Akeem Denoise Dye v. the State of Texas

In The Court of Appeals Seventh District of Texas at Amarillo No. 07-19-00370-CR AKEEM DENOISE DYE, APPELLANT V. THE STATE OF TEXAS, APPELLEE On Appeal from the 27th District Court Bell County, Texas1

Trial Court No. 78148, Honorable John T. Gauntt, Presiding

June 14, 2021 MEMORANDUM OPINION Before PIRTLE and PARKER and DOSS, JJ.

Akeem Denoise Dye, appellant, was convicted of two offenses and sentenced to prison. In addition, the trial court assessed a $25 “time payment fee” against appellant. See TEX. LOCAL GOV’T CODE ANN. § 133.103 (West 2008).2 On appeal, appellant challenged the constitutionality of this fee. See Dye v. State, No. 07-19-00370-CR, 2020 Tex. App. LEXIS 7501, at *3-4 (Tex. App.—Amarillo Sept. 16, 2020, pet. ref’d) (mem. op., not designated for publication). We sustained appellant’s point and modified the trial court’s judgment to reflect that only a portion of the fee could be assessed by the district clerk. Id. at *4.

The Court of Criminal Appeals granted review on the issue of whether the time payment fee should be struck as prematurely assessed. In light of its recent decision in Dulin v. State, Nos. PD-0856-19, PD-0857-19, 2021 Tex. Crim. App. LEXIS 273, at *11 (Tex. Crim. App. Mar. 31, 2021), the court vacated our judgment and remanded the case.

In Dulin, the Court of Criminal Appeals held that the pendency of an appeal stops the clock for purposes of the time payment fee. Id. Thus, the assessment of the fee in appellant’s case is premature. Id. Accordingly, the fee should be struck in its entirety.3 We modify the trial court’s judgment to delete the time payment fee of $25, without prejudice to its assessment later, if warranted. We affirm the judgment as modified.

Judy C. Parker

Justice Do not publish.

3As the Court of Criminal Appeals explained in Dulin, “Whether the time payment fee will be reimposed later is speculative at this point because [appellant] could avoid the statutory conditions for imposing the fee by choosing to pay his monetary obligations on time. And there is an available statutory remedy to challenge the time payment fee, if it is ever imposed. TEX. CODE CRIM. PROC. [ANN.] art. 103.008(a) [(West 2018)].” Id. at *4 n.29.