Timothy Donham v. the State of Texas ( 2021 )

AFFIRM AS MODIFIED; Opinion Filed June 29, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00764-CR
TIMOTHY DONHAM, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F19-40292-R
MEMORANDUM OPINION ON REMAND
Before Justices Schenck, Molberg, and Nowell
Opinion by Justice Schenck
The case is before us is on remand from the Texas Court of Criminal Appeals.
In our original opinion, we held a portion of a $25 time payment fee assessed as part
of the court costs under section 133.103 of the Local Government Code was facially
unconstitutional. The State filed a petition for discretionary review with the court
of criminal appeals. The court of criminal appeals recently handed down its opinion
in Dulin v. State, 620 S.W.3d 129 (Tex. Crim. App. 2021), in which the court held
that the time payment fee was assessed prematurely because the pendency of appeal
suspends the obligation to pay court costs. Accordingly, the court refused the State’s
petition and instead granted review on its own motion of the following restated
question: Should the “Time Payment Fee” be struck as prematurely assessed? The
court then vacated our judgment and remanded this case to us for consideration of
that question in light of Dulin.
We affirm the judgment as modified below. Because all issues are settled in
law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
In October 2018, appellant met the complainant on a dating website, and he
soon thereafter moved in with her. By January 2019, the complainant decided to
end the relationship and sought to evict appellant. Appellant was upset by this turn
of events and sent threatening messages to the complainant over several days. The
day after the complainant ended the relationship, she discovered her car’s windshield
was cracked. She suspected appellant. When she confronted appellant, he denied
breaking her windshield and told her that, “if it were him, [her] car would be on fire.”
On the night of January 29, the complainant woke up to learn both her car and her
mother’s car were on fire.
In March 2019, appellant was charged by separate indictments for arson and
stalking. Appellant judicially confessed and entered open pleas of guilty to each
charge. The trial court assessed punishment at six years’ confinement in each case.
Appellant timely appealed.
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DISCUSSION
As with our original opinion, the issue is whether a portion of the time
payment fee is facially unconstitutional.
Appellant contends a portion of a $25 time payment fee assessed as part of
the court costs in the arson case under section 133.103 of the Local Government
Code is facially unconstitutional. Specifically, he argues that the fees collected
under subsections (b) and (d) were not collected for a legitimate criminal purpose
and therefore violate the separation of powers provision of the Texas Constitution.
He asks that we modify the judgment to delete $22.50 of the court costs assessed in
the arson case.
The State first responds that appellant has waived this complaint by failing to
object below. We disagree. Although appellant did not object to the costs in the
trial court, the costs were not imposed in open court and the written judgment does
not contain an itemization of the imposed costs. Thus, appellant may challenge the
constitutionality of the costs for the first time on appeal. See Johnson v. State, 537
S.W.3d 929, 929 (Tex. Crim. App. 2017) (per curiam).
As to the merits of his complaint, we now address the question posed by the
criminal court of appeals: whether the time payment fee should be struck as
prematurely assessed. Section 133.103 provides for a time payment fee to be
assessed if the defendant pays some or all of his fine, court costs, or restitution on or
after the 31st day after the date on which a judgment is entered assessing the fine,
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court costs, or restitution. See TEX. LOC. GOV’T CODE ANN. § 133.103. Appellant
filed his notice of appeal the same day on June 24, 2019. The record reflects
appellant was assessed a time payment fee on July 25, 2019. As noted by the court
of criminal appeals, the pendency of an appeal stops the clock for purposes of the
time payment fee. See Dulin, 620 S.W.3d at 133. Consequently, the assessment of
the time payment fees in appellant’s case is premature, and the fees should be struck
in their entirety, without prejudice to them being later assessed if, more than 30 days
after the issuance of the appellate mandate, the defendant has failed to completely
pay any fine, court costs, or restitution that he owes. See id.
We have the authority to modify the trial court’s judgment to make the record
speak the truth. TEX. R. APP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex.
Crim. App. 1991). Accordingly, we modify the trial court’s judgment to reduce the
total amount of court costs by $25 to strike the time payment fee.
CONCLUSION
As modified, we affirm the trial court’s judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
DO NOT PUBLISH
Tex. R. App. P. 47
191764F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
TIMOTHY DONHAM, Appellant On Appeal from the 265th Judicial
District Court, Dallas County, Texas
No. 05-19-00764-CR V. Trial Court Cause No. F19-40292-R.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Schenck. Justices Molberg and
Nowell participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
to reduce the total amount of court costs by $25 to strike the time
payment fee.
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 29th day of June, 2021.
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