Louis Dewayne Shepherd v. State

NO. 12-20-00160-CR IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

LOUIS DEWAYNE SHEPHERD, § APPEAL FROM THE 241ST APPELLANT V. § JUDICIAL DISTRICT COURT THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Louis Dewayne Shepherd appeals the trial court’s order revoking his community supervision. In one issue, he contends the trial court erred by imposing unconstitutional court costs. We modify and affirm as modified.

BACKGROUND

On November 8, 2018, Appellant was indicted for the second-degree felony offense of aggravated assault with a deadly weapon. 1 Appellant entered into a plea agreement with the State wherein he would plead “guilty” to the indictment in exchange for the State’s recommendation of eight years deferred adjudication community supervision. At the plea hearing, the trial court accepted Appellant’s plea of “guilty” and followed the State’s punishment recommendation, placing Appellant on eight years deferred adjudication community supervision with certain terms and conditions.

On March 30, 2020, the State filed a motion to adjudicate Appellant’s guilt, alleging that Appellant violated his community supervision by possessing and using cocaine and marijuana. At the hearing on the motion to adjudicate guilt, Appellant entered pleas of “true” to the allegations that he possessed and used cocaine and marijuana in violation of the terms and conditions of his community supervision. The trial court granted the State’s motion, proceeded to find Appellant “guilty,” and sentenced him to imprisonment for eleven years. This appeal followed.

TIME PAYMENT FEE

In his sole issue, Appellant argues the trial court erred in assessing a “time payment” fee previously authorized by Section 133.103 of the Texas Local Government Code. Although the State acknowledges that it has conceded error on this issue in previous appeals, it reconsidered its position on the “time payment” fee and no longer concedes error.

Discussion

Several intermediate appellate courts, including this Court, have held subsections (b) and (d) of Section 133.03 unconstitutional. See, e.g., Irvin v. State, No. 12-19-00347-CR, 2020 WL 5406276, at *7 (Tex. App—Tyler Sept. 9, 2020, pet. filed) (mem. op., not designated for publication); Ovalle v. State, 592 S.W.3d 615, 618 n.1 (Tex. App.—Dallas 2020, pet. filed); Simmons v. State, 590 S.W.3d 702, 712 (Tex. App.—Waco 2019, pet. filed); Johnson v. State, 573 S.W.3d 328, 340 (Tex. App.—Houston [14th Dist.] 2019, pet. filed). However, the court of criminal appeals recently held that the pendency of an appeal stops the clock for the purposes of the time payment fee. Dulin v. State, Nos. PD-0856-19, PD-0857-19, 2021 WL 1202400, at *4 (Tex. Crim. App. March 31, 2021).

In this case, the judgment adjudicating guilt reflects that the trial court assessed $254 in court costs. The judgment includes a document entitled “Order to Withdraw Funds,” which states that Appellant incurred court costs, fees, fines, and/or restitution in the amount of $254. The bill of costs itemizes the court costs imposed, which total $254 with $254 outstanding. The bill of costs includes a $25.00 “time payment” fee and a paragraph stating that a $25.00 fee will be assessed if any part of a fine, court costs, or restitution is paid on or after the 31st day after the judgment assessing the court costs is entered. 2 See TEX. LOC. GOV’T CODE ANN. § 133.103(c), redesignated as TEX. CODE CRIM. PROC. ANN. art. 102.030 (West Supp. 2020) (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).

Because the pendency of an appeal suspends the running of the clock for purposes of the time payment fee, the assessment of the fee in Appellant’s case is premature. See Dulin, 2021 WL 1202400, at *4. As a result, the fee should be struck in its entirety, without prejudice to it being assessed later if, more than thirty days after the issuance of our mandate, Appellant fails to completely pay any fine, court costs, or restitution that he owes. 3 Id. We sustain Appellant’s sole issue. Accordingly, we modify the trial court’s judgment and order to withdraw funds to delete the time payment fee. See Ovalle, 592 S.W.3d at 618.

DISPOSITION Having sustained Appellant’s sole issue, we modify the trial court’s judgment and order to withdraw funds by deleting 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 any fine, court costs, or restitution that he owes. We affirm the judgment as modified.

BRIAN HOYLE

Justice Opinion delivered April 14, 2021.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH) COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT APRIL 14, 2021 NO. 12-20-00160-CR LOUIS DEWAYNE SHEPHERD, Appellant V. THE STATE OF TEXAS, Appellee Appeal from the 241st District Court of Smith County, Texas (Tr.Ct.No. 241-1622-18)

THIS CAUSE came to be heard on the appellate record and the briefs filed herein, and the same being considered, because 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 of the court below and the order to withdraw funds be modified by deleting 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 any fine, court costs, or restitution that he owes; in all other respects the judgment of the trial court is affirmed; and that this decision be certified to the court below for observance.

Brian Hoyle, Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.