther received a summons by email, which is a valid means of service. See Tex. Code Crim. Proc. art. 24.04(a)(3). But this return is duplicative, as there is already a separate return in the record stating that Esther was served by email with a copy of the very same subpoena.

The other return for Esther recites that service was made on a front desk agent at Esther's law firm. This service was not valid because it was not made on Esther herself.

Because we conclude that the fees should not have been assessed for the four summonses just described, we sustain appellant's arguments and reduce the summoning witness fees in his theft case from $100 to $20.

FINES

As part of appellant's punishment, the jury assessed a fine of $5,000 in each of his two cases. The trial court included this fine as a line item in each bill of costs. Appellant argues that this fine should be omitted because it is not a cost.

The State agrees that the fines should be omitted from the bills of costs.

We sustain appellant's argument and delete the $5,000 fines from the bills of costs. See Jones v. State, 691 S.W.3d 671, 679 (Tex. App.—Houston [14th Dist.] 2024, pet. ref'd).

CONCLUSION

In the fraudulent use case (Appeal No. 14-24-00645-CR), we modify the judgment by specifying the statute of the offense as Tex. Penal Code § 32.51(b)(1), (c)(1). We also modify the bill of costs by deleting the $5,000 fine; by reducing the release fee from $20 to $15; and by deleting the $5 fee for arrest without capias, such that the total amount assessed in the bill of costs is reduced from $5,440 to $440.

In the theft case (Appeal No. 14-24-00646-CR), we modify the judgment by specifying the statute of the offense as Tex. Penal Code § 31.03(a), (e)(4)(A); by deleting the consolidated court costs of $290; and by reducing the reimbursement fees from $260 to $80. We also modify the bill of costs by deleting the $5,000 fine; by deleting the consolidated court costs of $185 and $105; by reducing the capias execution fee from $100 to $50; by reducing the summoning witness fee from $100 to $20; by deleting the bond approval fee of $20; by reducing the commitment fee from $15 to $5 (deleting $10 in duplicative fees from the fraudulent use case); by deleting the release fee of $15; and by deleting the jury summons fee of $5, such that the total amount assessed in the bill of costs is reduced from $5,550 to $80.

The judgments are affirmed as so modified.

Tracy Christopher, Chief Justice