Simmons, D'Warren Lamar

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1264-19
D’WARREN LAMAR SIMMONS, Appellant
V.
THE STATE OF TEXAS
ON STATE’S AND APPELLANT’S PETITIONS
FOR DISCRETIONARY REVIEW FROM
THE WACO COURT OF APPEALS
MCLENNAN COUNTY
Per curiam. YEARY, J., filed a dissenting opinion in which SLAUGHTER, J.,
joined.
OPINION
Appellant was convicted of assault family violence with a prior conviction for
assault family violence and sentenced to 75 years in prison. In the bill of costs, the trial
court assessed Appellant a $25 time payment fee. See TEX. LOCAL GOV’T CODE §
D’WARREN LAMAR SIMMONS - 2
133.103. On appeal, the Court of Appeals struck a portion of that fee as being
unconstitutional. Simmons v. State, No. 10-18-00269-CR (Tex. App. – Waco Nov. 27,
2019).
The State has filed a petition for discretionary review arguing that the time
payment fee was prematurely assessed. We recently handed down our opinion in Dulin v.
State, Nos. PD-0856-19 & PD-0857-19, 2021 Tex. Crim. App. LEXIS 273 (Tex. Crim.
App. Mar. 31, 2021), in which we held that the time payment fee was assessed
prematurely because the pendency of appeal suspends the obligation to pay court costs.
Accordingly, we grant ground one of the State’s petition for discretionary review,
vacate the judgment of the Court of Appeals, and remand this case to the Court of
Appeals for proceedings consistent with this opinion. The State’s other ground is refused.
Appellant’s petition is also refused.
DATE DELIVERED: May 12, 2021
DO NOT PUBLISH