Andrew Michael Whitt v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 8, 2024
• Docket: 02-24-00007-CR
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________

No. 02-24-00006-CR No. 02-24-00007-CR ___________________________

ANDREW MICHAEL WHITT, Appellant

V.

THE STATE OF TEXAS

On Appeal from the 485th District Court Tarrant County, Texas Trial Court Nos. 1675587, 1676866

Before Sudderth, C.J.; Birdwell and Bassel, JJ. Memorandum Opinion by Chief Justice Sudderth MEMORANDUM OPINION

After pleading guilty without the benefit of a plea bargain, appellant Andrew

Michael Whitt was convicted in trial-court cause number 1675587 of three counts of

third-degree-felony possession of child pornography and in trial-court cause number

1676866 of four counts of sexual assault of a child and three counts of indecency with

a child. After receiving a presentence investigation report and hearing evidence, the

trial court assessed Whitt’s punishment at eight years’ confinement for each of the

possession counts and fifteen years’ confinement for each of the remaining counts.

The trial court sentenced Whitt accordingly. On appeal, Whitt challenges parts of

only two of the judgments.

In his first issue, Whitt contends that the trial court unlawfully assessed

duplicate costs because although all of the cases were tried together, the count-one

judgments in each trial-court cause number imposed $290 in court costs and

reimbursement fees of $10.1 The State agrees and so do we. “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.” Tex. Code Crim. Proc. Ann. art. 102.073(a); Johnson v. State,

Nos. 02-23-00090-CR, 02-23-00091-CR, 02-23-00092-CR, 02-23-00093-CR, 2024 WL

1 Whitt does not challenge the evidence supporting a single imposition of $290 in court costs or a single $10 reimbursement fee.

2 1318238, at *3 (Tex. App.—Fort Worth Mar. 28, 2024, pet. ref’d) (mem. op., not

designated for publication). We therefore sustain Whitt’s first issue.

In his second issue, Whitt challenges the $100 fine assessed in the count-one

judgment for each trial court cause number because the trial court did not orally

pronounce a fine at trial. Again, the State concedes and we agree. The fines should

not have been included in the count-one judgments. See Anastassov v. State, 664

S.W.3d 815, 820 (Tex. Crim. App. 2022); Ette v. State, 559 S.W.3d 511, 513 (Tex. Crim.

App. 2018). We therefore sustain Whitt’s second issue.

Having sustained Whitt’s two issues, we modify the trial court’s judgments as

follows: (1) we vacate the $100 fine in the count-one judgment in trial court cause

number 1675587 and in the count-one judgment in trial court cause number 1676866,

and (2) we vacate the $290 costs and $10 reimbursement fee in the count-one

judgment for trial court cause number 1675587. See Tex. Code Crim. Proc. Ann. art.

102.073(b) (“In a criminal action described by Subsection (a), each court cost or

fee . . . must be assessed using the highest category of offense that is possible based

on the defendant’s convictions.”); Santoro v. State, Nos. 02-18-00039-CR, 02-18-00040-

CR, 2018 WL 3153564, at *2 (Tex. App.—Fort Worth June 28, 2018, no pet.) (mem.

op., not designated for publication). As modified, we affirm those two judgments.

/s/ Bonnie Sudderth

Bonnie Sudderth Chief Justice

3 Do Not Publish Tex. R. App. P. 47.2(b)

Delivered: August 8, 2024