Desmond Deontae Moss v. the State of Texas ( 2021 )

NO. 12-20-00058-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DESMOND DEONTAE MOSS, § APPEAL FROM THE 7TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Desmond Deontae Moss appeals his conviction for failure to register as a sex offender.
On appeal, Appellant argues that the trial court erred in assessing court costs for the “county
specialty court account” and overcharging for the “courthouse security fund” fee. We modify
and affirm as modified.
BACKGROUND
Appellant was charged by indictment with failure to register as a sex offender in that,
while knowing he was required to register with the local law enforcement authority in the
municipality where he resided or intended to reside for more than seven days, namely Tyler,
Texas, because of a reportable conviction for aggravated sexual assault of a child, he failed to
register with the local law enforcement authority in the municipality, a third degree felony. 1 The
date of the offense was on or about February 13, 2019.
Appellant made an “open” plea of “guilty” to the offense charged in the indictment.
Appellant and his counsel signed various documents in connection with his guilty plea, including
an agreed punishment recommendation, and a stipulation of evidence in which he stipulated, and
judicially confessed, that each and every allegation in the indictment was true and correct, and
1
TEX. CODE CRIM. PROC. ANN. art. 62.102(a)(b)(2) (West 2018).
constituted the evidence in the case. The trial court accepted Appellant’s plea, found the
evidence substantiated his guilty plea, adjudged Appellant guilty of the offense charged in the
indictment, and assessed his punishment at five years of imprisonment. The trial court also
ordered Appellant to pay all court costs in the amount of $311.50. This appeal followed.
COURT COSTS
In one issue, Appellant argues that the trial court erred in assessing court costs for the
“county specialty court account” and overcharging for the “courthouse security fund” fee. The
State concedes error.
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
In his brief, Appellant first complains that the trial court erred in assessing a “county
specialty court account” fee. In the bill of costs, the trial court assessed $25.00 against Appellant
for a “county specialty court account” fee. Prior to June 2019, Article 102.0178(g) provided that
funds received from costs on conviction of an offense under Chapter 49 of the Texas Penal Code
(intoxication offenses) or Chapter 481 of the Texas Health and Safety Code (controlled
substances offenses) would be deposited to the credit of the drug court account to help fund drug
court programs. See TEX. CODE CRIM. PROC. ANN. art. 102.0178(a), (g) (West 2018), repealed
by Act of June 15, 2019, 86th Leg., R.S., ch. 1352, § 1.18, 2019 TEX. GEN. LAWS 1352. In June
2019, the Legislature redesignated the drug court account under Article 102.0178 to the “county
specialty court account” under Section 134.101(b)(6) of the Texas Local Government Code. See
2
TEX. LOCAL GOV’T CODE ANN. § 134.101(b)(6) (West 2021). The new legislation only applies
to offenses committed on or after January 1, 2020. See Act of June 15, 2019, 86th Leg., R.S., ch.
1352, § 5.01, 2019 TEX. GEN. LAWS 1352.
Because Appellant was not convicted of a drug or intoxication offense, the repealed
statute, former Article 102.0178(g), does not apply. Further, because Appellant’s offense
occurred on or before February 13, 2019, the new legislation under Section 134.101(b)(6) also
does not apply to Appellant. Thus, the new “county specialty court account” fee should be
removed from his court costs assessment.
Next, Appellant complains that the bill of costs assesses a $10.00 “courthouse security
fund” fee. Under Article 102.017 of the Texas Code of Criminal Procedure, a defendant
convicted of a felony offense in a district court shall pay a $5.00 security fee as a cost of court.
See TEX. CODE CRIM. PROC. ANN. art. 102.017(a) (West 2018) amended by Act of June 15, 2019,
86th Leg., R.S., ch. 1352, § 1.08, 2019 TEX. GEN. LAWS 1352. We note that Article 102.017 has
been rewritten, but only applies to a cost, fee, or fine on conviction for an offense committed on
or after January 1, 2020. See Act of June 15, 2019, 86th Leg., R.S., ch. 1352, § 5.01, 2019 TEX.
GEN. LAWS 1352 (current version at TEX. CODE CRIM. PROC. ANN. art. 102.017 (West Supp.
2020)). Because Appellant’s offense was committed on February 13, 2019, the new legislation
does not apply. Thus, the “courthouse security fund” fee of $10.00 is erroneous and should be
reduced in the bill of costs to reflect the proper authorized amount of $5.00. Consequently, we
sustain Appellant’s sole issue.
DISPOSITION
Having sustained Appellant’s sole issue, we modify the trial court’s judgment, Order to
Withdraw Funds, and bill of costs to reflect that the amount of court costs is $281.50 by
removing the “county specialty court account” fee and reducing the “courthouse security fund”
fee. We affirm the judgment as modified.
JAMES T. WORTHEN
Chief Justice
Opinion delivered November 3, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
3
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
NOVEMBER 3, 2021
NO. 12-20-00058-CR
DESMOND DEONTAE MOSS,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-1387-19)
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 of the
court below should be modified and as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the
judgment, Order to Withdraw Funds, and bill of costs be modified to reflect that the amount of
court costs is $281.50 by removing the “county specialty court account” fee and reducing the
“courthouse security fund” fee; 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.