Opinion issued November 20, 2018




                                     In The

                              Court of Appeals
                                     For The

                         First District of Texas
                            ————————————
                              NO. 01-18-00601-CR
                              NO. 01-18-00602-CR
                           ———————————
                  KEITH BRIAN MATTHEWS, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


             On Appeal from the Criminal District Court No. 3
                         Tarrant County, Texas1
              Trial Court Case Nos. 1516429D & 1516483D


                         MEMORANDUM OPINION




1
     The Texas Supreme Court transferred this appeal from the Court of Appeals for
     the Second District of Texas. See TEX. GOV’T CODE § 73.001 (authorizing transfer
     of cases between courts of appeals).
      Appellant, Keith Brian Matthews, pleaded guilty to aggravated robbery with

a deadly weapon2 and theft of a firearm.3 After a presentence investigation, the trial

court assessed punishment at 11 years’ confinement on the aggravated robbery

case, two years’ confinement on the theft case, and $279 in court costs in each

case. Appellant contends that he was “unlawfully assessed duplicate court costs.”

We agree, affirm the aggravated-robbery judgment, modify the judgment in the

theft case to delete the court costs, and affirm the theft judgment as modified.

                               DUPLICATE COSTS

      In his sole issue on appeal, appellant contends that the trial court erred by

assessing court costs in both offenses because they were tried together in a single

proceeding. The State agrees. See Williams v. State, 495 S.W.3d 583, 589 (Tex.

App.—Houston [1st Dist.] 2016, pet. dism’d) (explaining that defendant may

challenge on appeal “basis for assessing costs three times when, under article

102.073(a), the costs should have only been assessed once”).

      Article 102.073 of the Code of Criminal Procedure provides:

      (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.


2
      Trial court case no. 1516483D, Appellate case no. 01-18-00602-CR.
3
      Trial court case no. 1516429D, Appellate case no. 01-18-00601-CR
                                          2
      (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 offense must be assessed using the highest category of offense
          that is possible based on the defendant’s convictions.

      (c) This article does not apply to a single criminal action alleging only
          the commission of two or more offenses punishable by fine only.

TEX. CODE CRIM. PROC. § 102.073.

      In a single criminal action means 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, 201–02 (Tex. App.—Waco 2016, no pet.); see also Cain v. State,

525 S.W.3d 728 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) (treating three

aggravated robberies tried together as single criminal action for duplicate-court-

cost purposes); 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

designated for publication) (deleting court costs for evading arrest or detention

conviction when tried in the same criminal action as robbery); Valdez v. State, No.

03-16-00811-CR, 2017 WL 4478233, at *3-6 (Tex. App.—Austin Oct. 6, 2017, no

pet.) (mem. op., not designated for publication) (deleting court costs on unlawful

possession of firearm conviction tried with possession of controlled substance in

same proceeding); Wells v. State, Nos. 12-17-00003-CR, 12-17-00004-CR, 2017

WL 3405317, at *3-4 (Tex. App.—Tyler Aug. 9, 2017, no pet.) (mem. op., not

designated for publication) (deletion of court costs for robbery conviction


                                         3
prosecuted in same plea proceeding as aggravated-robbery conviction); Vega v.

State, No. 08-16-00057-CR, 2017 WL 1511336, at *1–2 (Tex. App.—El Paso Apr.

26, 2017, no pet.) (mem. op., not designated for publication) (multiple sets of court

costs erroneously assessed when defendant convicted of five aggravated-sexual-

assault-of-a-child offenses in single non-jury trial).

      When, as here, duplicate court costs have been erroneously assessed by the

trial court, we modify the judgment to reflect only the court costs assessed for the

higher category of offense. TEX. CODE CRIM. PROC. art. 102.073(b). Aggravated

robbery is a first-degree felony and theft of a firearm is a state-jail felony. TEX.

PENAL CODE §29.03(b) (aggravated robbery); TEX. PENAL CODE ANN. §

31.03(e)(4)(C) (theft of firearm).

                                     CONCLUSION

      We affirm the judgment in the aggravated-robbery conviction; we modify

the judgment in the theft-of-a-firearm judgment to delete the $279 in court costs

and, as modified, affirm the theft of a firearm judgment.




                                                         Sherry Radack
                                                         Chief Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.

Do not publish. TEX. R. APP. P. 47.2(b).
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