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

          No. 02-18-00036-CR
          No. 02-18-00220-CR
     ___________________________

    DAVID ALLEN STEEN, Appellant

                      V.

          THE STATE OF TEXAS


  On Appeal from the 213th District Court
           Tarrant County, Texas
   Trial Court Nos. 1442404D, 1442402D


Before Sudderth, C.J.; Walker and Birdwell, JJ.
 Memorandum Opinion by Justice Birdwell
                            MEMORANDUM OPINION

         In accordance with his guilty pleas, the trial court convicted appellant David

Allen Steen of two third-degree felonies: harassment of a public servant and driving

while intoxicated (DWI).1 In three points on appeal, he argues that the trial court

violated his constitutional right of confrontation by admitting a presentence

investigation report (PSI) as punishment evidence, that the trial court “unlawfully

assessed duplicate court costs,” and that one of the court costs that the trial court

assessed for the DWI conviction derived from a facially unconstitutional statute.2 We

reject Steen’s argument concerning the admission of the PSI but sustain his

contentions concerning the court costs, so we modify the trial court’s judgments and

affirm them as modified.

                                      Background

         In separate indictments, a grand jury charged Steen with harassment of a public

servant and with DWI. He entered an open guilty plea to each offense, and the trial

court ordered the preparation of a PSI. Later, at a hearing to determine Steen’s

punishment, the State offered the PSI as evidence, Steen did not object to its


         See Tex. Penal Code Ann. §§ 22.11(a)(1), (b), 49.04(a), 49.09(b) (West Supp.
         1

2018).

       Steen filed two briefs in this court. In his brief for cause number 02-18-00036-
         2

CR, relating to his conviction for harassment of a public servant, he raises only one
point that concerns the admission of the PSI. In his brief for cause number 02-18-
00220-CR, relating to his DWI conviction, he raises all three points.


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admission, and the trial court admitted it. After the trial court heard testimony from

several witnesses, the court convicted Steen, sentenced him to five years’ confinement

for the harassment charge, and sentenced him to seven years’ confinement for the

DWI charge.

      In the judgments related to both offenses, the trial court assessed court costs.

The court costs for the harassment offense totaled $289. The costs for the DWI

offense totaled $464, including a $100 cost for “Emerg Med Serv.” Steen brought

these appeals.

                                Admission of the PSI

      In his first point in each appeal, Steen contends that the trial court violated his

constitutional right to confront witnesses against him by admitting the PSI. See U.S.

Const. amend. VI. He recognizes that he did not object to the PSI’s admission and

that general principles of error preservation require such an objection to preserve a

complaint for our review. See Tex. R. App. P. 33.1(a)(1); Paredes v. State, 129 S.W.3d

530, 535 (Tex. Crim. App. 2004) (applying rule 33.1(a)’s error preservation principles

to a complaint that the admission of evidence violated a defendant’s constitutional

right to confront witnesses). He argues, however, that because the law is well-settled

that admission of a PSI does not violate the right of confrontation,3 any objection

would have been futile, and an objection was therefore unnecessary.


      3
       Steen concedes that on the merits of his complaint, “current Texas law is
adverse to [his] argument.” See, e.g., Stringer v. State, 309 S.W.3d 42, 48 (Tex. Crim.

                                           3
       We have previously rejected this exact argument, and Steen’s contention does

not persuade us to depart from our precedent. See Jones v. State, No. 02-17-00332-CR,

2018 WL 2992591, at *1 (Tex. App.—Fort Worth June 14, 2018, pet. ref’d) (mem.

op., not designated for publication); Sell v. State, 488 S.W.3d 397, 398–99 (Tex. App.—

Fort Worth 2016, pet. ref’d). Thus, we hold that Steen forfeited his complaint about

the admission of the PSI, and we overrule his first point in each appeal. See Tex. R.

App. P. 33.1(a)(1); Sell, 488 S.W.3d at 399.

                                    Duplicate Costs

       In his second point in his DWI appeal, Steen asserts that the trial court erred

by assessing duplicate court costs in the DWI and harassment judgments. He

contends that because the offenses were subject to a single plea proceeding and a

single punishment proceeding, the trial court could assess court costs only once.

       For this argument, Steen relies on article 102.073 of the code of criminal

procedure. See Tex. Code Crim. Proc. Ann. art. 102.073 (West 2018). Article 102.073

states in part,

       (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.

       (b) In a criminal action described by Subsection (a), each court cost or
       fee the amount of which is determined according to the category of


App. 2010) (“When the sentence is determined by the judge, the information in a PSI
is not subject to the Confrontation Clause.”).


                                               4
       offense must be assessed using the highest category of offense that is
       possible based on the defendant’s convictions.

Id. art. 102.073(a)–(b); see Santoro v. State, Nos. 02-18-00039-CR, 02-18-00040-CR,

2018 WL 3153564, at *1 (Tex. App.—Fort Worth June 28, 2018, no pet.) (mem. op.,

not designated for publication) (holding that article 102.073 applies when allegations

and evidence of more than one offense are presented in a single trial or plea

proceeding). The State concedes that under this statute, the trial court unlawfully

assessed duplicate costs against Steen.

       We agree with Steen and with the State that under article 102.073, the trial

court could assess each cost only once. See Tex. Code Crim. Proc. Ann. art.

102.073(a). Accordingly, we sustain Steen’s second point. Under Santoro, the correct

remedy is to generally retain the court costs “for the offense of the highest category.”

2018 WL 3153564, at *2; see also Long v. State, Nos. 02-17-00406-CR, 02-17-00407-CR,

2018 WL 3581008, at *3 (Tex. App.—Fort Worth July 26, 2018, pet. ref’d) (mem. op.,

not designated for publication) (holding that the trial court erred by assessing

duplicate court costs in the less serious offense).

       Here, the DWI and harassment offenses are both third-degree felonies. See Tex.

Penal Code Ann. §§ 22.11(b), 49.09(b)(2). All of the costs in the harassment judgment

duplicate costs in the DWI judgment, but the DWI judgment contains costs that do

not duplicate costs in the harassment judgment. Thus, to comply with article 102.073

by eliminating duplicate costs, we conclude that we must modify the harassment



                                             5
judgment in cause number 02-18-00036-CR (trial court cause number 1442404D) by

deleting all of the costs (totaling $289) contained in that judgment.4 See Tex. Code

Crim. Proc. Ann. art. 102.073(a); Tex. R. App. P. 43.2(b); Santoro, 2018 WL 3153564,

at *2; Cain v. State, 525 S.W.3d 728, 734 (Tex. App.—Houston [14th Dist.] 2017, pet.

ref’d) (deleting costs in judgments that assessed lower amounts than the costs in

another judgment).

                               Unconstitutional Cost

      In his third point in his DWI appeal, Steen contends that a $100 cost in the

DWI judgment for “Emerg Med Serv” is based on a facially unconstitutional statute,

article 102.0185(a) of the code of criminal procedure. See Tex. Code Crim. Proc. Ann.

art. 102.0185(a) (West 2018). The State concedes that the cost was based on article

102.0185(a), that article 102.0185(a) is facially unconstitutional, and that we should

modify the DWI judgment by deleting the cost. Based on our prior decisions, we

agree. See Albrecht v. State, No. 02-16-00316-CR, 2018 WL 285081, at *1 (Tex. App.—

Fort Worth Jan. 4, 2018, no pet.) (mem. op., not designated for publication); Casas v.

State, 524 S.W.3d 921, 927–28 (Tex. App.—Fort Worth 2017, no pet.). We sustain

Steen’s third point, and we will modify the DWI judgment by deleting the $100

“Emerg Med Serv” cost.


      4
       This is the relief that Steen requests. He contends, “Since both offenses are
third-degree felonies, the judgment with the lower amount of [costs] should be
modified to delete the costs.”


                                          6
                                     Conclusion

      Having overruled Steen’s first point and having sustained his second and third

points, we modify the trial court’s judgment in the harassment case (appellate cause

number 02-18-00036-CR and trial court cause number 1442404D) by deleting the

assessment of court costs of $289, and we modify the trial court’s judgment in the

DWI case (appellate cause number 02-18-00220-CR and trial court cause number

1442402D) by deleting the $100 cost for “Emerg Med Serv,” therefore reducing the

total costs in that case from $464 to $364. We affirm the trial court’s judgments as

modified. See Tex. R. App. P. 43.2(b).



                                                   /s/ Wade Birdwell
                                                   Wade Birdwell
                                                   Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: October 4, 2018




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