Kennie Lewis Cook, Jr. v. the State of Texas ( 2023 )

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-20-00002-CR
KENNIE LEWIS COOK, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 5th District Court
Cass County, Texas
Trial Court No. 2019F00101
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion on Remand by Chief Justice Stevens
MEMORANDUM OPINION ON REMAND
A Cass County jury convicted Kennie Lewis Cook, Jr., of aggravated sexual assault of a
child. Cook was sentenced to forty years’ imprisonment, was ordered to pay a $1,000.00 fine,
and was assessed court costs of $401.00.
In a prior opinion, we reversed the trial court’s judgment and remanded the case for a
new trial after sustaining Cook’s complaint that the trial court erred by allowing an officer to
testify that he believed the child victim.1 Cook v. State, No. 06-20-00002-CR, 2021 WL
4876966, at *1 (Tex. App.—Texarkana Oct. 20, 2021) (mem. op., not designated for
publication), rev’d, Nos. PD-0850-21, PD-0853-21, PD-0854-21, 2023 WL 152984 (Tex. Crim.
App. Jan. 11, 2023). The Texas Court of Criminal Appeals declined to address whether the
admission of the officer’s testimony was error, but nevertheless found that Cook was unharmed
by the officer’s testimony. Cook, 2023 WL 152984, at *3. As a result, it reversed our opinion
and remanded the case to us to “reach the merits of [Cook’s] remaining grounds.” Id. at *6.
Cook argues in his remaining grounds (1) that the jury’s verdict is not supported by
legally sufficient evidence, (2) that the trial court should have ruled on his Batson2 challenge,
(3) that his counsel rendered ineffective assistance by failing to preserve his Batson challenge,
and (4) that the trial court erred by permitting a witness to testify in violation of Rule 614, the
witness sequestration rule.
1
Cook also appealed from two additional convictions of aggravated sexual assault of a child in companion cause
numbers 06-20-00001-CR and 06-20-00003-CR.
2
Batson v. Kentucky, 476 U.S. 79 (1986).
2
We addressed these issues in our opinion of this date in Cook’s appeal in companion
cause number 06-20-00001-CR. For the reasons stated therein, we conclude (1) that legally
sufficient evidence supported the jury’s verdict of guilt, (2) that, while Cook’s counsel waived
his Batson challenge, harm from the alleged ineffective assistance of counsel is not shown, and
(3) that the trial court did not abuse its discretion in overruling Cook’s Rule 614 objection.
By separate point, Cook also argues that the trial court erred in its assessment of
duplicative court costs in this case. The State concedes the point of error, and we agree that
duplicative court costs should not have been assessed.
Article 102.073 of the Texas Code of Criminal Procedure states, “In a single criminal
action in which a defendant is convicted of two or more offenses . . . , the court may assess each
court cost or fee only once against the defendant.” TEX. CODE CRIM. PROC. ANN. art. 102.073(a).
The State’s allegations of aggravated sexual assault of a child in this case and in companion
cause numbers 06-20-00001-CR and 06-20-00003-CR were consolidated for trial. As a result,
Cook was convicted of this offense and two other offenses in the same criminal action. Because
the same court costs imposed in this case were already assessed against Cook in companion
cause number 06-20-00001-CR, we must delete the duplicative court costs in this case.
3
We modify the clerk’s bill of costs and the trial court’s judgment by deleting the
duplicative court costs of $401.00.3 As modified, we affirm the trial court’s judgment.
Scott E. Stevens
Chief Justice
Date Submitted: February 22, 2023
Date Decided: March 10, 2023
Do Not Publish
3
This Court has the authority to modify incorrect judgments when it has the information necessary to do so. See
TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Rhoten v. State, 299 S.W.3d
349, 356 (Tex. App.—Texarkana 2009, no pet.).
4