Vincent Gage Santoro v. State ( 2018 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-18-00039-CR
NO. 02-18-00040-CR
VINCENT GAGE SANTORO APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NOS. 1450354D, 1453777D
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MEMORANDUM OPINION 1
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Appellant Vincent Gage Santoro pled guilty to theft and aggravated
robbery, and the trial court convicted him of those two offenses, sentenced him,
and assessed court costs in each case. Appellant does not challenge either
conviction or sentence, but in one point, he contends that the trial court erred by
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See Tex. R. App. P. 47.4.
assessing court costs for both offenses because they were tried together in a
single proceeding. The State agrees. We affirm the trial court’s judgment in the
aggravated robbery case (No. 02-18-00040-CR), and we modify the trial court’s
judgment in the theft case (No. 02-18-00039-CR) to delete court costs and affirm
that judgment as modified.
I. BRIEF FACTS
Upon Appellant’s open guilty pleas to aggravated robbery and theft,
charged in separate indictments, the trial court ordered a single presentence
investigation report and later held a single punishment trial on both offenses.
Afterward, the trial court convicted Appellant of the two offenses and sentenced
him to eight years’ confinement in prison for the aggravated robbery conviction
and to two years’ confinement in state jail for the theft conviction. The trial court
assessed $289 in court costs in each case.
II. DISCUSSION
In his sole point, Appellant contends that the trial court erred by assessing
duplicate court costs.
A. A Trial Court Can Assess Only One Set of Court Costs Against a
Defendant Convicted of Multiple Offenses or Counts “in a Single
Criminal Action.”
Article 102.073 of the Texas 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.
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(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.
Tex. Code Crim. Proc. Ann. art. 102.073 (West 2018). The statute does not
define “in a single criminal action.” See id.
In 1995, the Texas Court of Criminal Appeals defined the term as it was
used in a different statute. Ex parte Pharr, 897 S.W.2d 795, 796 (Tex. Crim.
App. 1995). The court held, “A defendant is prosecuted in a single criminal
action when allegations and evidence of more than one offense arising out of the
same criminal episode are presented in a single trial or plea proceedings.” Id.
(emphasis added) (citation and internal quotation marks omitted). The Pharr
court was defining what “in a single criminal action” meant for section 3.03 of the
Texas Penal Code, id., which includes the “criminal episode” language
emphasized above, Tex. Penal Code Ann. § 3.03 (West Supp. 2017).
Because article 102.073 does not mention a criminal episode, for that
statute’s interpretation, our sister court in Waco has modified the Pharr definition
for “in a single criminal action” to refer to when “allegations and evidence of more
than one offense . . . are presented in a single trial or plea proceeding.” Hurlburt
v. State, 506 S.W.3d 199, 203 (Tex. App.—Waco 2016, no pet.). Several of our
sister courts have followed Hurlburt in both applying the modified definition and
deleting duplicate court costs for multiple offenses tried together, regardless of
whether the offenses were completed in the same criminal episode. See Derese
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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
that case was tried along with a robbery and court costs were assessed for the
robbery conviction); Valdez v. State, Nos. 03-16-00811-CR, 03-16-00812-CR,
2017 WL 4478233, at *3–4 (Tex. App.—Austin Oct. 6, 2017, no pet.) (mem. op.,
not designated for publication) (deleting court costs for conviction for unlawful
possession of a firearm by a felon when that case was tried along with
possession of a controlled substance and court costs were assessed for the
possession conviction); 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) (deleting court costs for robbery conviction when
court costs were assessed for aggravated robbery conviction tried in same
proceeding); Vega v. State, No. 08-16-00057-CR, 2017 WL 1511336, at *1–
2 (Tex. App.—El Paso Apr. 26, 2017, no pet.) (not designated for publication)
(deleting court costs assessed for four convictions of aggravated sexual assault
of a child when five counts were tried together, defendant was convicted of all
five, and court costs were assessed in all five). We agree with the Hurlburt court
(and our other sister courts who have followed it) that “in a single criminal action”
refers to those occasions when “allegations and evidence of more than one
offense . . . are presented in a single trial or plea proceeding.” Hurlburt,
506 S.W.3d at 203.
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B. The Trial Court Erred by Assessing Court Costs for Both Offenses.
There is no dispute that the trial court tried the theft and aggravated
robbery offenses together in one proceeding but assessed court costs against
Appellant for both offenses. We therefore agree with the parties that the trial
court erred by assessing duplicate court costs. See id.; see also Tex. Code
Crim. Proc. Ann. art. 102.073(a). We sustain Appellant’s sole point.
C. We Delete the Court Costs Assessed for the Lower-Category
Conviction.
Appellant seeks modification of the trial court’s judgment in the theft case
to delete the court costs, and the State agrees. We hold that this is the correct
remedy.
When a trial court erroneously assesses court costs for multiple
convictions tried in a single proceeding, we retain the court costs for the offense
of the highest category. Tex. Code Crim. Proc. Ann. art. 102.073(b); Valdez,
2017 WL 4478233, at *4, *6 (retaining the court costs assessed for the second-
degree possession conviction but deleting the costs assessed for the third-
degree conviction of unlawful possession of a firearm by a felon). The trial court
here erroneously assessed court costs of $289 for each of Appellant’s
convictions. Aggravated robbery is a first-degree felony. Tex. Penal Code Ann.
§ 29.03(b) (West 2011). Theft of property worth less than $2,500 with two prior
theft convictions is a state jail felony. Id. § 31.03(e)(4)(D) (West Supp. 2017).
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We therefore modify the trial court’s judgment to delete the assessed court costs
in the theft case.
III. CONCLUSION
Having sustained Appellant’s sole point, we modify the trial court’s
judgment to delete the court costs assessed for the theft conviction, affirm that
judgment as modified, and affirm the trial court’s judgment in the aggravated
robbery case.
/s/ Mark T. Pittman
MARK T. PITTMAN
JUSTICE
PANEL: SUDDERTH, C.J.; PITTMAN and BIRDWELL, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 28, 2018
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