Description: Tyren Phillips brings this appeal seeking reformation of two judgments of conviction:
one for aggravated robbery and one for evading arrest. Appellant was convicted of both offenses
in a single criminal action. In his first issue, appellant requests one of the judgments be reformed
to delete duplicate court costs. In his second issue, appellant asserts the judgments must be
reformed to delete costs assessed against him unconstitutionally.
Article 102.073 of the Texas Code of Criminal Procedure states “[i]n 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)
(West Supp. 2017). The article further states that “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
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offense that is possible based on the defendant’s convictions.” Id. Art. 102.073(b). Here, the
trial court assessed court costs of $269 in both the judgment for the aggravated robbery offense
and the judgment for the evading arrest offense even though the offenses were prosecuted in the
same criminal action. The State concedes the bill of costs certification for each case reflects
identical assessed costs. Appellant should have been assessed costs only in the aggravated
robbery case which, as a first-degree felony, was the higher category offense. Id. We therefore
modify the judgment for appellant’s evading arrest conviction to delete the award of costs. See
Robinson v. State, 514 S.W.3d 816, 828 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d).
Appellant next contends a portion of the costs assessed against him must be deleted as
constitutionally impermissible. Specifically, appellant requests the deletion of consolidated court
costs statutorily allocated to the comprehensive rehabilitation and abused children’s counseling
accounts because such assessed costs were declared facially unconstitutional by the Texas Court
of Criminal Appeals in Salinas v. State, 523 S.W.3d 103, 113 (Tex. Crim. App. 2017). After the
Salinas opinion issued, the legislature amended the fees statute to remove the unconstitutional
allocation. See TEX. LOC. GOV’T CODE ANN. § 133.102(e) (amended by Act of Apr. 27, 2017,
85th Leg. R.S., ch. 966 §1 (effective June 15, 2017)). The court in Salinas explicitly limited the
retroactive application of its decision, however, to cases in which a petition for review raising the
issue of unconstitutional fees was pending before the decision issued. Salinas, 523 S.W.3d at
113. Prospective application was limited to cases in which the trial ended after the date the
mandate in Salinas issued. Id. Because appellant’s cases do not fit into either category outlined
in Salinas, appellant is not entitled to the relief he requests.
Based on the foregoing, we modify the trial court’s judgment in trial court cause number
F-1600624-H to delete the award of costs and affirm the judgment as modified.
Outcome: We affirm the trial court’s judgment in trial court cause number F-1651970-H.
