Edgar Fabian Vasquez v. the State of Texas ( 2021 )

AFFIRMED as MODIFIED and Opinion Filed October 11, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00432-CR
No. 05-20-00434-CR
EDGAR FABIAN VASQUEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 366-80176-2018
MEMORANDUM OPINION
Before Justices Osborne, Reichek, and Smith
Opinion by Justice Reichek
Edgar Fabian Vazquez was charged by two-count indictment with continuous
sexual abuse of a child and indecency with a child by sexual contact. A jury
convicted him on both counts and assessed prison sentences of thirty-seven years
and two years, respectively. In a single issue on appeal, appellant challenges the
constitutionality of a portion of a $25 time payment fee imposed against him as court
costs pursuant to section 133.103(a) of the Texas Local Government Code.1
1
Effective January 1, 2020, section 133.103 of the local government code was transferred to article 102.030 of
the Texas Code of Criminal Procedure and amended. See Act of May 23, 2019, 86th Leg., R.S., ch. 1352, §§ 2.54,
After the briefs in this case were filed, the Texas Court of Criminal Appeals
issued its opinion in Dulin v. State, concluding that a trial court’s assessment of the
$25 time-payment fee while an appeal is pending is premature because the pendency
of the appeal suspends the obligation to pay court costs. 620 S.W.3d 129, 133 (Tex.
Crim. App. 2021). The court further concluded the fee should be struck in its entirety
without prejudice to being assessed later if, more than thirty days after issuance of
the appellate mandate, the defendant has failed to pay any fine, court costs, or
restitution he owes. Id.The judgment in Cause No. 05-20-00432-CR imposed court costs in the
amount of $692.32, which the record shows included the time payment fee. The
judgment in Cause No. 05-20-00434-CR did not impose any court costs or fees. See
TEX. CODE CRIM. PROC. ANN. art. 102.073; see Hurlburt v. State, 506 S.W.3d 199,
203 (Tex. App.—Waco 2016, no pet.). The certified bill of costs also reflects the
assessment of the fee.
This Court has the power to modify a judgment to speak the truth when we
have the necessary information to do so. See TEX. R. APP. P. 43.2(b); Bigley v. State,
865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526,
529 (Tex. App.—Dallas 1991, pet. ref’d) (en banc).
4.40(33). The changes apply only to a cost, fee, or fine assessed for an offense committed on or after the effective
date of the Act. Id. § 5.01. Because the offenses in these appeals were committed before January1, 2020, the former
law applies. Id.
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Because the time payment fee was prematurely assessed in Cause No. 05-20-
00432-CR, we modify the judgment to reduce the total amount of court costs by $25
to strike the time payment fee and affirm the judgment as modified. We affirm the
judgment in 05-20-00434-CR.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
200432F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
EDGAR FABIAN VASQUEZ, On Appeal from the 219th Judicial
Appellant District Court, Collin County, Texas
Trial Court Cause No. 366-80176-
No. 05-20-00432-CR V. 2018.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Reichek; Justices Osborne and Smith
participating.
Based on the Court’s opinion of this date, the trial court’s judgment on
Count I is MODIFIED as follows:
To reduce the total amount of court costs by $25 to strike the time
payment fee.
As MODIFIED, the judgment is AFFIRMED.
Judgment entered October 11, 2021
–4–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
EDGAR FABIAN VASQUEZ, On Appeal from the 219th Judicial
Appellant District Court, Collin County, Texas
Trial Court Cause No. 366-80176-
No. 05-20-00434-CR V. 2018.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Reichek; Justices Osborne and Smith
participating.
Based on the Court’s opinion of this date, the trial court’s judgment on
Count II is AFFIRMED.
Judgment entered October 11, 2021
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