Christopher Cemond Frater v. the State of Texas ( 2022 )

NO. 12-21-00061-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CHRISTOPHER CEMOND FRATER, § APPEAL FROM THE 7TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Christopher Cemond Frater appeals his conviction for injury to an elderly individual. In
one issue, Appellant argues that the assessed court costs erroneously include the local
consolidated fee on conviction of a felony in the amount of $105.00. We modify and affirm as
modified.
BACKGROUND
Appellant was charged by indictment with injury to an elderly individual by intentionally
and knowingly causing bodily injury to an individual sixty-five years or older, by striking her
with his hand, a third degree felony. 1 The indictment also included two felony enhancement
paragraphs. Appellant pleaded “not guilty,” and the case proceeded to a jury trial. After the
trial, the jury found Appellant “guilty” of injury to an elderly individual as charged in the
indictment.
At the sentencing hearing, Appellant pleaded “true” to both felony enhancement
paragraphs. After the punishment hearing, the trial court found both felony enhancement
paragraphs to be “true,” and assessed Appellant’s punishment at fifty years of imprisonment. 2
1
See TEX. PENAL CODE ANN. § 22.04(a)(3), (f) (West 2019).
See id. § 12.42(d) (West 2019). If it is shown on the trial of a felony offense other than a state jail felony
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punishable under Section 12.35(a) that the defendant has previously been finally convicted of two felony offenses,
The judgment, bill of costs, and Order to Withdraw Funds show that Appellant was assessed
$251.50 in court costs. This appeal followed.
COURT COSTS
In one issue, Appellant argues that the assessed court costs erroneously included the local
consolidated fee on conviction of a felony in the amount of $105.00, and the judgment must be
modified. The State concedes error and requests this Court modify the judgment and Order to
Withdraw Funds to delete the fee.
Standard of Review and Applicable Law
We review the assessment of court costs 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, and
traditional Jackson v. Virginia evidentiary-sufficiency principles do not apply. Johnson v.
State, 423 S.W.3d 385, 389-90 (Tex. Crim. App. 2014) (citing Jackson v. Virginia, 443 U.S.
307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). Appellant need not have objected at trial to
raise a claim challenging the bases of assessed costs on appeal. Id. at 391. When a trial court
improperly includes amounts in assessed court costs, the proper appellate remedy is to reform the
judgment to delete the improper fees. Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App.
2013). Court costs may not be assessed against a criminal defendant for which a cost is not
expressly provided by law. See TEX. CODE CRIM. PROC. ANN. art. 103.002 (West 2018).
Analysis
The date of Appellant’s charged offense is July 25, 2019. The Local Consolidated Fee on
Conviction of Felony only applies to defendants who are convicted of offenses committed on or
after January 1, 2020. TEX. LOC. GOV’T CODE ANN. § 134.101 (West 2021). Section 134.101
assesses an additional $105.00 fee for persons convicted of felonies. Id. § 134.101(a). That
$105.00 fee is to be allocated to the following specific accounts and funds: the clerk of the court
account, the county records management and preservation fund, the county jury fund, the
courthouse security fund, the county and district court technology fund, and the county specialty
court account. Id. § 134.101(b).
and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction
having become final, on conviction the defendant shall be punished for imprisonment for life, or for any term of not
more than ninety-nine years or less than twenty-five years. See id.
2
The bill of costs in Appellant’s case includes the following costs as enumerated in
Section 134.101: $40.00 for the clerk of the court, $4.00 for the county and district court
technology fund, $1.00 for the county jury fund, $25.00 for the county records management and
preservation, $25.00 for the county specialty court account, and $10.00 for the courthouse
security fund. These fees total $105.00. Pursuant to the statute’s effective date, Appellant is not
obligated to pay the Local Consolidated Fee on Conviction of Felony. See Hayes v. State, No.
12-20-00222-CR, 2021 WL 1418400, at *2 (Tex. App.—Tyler April 14, 2021, no pet. h.) (mem.
op., not designated for publication). Accordingly, we will modify the trial court’s judgment, bill
of costs, and Order to Withdraw Funds to delete these fees. See Sturdivant v. State, 445 S.W.3d
435, 443 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). We sustain Appellant’s sole issue.
DISPOSITION
Having sustained Appellant’s sole issue, we modify the trial court’s judgment, bill of
costs, and Order to Withdraw Funds to reflect that the Appellant’s court costs are $146.50 by
deleting the Local Consolidated Fee on Conviction of Felony. We affirm the judgment as
modified.
JAMES T. WORTHEN
Chief Justice
Opinion delivered February 28, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
FEBRUARY 28, 2022
NO. 12-21-00061-CR
CHRISTOPHER CEMOND FRATER,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-1523-19)
THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, it is the opinion of this court that the judgment, bill of
costs, and Order to Withdraw Funds of the court below should be modified and as modified,
affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the
judgment, bill of costs, and Order to Withdraw Funds of the court below be modified to reflect
that the Appellant’s court costs are $146.50 by deleting the Local Consolidated Fee on
Conviction of Felony; in all other respects the judgment of the trial court is affirmed; and that
this decision be certified to the court below for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.