Andreas Karl Henschke v. The State of Texas Appeal from 9th District Court of Montgomery County (memorandum opinion)

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In The Court of Appeals Ninth District of Texas at Beaumont __________________ NO. 09-18-00158-CR NO. 09-18-00159-CR NO. 09-18-00160-CR NO. 09-18-00161-CR __________________ ANDREAS KARL HENSCHKE, Appellant V. THE STATE OF TEXAS, Appellee __________________________________________________________________ On Appeal from the 9th District Court Montgomery County, Texas Trial Cause Nos. 17-09-11090-CR, 17-09-11091-CR, 17-09-11092-CR, 17-09-11095-CR __________________________________________________________________ MEMORANDUM OPINION Article 102.073 of the Code of Criminal Procedure provides that “[i]n 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 1 once against the defendant.”1 Thus, trial courts may not assess costs more than once when the State tries a defendant in cases consolidated and tried in one proceeding.2 The record shows the trial court assessed costs more than once here. In the brief Andreas Karl Henschke filed to support his appeals in Trial Court Cause Numbers 17-09-11090-CR, 17-09-11091-CR, 17-09-11092-CR and 17-09-11095-CR, he argues the trial court erred by assessing court costs against him in all four cases when they were tried in a single proceeding. In its response, the State concedes error. The record on appeal shows that the trial court assessed $594 in each of the four judgments at issue in Henschke’s appeals. Court costs are a nonpunitive recoupment of the costs of judicial resources expended in the trial of a case. 3 The costs the court assessed are reviewable on appeal to determine “if there is a basis for the cost, not to determine if there was sufficient evidence offered at trial to prove each cost[.]” 4 A defendant may complain about error in assessing court costs for the first time on appeal.5 Here, no dispute exists about whether the cases were tried in a 1 Tex. Code Crim. Proc. Ann. art. 102.073(a). 2 Hurlburt v. State, 506 S.W.3d 199, 203 (Tex. App.—Waco 2016, no pet.). 3 Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). 4 Id. 5 Id. at 391. 2 single proceeding. To remedy the trial court’s error, we modify the judgments in three of the four cases to require Henschke to pay costs for the cases tried in a single proceeding only once. 6 In multiple cases tried together, taxable costs are determined by “using the highest category of offense that is possible based on the defendant’s convictions.” 7 Of Henschke’s convictions, the highest-category offense is a second-degree felony, which is his conviction for promoting child pornography. 8 The cost bill in that case reflects the assessable costs were $594, which is the amount the trial court assessed. To correct the errors in the judgments in Trial Court Cause Numbers 17-0911090-CR, 17-09-11091-CR and 17-09-11092-CR, we delete the court costs in those judgments and award $0 in costs. As modified, the judgments in Trial Court Cause Numbers 17-09-11090-CR, 17-09-11091-CR, and 17-09-11092-CR are affirmed. 9 We affirm the judgment the trial court issued on Henschke’s promotion of child pornography case, Trial Court Cause Number 17-09-11095-CR. 10 6 Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013). 7 Tex. Code. Crim. Proc. Ann. art. 102.073(b). 8 See Tex. Penal Code Ann. § 43.26(g). 9 See Tex. R. App. P. 43.2(b). 10 Id. 43.2(a). 3 AFFIRMED AS MODIFIED. _________________________ HOLLIS HORTON Justice Submitted on November 19, 2019 Opinion Delivered January 15, 2020 Do Not Publish Before McKeithen, C.J., Kreger and Horton, JJ. 4

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