## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 17

- 00184

- CR

MIRANDA RENEA KELSO, Appellant
V. THE STATE OF TEXAS, Appellee

On Appeal from the 40th District Court Ellis County, Texas Trial Court No. 41162CR

Before Morriss, C.J., Moseley and Burgess, JJ. Memorandum Opinion by Justice Burgess2 

### MEMORANDUM OPINION
Miranda Renea Kelso appeals from her conviction by a jury of indecency with a child by exposure and her resulting sentence of two years’ imprisonment. 1 In companion ca u se number
06

- 17

- 000183

- CR, she also appeals from a conviction of indecency with a child by contact. Kelso has filed a sin gle brief raising six issues common to all of her appeals , including whether the trial court erroneously (1) rejected her request to include an Article 38.23 instruction in the jury charge, (2) rejected her request to instruct the jury on the defenses of d uress and necessity, (3) denied her an Article 38.23 hearing, (4) denied her motion to suppress video recording s depicting the offense, (5) admitted communications over objections of spousal privilege and relevance, and (6) excluded evidence demonstrating that a witness had bias and a motive to testify against her. We addressed these issues in detail in our opinion of this date on Kelso’s appeal in cause number 06

- 17

- 0 0183

- CR. For the reasons stated therein, we likewise overrule these points of error here

. However, Kelso has raised a seventh point of error pertinent only to this appeal. The judgment in this case and in companion ca u se number 06

- 17

- 00183

- CR both ordered Kelso to pay $413.00 in court costs. Because both cases were tried together, Kelso a rgues that the imposition of court costs in both cases violated Article 102.073 of the Texas Code of Criminal Procedure, which provides, “ I n a single criminal action in which a defendant is convicted of two or more offenses or of multiple counts of the sam e offense, the court may assess each court cost or fee only

1 Ori ginally appealed to the T enth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See T EX
. G OV ’ T C ODE A NN . § 73 .001 (West 2013). We follow the precedent of the T enth Court of Appeals in deciding this case. See T EX
. R. A PP
. P. 41.3.3 once against the defendant.” T EX
. C ODE C RIM
. P ROC
. A NN
. art. 102.073(a) (West 2018). The State concedes the error. The statute does not define the phrase “a single criminal action,” but the Wa co Court of Appeals has determined that “the phrase [is] to be interpreted as ‘allegations and evidence of more than one offense . . . [which] are presented in a single trial or plea proceeding.’” Hurlburt v. State , 506 S.W.3d 199, 203 (Tex. App.

— Waco 201 6, no pet.) (quoting Ex parte Pharr , 897 S.W.2d 795, 796 (Tex. Crim. App. 1995)). Therefore, since the “allegations and evidence of more than one offense were presented in a single trial or plea proceeding,” Waco precedent requires the conclusion that “th e trial court erred in assessing costs in each conviction.” Id. at 203

– 04 (citing
T EX
. C ODE C RIM
. P ROC
. A NN
. art. 102.073(a) (West 2006) ). The Texas Code of Criminal Procedure further indicates that the costs should be assessed in the case containing the “highest category of offense.” T EX
. C ODE C RIM
. P ROC
. A NN
. art. 102.073(b) (West 2018) . Because the offense in this case was a third

- degree felony, and the offense in companion case number 06

- 17

- 00183

- CR was a second

- degree felony, we must delete the court costs assessed in this case. We sustain Kelso’s seventh point of error

. We modi fy the trial court’s judgment by delet ing the assessment of court costs in this case only. As modified, we affirm the trial court’s judgment.

Ralph K. Burgess Justice Date Submitted: September 19, 2018 Date Decided: September 28 , 2018 Do Not Publish