Bryan Anthony Hope v. the State of Texas ( 2021 )

NOS. 12-20-00115-CR
12-20-00116-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
BRYAN ANTHONY HOPE, § APPEALS FROM THE 241ST
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Bryan Anthony Hope appeals his convictions for aggravated assault on a public servant
in trial court cause number 241-1419-19 and evading arrest or detention with a vehicle in trial
court cause number 241-1489-19. Appellant raises three issues in two separate briefs
challenging the trial court’s assessment of court costs. We modify and affirm as modified.
BACKGROUND
Appellant was charged by indictment with aggravated assault on a public servant 1 and
evading arrest or detention with a vehicle. 2 Pursuant to a plea bargain agreement with the State,
he pleaded “guilty” to the offenses, and the trial court deferred a finding of guilt and placed him
on community supervision for a term of ten years. Subsequently, the State filed a motion to
adjudicate Appellant’s guilt alleging several violations of his community supervision conditions.
Appellant pleaded “true” to the allegations. Ultimately, the trial court found the allegations
“true,” found Appellant “guilty” of the charges, and assessed his punishment at imprisonment for
1
A first-degree felony. See TEX. PENAL CODE ANN. § 22.02(a), (b)(2)(B) (West 2019).
2
A third-degree felony. See id. § 38.04(a), (b)(2)(A) (West 2016).
thirty years in the aggravated assault case and ten years in the evading case. This appeal
followed.
ADEQUACY OF BILL OF COSTS SUPPORT
In Appellant’s sole issue in trial court cause number 241-1419-19, he argues that the trial
court erred by ordering the withholding of funds from his inmate trust account in an amount not
supported by the bill of costs.
Standard of Review and Applicable Law
The code of criminal procedure requires that a judgment order a defendant to pay court
costs. TEX. CODE CRIM. PROC. ANN. art. 42.16 (West 2018); Johnson v. State, 423 S.W.3d 385,
390 (Tex. Crim. App. 2014). A cost is not payable by the person charged with the cost until a
written bill containing the items of cost is produced, signed by the officer who charged the cost
or the officer who is entitled to receive payment for the cost, and provided to the person charged
with the cost. TEX. CODE CRIM. PROC. ANN. art. 103.001(b) (West 2018). We review the
assessment of court costs on appeal to determine if there is a basis for the cost. Johnson, 423
S.W.3d at 390.
Analysis
The judgment in cause number 241-1419-19 reflects court costs in the amount of
$229.00. The attached order to withdraw funds from Appellant’s inmate trust account states that
“[c]ourt costs, fees and/or fines and/or restitution have been incurred in the amount $229.00;
30.00” and orders that payment be made from the account. The bill of costs lists various fees
totaling $259.00 with a balance of $239.00. The fee list includes a $30.00 fee designated as
“Time Payment Fee 2020.”
Appellant argues that the $30.00 fee named in the withdrawal order is not supported by
the bill of costs and should be deleted. The State contends that the $30.00 fee named in the
withdrawal order represents the time payment fee named in the bill of costs. However, the State
contends the amount of the fee is wrong and should be corrected to $25.00. We agree with the
State that the fee is supported by the bill of costs, but we also agree with Appellant that it must
be deleted.
The pendency of an appeal stops the clock for purposes of the time payment fee. Dulin
v. State, 620 S.W.3d 129, 133 (Tex. Crim. App. 2021). Consequently, the assessment of the time
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payment fee in each of Appellant’s cases is premature, and the fees should be struck in their
entirety, without prejudice to a time payment fee being assessed later if, more than thirty days
after the issuance of the appellate mandate, Appellant has failed to completely pay any fine,
court costs, or restitution he owes. See id. We sustain Appellant’s sole issue in cause number
241-1419-19.
DUPLICATE COURT COST ASSESSMENT
In Appellant’s first issue in trial court cause number 241-1489-19, he argues that the trial
court erred by assessing court costs twice in a single criminal action. The State concedes this
error.
The code of criminal procedure provides as follows:
(a) 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.
(b) In a criminal action described by Subsection (a), each court cost or fee the amount of which
is determined according to the category of offense must be assessed using the highest category
of offense that is possible based on the defendant’s convictions.
TEX. CODE CRIM. PROC. ANN. art. 102.073(a), (b) (West 2018). In this context, we construe the
phrase “[i]n a single criminal action” to mean in a single trial or plea proceeding. Hurlburt v.
State, 506 S.W.3d 199, 203 (Tex. App.—Waco 2016, no pet.).
The record in this case shows that the allegations and evidence of both offenses were
presented in a single plea proceeding, or “criminal action.” See id. Therefore, the trial court was
authorized to assess each court cost and fee only once against Appellant. See TEX. CODE CRIM.
PROC. ANN. art. 102.073(a). However, the judgment in cause number 241-1419-19 shows a court
cost assessment of $229.00, and the judgment in cause number 241-1489-19 shows a court cost
assessment of $339.00 and $30.00. The two bills of costs list many of the same fees, which total
$229.00 in cause number 241-1419-19 and $234.00 in cause number 241-1489-19. 3 We
conclude that the trial court erred by assessing each of these fees twice against Appellant. See id.Accordingly, we sustain Appellant’s first issue in cause number 241-1489-19.
The $5.00 difference in the amounts results from the fee designated in both bills as “Arrest Fee – Lindale
3
PD $5.00” being charged in the incorrect amount of $10.00 in cause number 241-1489-19.
3
We have the authority to correct a trial court’s judgment to make the record speak the
truth when we have the necessary data and information. Asberry v. State, 813 S.W.2d 526, 529
(Tex. App.—Dallas 1991, pet. ref’d). Because we have the necessary data and information to
correct the amount of court costs in this case, we conclude that the judgment and withdrawal
order in trial court cause number 241-1489-19 should be modified to remove the duplicated court
cost amount of $234.00. See id.; TEX. R. APP. P. 43.2(b).
LOCAL CONSOLIDATED FEE
In Appellant’s second issue in trial court cause number 241-1489-19, he argues that the
trial court improperly assessed several fees in addition to those duplicated in cause number 241-
1419-19. The State recognizes that together the fees constitute the Local Consolidated Fee on
Conviction of Felony and concedes they were assessed in error.
The Local Consolidated Fee on Conviction of Felony applies only to defendants who are
convicted of offenses committed on or after January 1, 2020. See Hayes v. State, No. 12-20-
00222-CR, 2021 WL 1418400, at *2 (Tex. App.—Tyler Apr. 14, 2021, no pet. h.) (mem. op., not
designated for publication) (citing TEX. LOC. GOV’T CODE ANN. § 134.101 (West Supp. 2021)).
Section 134.101 assesses an additional $105 fee for a person who is convicted of a felony. See
TEX. LOC. GOV’T CODE ANN. § 134.101(a). That 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. See id. § 134.101(b).
In the instant case, the commission date for the offense is June 29, 2019. The certified
bill of costs includes the following costs listed in Section 134.101: $40.00 Clerk of the Court;
$4.00 County and District Court Technology Fund; $1.00 County Jury Fund; $25.00 County
Records Management and Preservation; $25.00 County Specialty Court Account; $10.00
Courthouse Security Fund. The sum of these costs is $105.00.
Because the offense in this case was committed before January 1, 2020, Appellant is not
obligated to pay the “Local Consolidated Fee on Conviction of Felony.” See Hayes, 2021 WL
1418400, at *2. Accordingly, we conclude that the judgment in trial court cause number 241-
1489-19 should be modified to remove those costs in the amount of $105.00. See TEX. R. APP. P.
4
43.2(b); Asberry, 813 S.W.2d at 529. We sustain Appellant’s second issue in cause number 241-
1489-19.
DISPOSITION
Having sustained Appellant’s sole issue in trial court cause number 241-1419-19 and his
first and second issues in trial court cause number 241-1489-19, we modify the trial court’s
judgment and withdrawal order in cause number 241-1419-19 to reflect that the amount of court
costs is $229.00, modify the trial court’s judgment and withdrawal order in cause number 241-
1489-19 to reflect that the amount of court costs is $0.00, and modify the bill of costs in each
case to remove the time payment fee, without prejudice to it being assessed later if, more than
thirty days after the issuance of our mandate, Appellant fails to completely pay the fine, court
costs, or restitution he owes. We affirm the judgments as modified.
JAMES T. WORTHEN
Chief Justice
Opinion delivered October 20, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
5
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER 20, 2021
NO. 12-20-00115-CR
BRYAN ANTHONY HOPE,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 241st District Court
of Smith County, Texas (Tr.Ct.No. 241-1419-19)
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 and
withdrawal order of the court below should be modified and as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
and withdrawal order of the court below be modified to reflect that the amount of court costs is
$229.00; 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.
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
OCTOBER , 2021
NO. 12-20-00116-CR
BRYAN ANTHONY HOPE,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 241st District Court
of Smith County, Texas (Tr.Ct.No. 241-1489-19)
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 and
withdrawal order of the court below should be modified and as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
and withdrawal order of the court below be modified to reflect that the amount of court costs is
$0.00; 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.