Marshall Cody Gagnon v. the State of Texas

Opinion

Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

Nos. 04-25-00607-CR, 04-25-00608-CR, 04-25-00609-CR & 04-25-00611-CR

Marshall Cody GAGNON,

Appellant

v.

The STATE of Texas,

Appellee

From the 175th Judicial District Court, Bexar County, Texas Trial Court Nos. 2025-CR-005677, 2020-CR-9246, 2025-CR-005689 & 2022-CR-3086W Honorable Catherine Torres-Stahl, Judge Presiding

Opinion by: Lori Massey Brissette, Justice

Sitting: Irene Rios, Justice Lori Massey Brissette, Justice H. Todd McCray, Justice

Delivered and Filed: August 19, 2026 AFFIRMED AS MODIFIED In this appeal, appellant Marshall Cody Gagnon challenges the trial court’s imposition of costs for six convictions where all sentences were imposed during the same hearing. Based on the law and the record, we modify the trial court’s judgments to delete costs in all but one of them and affirm the judgments as modified.

BACKGROUND

On August 19, 2025, Gagnon pleaded nolo contendere to:

• Third-degree felony possession with intent to deliver less than one gram of fentanyl (TEX.

HEALTH & SAFETY CODE § 481.1123(b)) 1 0F

• First-degree felony possession with intent to deliver LSD of 80 or more but fewer than 4,000 abuse units (TEX. HEALTH & SAFETY CODE § 481.1121(b)(3)) 2 1F

• First-degree felony possession with intent to deliver Psilocin of four grams or more but less than 400 grams (TEX. HEALTH & SAFETY CODE § 481.113(d)) 3 2F

• First-degree felony possession with intent to deliver MDMA of four grams or more but less than 400 grams (TEX. HEALTH & SAFETY CODE § 481.113(d)) 4 3F

In connection with the foregoing charges, Gagnon also pleaded true to violations of the conditions of his then-existing deferred adjudication community supervision. As a result, Gagnon was adjudicated guilty during the same August 19 hearing for:

• First-degree felony possession with intent to deliver heroin of four grams or more but less than 200 grams (TEX. HEALTH & SAFETY CODE § 481.112(d) 5 4F

• First-degree felony possession with intent to deliver LSD of 80 or more but fewer than 4,000 abuse units (TEX. HEALTH & SAFETY CODE § 481.1121(b)(3) 6 5F

The court then imposed court costs on Gagnon for each and every offense. This appeal followed.

On appeal, Gagnon contends the trial court erred when it imposed costs in connection with each of the four convictions and for both of the offenses which adjudicated him guilty. We agree.

1 Cause no. 2025CR005677 (Count 1)—Appellate cause no. 04-25-00607-CR.

2 Cause no. 2025CR005689 (Count 1)—Appellate cause no. 04-25-00609-CR.

3 Cause no. 2025CR005689 (Count 3)—Appellate cause no. 04-25-00609-CR.

4 Cause no. 2025CR005689 (Count 5)—Appellate cause no. 04-25-00609-CR.

5 Cause no. 2022CR3086W (Count 1)—Appellate cause no. 04-25-00611-CR.

6 Cause no. 2020CR9246 (Count 1)—Appellate cause no. 04-25-00608-CR.

3

TEXAS CODE OF CRIMINAL PROCEDURE 102.073 We review the assessment of court costs on appeal to determine if there is a basis for the cost, not if there was sufficient evidence offered at trial to prove each assessment of costs. Pruitt v. State, 646 S.W.3d 879, 883 (Tex. App.—Amarillo 2022, no pet.). Whether there is a legal basis to assess costs is a question of statutory law. See id. If punishment is something other than a fine, the judgment must specify it and “shall also adjudge the costs against the defendant.” TEX. CODE CRIM. PRO. art. 42.16. But “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 . . . only once against the defendant.” TEX. CODE CRIM. PRO. art. 102.073(a). A single criminal action refers to “instances where ‘allegations and evidence of more than one offense . . . are presented in a single trial or plea proceeding.” Pruitt v. State, 646 S.W.3d 879, 884 (Tex. App.— Amarillo 2022, no pet.) (quoting Hurlburt v. State, 506 S.W.3d 199, 203 (Tex. App.—Waco 2016, no pet.)).

First, the State concedes the trial court erred when it imposed duplicative costs relating to the four offenses to which Gagnon pleaded nolo contendere in the single criminal action. In such circumstances, we maintain the costs imposed in connection with “the highest category of offense that is possible based on the defendant’s convictions.” Id. art. 102.073(b). If the convictions are for the same category of offense and the costs are the same, costs should be based on the lowest trial court cause number. Pruitt, 646 S.W.3d at 884 (citing cases). Here, the highest category of offense is the first-degree felony, and all of the costs are the same. Accordingly, we affirm court costs imposed in trial court cause no. 2025CR005677, modify the judgments in trial court cause no. 2025CR005689 to delete the costs, and strike the single bill of costs in trial court cause no. 2025CR005689 in its entirety.

4

Gagnon and the State disagree, however, as to whether it was proper for the court to impose costs in connection with the two matters for which Gagnon was adjudicated guilty that same day. Gagnon contends that since the costs were all imposed during a single proceeding, they were all a part of a “single criminal action” under article 102.073(a) and he should not be ordered to pay costs in more than one of the six matters, the four he was convicted on and the two he was adjudicated guilty based on prior deferred adjudications. The State contends that for the deferred adjudication cases in which Gagnon was adjudicated guilty, he was actually “convicted” for purposes of article 102.073(a) when the deferred adjudication was imposed on September 19, 2022. Thus, the State urges that those matters were not part of the same “single criminal action” as his four other pleas of nolo contendere. See Pruitt, 646 S.W.3d at 884 (holding for purposes of article 102.073(a), appellant was “convicted” when deferred adjudication imposed years earlier).

To determine this issue, of whether Gagnon was convicted on all six matters as part of a “single criminal action,” we must construe article 102.073. We construe the meaning of the article de novo. See, e.g., Tates v. State, 721 S.W.3d 268, 273 (Tex. Crim. App. 2025). In construing it, our duty is to give effect to the legislative intent. See id. at 274. We focus on the plain text and attempt to discern the fair, objective meaning of it at the time of its enactment. See id. at 274. We presume each word, phrase, clause, and sentence has been used for a purpose and that each should be given effect if reasonably possible. See id. at 273–74. We do not restrict our focus to the sole provision at issue; we look at other related statutory provisions as well to harmonize the provision with similar provisions to avoid giving conviction a definition that contradicts the rest of the statutory scheme. Watkins v. State, 619 S.W.3d 265, 272 (Tex. Crim. App. 2021).

As the State suggests, in Pruitt, the court concluded that a defendant who is placed on deferred adjudication is “convicted” for purposes of article 102.073 when he is placed on deferred

5

adjudication, not when he is later adjudicated guilty. 646 S.W.3d at 885. As the court explained, many articles in Chapter 102 of the Texas Code of Criminal Procedure treat the date of conviction

as the date of deferred adjudication. 7 Id. As a result, we presume the Legislature intended a 6F

consistent definition across Chapter 102, including for article 102.073. See 646 S.W.3d at 885. 8 7F

Therefore, we agree that Gagnon was convicted in the matters for which he was placed on deferred adjudication in 2022, not in 2025. See TEX. CODE CRIM. PROC. § 102.073(a); Pruitt, 646 S.W.3d at 884; Hurlburt, 506 S.W.3d at 203.

Accordingly, we modify the judgment adjudicating Gagnon guilty in trial court cause no.

2022CR3086W to delete the costs of $290. 9 See Pruitt, 646 S.W.3d at 884.

8F

CONCLUSION

We affirm the costs in trial court cause no. 2025CR005677 (Count 1) (appellate cause no.

04-25-00607-CR) and modify the judgments in trial court cause no. 2025CR005689 (Count 1),

7 A review of the Chapter 102 cost provisions cited in Pruitt show that while nearly all of those itemized costs were not in effect at the time of the crimes for which Gagnon received deferred adjudication, several were. See TEX. CODE CRIM. PRO. art. 102.0171(b) (“In this article, a person is considered convicted if: . . . (2) the person receives community supervision, including deferred adjudication”); Acts 2021, 87th Leg., ch. 919 (S.B. 1923), §§ 4, 21(1), eff. Sept. 1, 2021 (with respect to Texas Code of Criminal Procedure article 102.011—providing for costs for service of peace officers—repealing subsection (j) which explained conviction had same definition as conviction in Local Government Code § 133.101 which provides person is considered convicted if the person received deferred adjudication of); Acts 2021, 87th Leg., ch. 919 (S.B. 1923), §§ 4, 21(1), eff. Sept. 1, 2021 (with respect to Texas Code of Criminal Procedure article 102.011—providing for costs for service of peace officers—repealing subsection (j) which explained conviction had same definition as conviction in Local Government Code § 133.101 which provides person is considered convicted if the person received deferred adjudication of); Id. § 21(2) (with respect to Texas Code of Criminal Procedure article 102.014—providing for costs for the child safety fund—repealing subsection (j) which explained conviction had same definition as conviction in Local Government Code § 133.101 which provides person is considered convicted if the person received deferred adjudication of); Pruitt, 646 S.W.3d at 885 n.2 (citing Chapter 102 provisions); see also TEX. LOC. GOV’T CODE §§ 133.101(b) & 133.102(a) (providing person convicted of felony shall pay $185 in court costs, and explaining conviction includes deferred adjudication). 8 The State also cites Texas Code of Criminal Procedure article 101.004, which provides that a person is considered to be convicted if they receive deferred adjudication. See TEX. CODE CRIM. PROC. art. 101.004(2). But as the State also observes and as noted in Pruitt, that article does not apply to crimes committed before September 1, 2021 like the ones for which Gagnon received deferred adjudication here. See Pruitt, 646 S.W.3d at 884–85. We express no opinion as to whether, after September 1, 2021, Article 101.004 would establish that the single criminal action in which a defendant is convicted would be at the time of the deferred adjudication hearing. See TEX. R. APP. P. 47.1. 9 No bill of costs was prepared in connection with the judgment.

6

trial court cause no. 2025CR005689 (Count 3), and trial court cause no. 2025CR005689 (Count 5) to delete the costs. Furthermore, we strike the bill of costs in trial court cause no. 2025CR005689 in its entirety.

We also affirm the costs in trial court cause no. 2020CR9246 and modify the judgment adjudicating Gagnon guilty in trial court cause no. 2022CR3086W to delete the costs of $290.

Lori Massey Brissette, Justice DO NOT PUBLISH