Jeffery Thomas White v. the State of Texas ( 2021 )

NO. 12-20-00024-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JEFFERY THOMAS WHITE, § APPEAL FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
After revoking his deferred adjudication community supervision, the trial court found
Jeffery Thomas White “guilty” of obstruction or retaliation and sentenced him to imprisonment
for ten years. He appealed, raising four issues. In response to Appellant’s fourth issue on
original submission, we held that a portion of the court costs labeled “time payment” fee was
unconstitutional and modified the trial court’s judgment to delete the erroneously assessed costs.
See White v. State, No. 12-20-00024-CR, 2020 WL 7042605, at *5–6 (Tex. App.–Tyler, Nov.
30, 2020, pet. granted) (mem. op, not designated for publication). We affirmed the remainder of
the trial court’s judgment as modified. Id. at *6. The State and Appellant filed petitions for
review. On May 12, 2021, the court of criminal appeals issued a per curiam opinion, in which it
refused both parties’ petitions for review but granted review on its own motion on the issue of
whether the “time payment” fee should be struck as prematurely assessed in light of the court’s
opinion in Dulin v. State, 620 S.W.3d 129 (Tex. Crim. App. 2021). See White v. State, No.
PD 1256-20, 2021 WL 1940565, at *1 (Tex. Crim. App. May 12, 2021) (per curiam). In reliance
on its opinion in Dulin, the court vacated this court’s judgment and remanded the cause to us for
further consideration. See id. We affirm.
BACKGROUND
Appellant was charged by indictment with obstruction or retaliation and pleaded “guilty.”
The trial court deferred finding Appellant “guilty” and placed him on community supervision for
five years.
On December 12, 2019, the State filed a motion to proceed to final adjudication, in which
it alleged that Appellant violated a condition of his community supervision by failing to report to
the Smith County Community Supervision and Corrections Department “after Court or upon
release from [the] Smith County Jail.” Subsequently, the trial court conducted a hearing on the
State’s motion, and Appellant pleaded “not true” to the allegation therein. Ultimately, the trial
court found the alleged violation in the State’s motion to be “true,” adjudicated Appellant
“guilty” of obstruction or retaliation, revoked Appellant’s community supervision, and sentenced
Appellant to imprisonment for ten years. This appeal followed.
TIME PAYMENT FEE
In his sole issue on remand, Appellant argues that the trial court erred in assessing an
unconstitutional “time payment” fee previously authorized by Texas Local Government Code,
Section 133.103 in its judgment. 1
In Dulin, the court of criminal appeals held that the pendency of an appeal “stops the
clock” for the purposes of the time payment fee. Dulin, 620 S.W.3d at 133. Consequently, any
assessment of the time payment fee in Appellant’s case would be premature and should be struck
in its entirety, without prejudice to its being assessed later if, more than thirty days after the
issuance of the appellate mandate, the defendant has failed completely to pay any fine, court
costs, or restitution that he owes. Id.
Here, the judgment of conviction reflects that the trial court assessed $229.00 in court
costs. The judgment includes a document identified as “Attachment A Order to Withdraw
1
The Texas Legislature passed legislation, effective January 1, 2020, that transfers Texas Local
Government Code, Section 133.103 to Texas Code of Criminal Procedure, Article 102.030 and revises the statute to
provide that all of the fees collected under the section are “to be used for the purpose of improving the collection of
outstanding court costs, fines, reimbursement fees, or restitution or improving the efficiency of the administration of
justice in the county or municipality.” See Act of May 23, 2019, 86th Leg., R.S., S.B. 346, § 2.54, 2019 Tex. Sess.
Law Serv. Ch. 1352. The changes apply only to a cost, fee, or fine assessed on a conviction for an offense
committed on or after the effective date of the Act. Id. § 5.01. Because the offense in this case was committed
before January 1, 2020, the former law applies. See Ovalle v. State, 592 S.W.3d 615, 617 n.1 (Tex. App.–Dallas
2020), judgment vacated on other grounds, Ovalle v. State, No. PD-0127-20, 2021 WL 1938672, at *1 (Tex. Crim.
App. May 12, 2021) (per curiam).
2
Funds,” which states that Appellant incurred “[c]ourt costs, fees and/or fines and/or restitution”
in the amount of $229.00. The certified bill of costs itemizes the court costs imposed and
includes a time payment fee of $15.00. 2 The sum of the itemized costs listed in the bill of costs
is $244.00, which exceeds the costs assessed in the trial court’s judgment by $15.00. Below the
list of itemized costs is a statement that an additional time payment fee of $15.00 “will be
assessed if any part of a fine, court costs, or restitution is paid on or after the 31st day after the
date the judgment assessing the fine, court costs, or restitution is entered.”
The proper remedy when a trial court erroneously includes amounts as court costs
ordinarily is to modify the judgment to delete erroneous amounts. See Sturdivant v. State, 445
S.W.3d 435, 443 (Tex. App.–Houston [1st Dist.] 2014, pet. ref’d). However, in this case, even
though the time payment fee is listed in the itemized bill of costs, its addition therein results in
the sum of the itemized costs’ exceeding the court costs the trial court, in fact, assessed in its
judgment by the amount of the time payment fee. Accordingly, since it does not appear that the
trial court assessed the time payment fee in its judgment, we instead will modify the bill of costs
to remove the time payment fee to reflect the appropriate itemization of court costs. See Foley v.
State, No. 12-20-00017-CR, 2021 WL 4898457, at *6 (Tex. App.–Tyler Oct. 20, 2021, no pet.
h.) (mem. op., not designated for publication) (modifying bill of costs by deleting time payment
fee). Appellant’s sole issue on remand is sustained. 3
DISPOSITION
Having sustained Appellant’s sole issue on remand, we modify the bill of costs by
deleting the time payment fee, without prejudice to its being assessed later, if more than thirty
days after the issuance of our mandate, Appellant fails to completely pay his court costs. We
further modify the bill of costs to reflect that the sum of the itemized costs is $229.00. In all
other respects, we affirm the trial court’s judgment.
2
But see TEX. LOC. GOV’T CODE ANN. § 133.103(c) (West 2008) (treasurer shall deposit ten percent of fees
collected under this section in general fund of county or municipality for purpose of improving efficiency of
administration of justice in county or municipality).
3
Because the fee assessment Appellant challenges in his first issue is premature, we do not consider the
constitutionality of the fee. See TEX. R. APP. P. 47.1.
3
GREG NEELEY
Justice
Opinion delivered December 21, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
4
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
DECEMBER 21, 2021
NO. 12-20-00024-CR
JEFFERY THOMAS WHITE,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-1257-19)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment. However, because the bill of costs prematurely listed a cost not yet assessed by the
trial court, it further is the opinion of this court that the bill of costs should be modified by
deleting the time payment fee, without prejudice to its being assessed later, if more than thirty
days after the issuance of our mandate, Appellant fails to completely pay his court costs, and by
reflecting that the sum of the itemized costs is $229.00.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.