Andreas Karl Henschke v. State

• Court: Court of Appeals of Texas
• Decided: January 15, 2020
• Docket: 09-18-00160-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-18-00158-CR NO. 09-18-00159-CR NO. 09-18-00160-CR NO. 09-18-00161-CR __________________

ANDREAS KARL HENSCHKE, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 9th District Court Montgomery County, Texas Trial Cause Nos. 17-09-11090-CR, 17-09-11091-CR, 17-09-11092-CR, 17-09-11095-CR __________________________________________________________________

MEMORANDUM OPINION

Article 102.073 of the Code of Criminal Procedure provides that “[i]n 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

1 once against the defendant.”1 Thus, trial courts may not assess costs more than once

when the State tries a defendant in cases consolidated and tried in one proceeding.2

The record shows the trial court assessed costs more than once here. In the brief

Andreas Karl Henschke filed to support his appeals in Trial Court Cause Numbers

17-09-11090-CR, 17-09-11091-CR, 17-09-11092-CR and 17-09-11095-CR, he

argues the trial court erred by assessing court costs against him in all four cases when

they were tried in a single proceeding. In its response, the State concedes error.

The record on appeal shows that the trial court assessed $594 in each of the

four judgments at issue in Henschke’s appeals. Court costs are a nonpunitive

recoupment of the costs of judicial resources expended in the trial of a case. 3 The

costs the court assessed are reviewable on appeal to determine “if there is a basis for

the cost, not to determine if there was sufficient evidence offered at trial to prove

each cost[.]” 4 A defendant may complain about error in assessing court costs for the

first time on appeal.5 Here, no dispute exists about whether the cases were tried in a

1 Tex. Code Crim. Proc. Ann. art. 102.073(a). 2 Hurlburt v. State, 506 S.W.3d 199, 203 (Tex. App.—Waco 2016, no pet.). 3 Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). 4 Id. 5 Id. at 391. 2 single proceeding. To remedy the trial court’s error, we modify the judgments in

three of the four cases to require Henschke to pay costs for the cases tried in a single

proceeding only once. 6

In multiple cases tried together, taxable costs are determined by “using the

highest category of offense that is possible based on the defendant’s convictions.” 7

Of Henschke’s convictions, the highest-category offense is a second-degree felony,

which is his conviction for promoting child pornography. 8 The cost bill in that case

reflects the assessable costs were $594, which is the amount the trial court assessed.

To correct the errors in the judgments in Trial Court Cause Numbers 17-09-

11090-CR, 17-09-11091-CR and 17-09-11092-CR, we delete the court costs in those

judgments and award $0 in costs. As modified, the judgments in Trial Court Cause

Numbers 17-09-11090-CR, 17-09-11091-CR, and 17-09-11092-CR are affirmed. 9

We affirm the judgment the trial court issued on Henschke’s promotion of child

pornography case, Trial Court Cause Number 17-09-11095-CR. 10

6 Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013). 7 Tex. Code. Crim. Proc. Ann. art. 102.073(b). 8 See Tex. Penal Code Ann. § 43.26(g). 9 See Tex. R. App. P. 43.2(b). 10 Id. 43.2(a). 3 AFFIRMED AS MODIFIED.

_________________________ HOLLIS HORTON Justice

Submitted on November 19, 2019 Opinion Delivered January 15, 2020 Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.