Charity Irvin v. the State of Texas ( 2021 )

NO. 12-19-00347-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CHARITY IRVIN, § APPEAL FROM THE 114TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION ON REMAND
A jury found Charity Irvin “guilty” of possession of less than one gram of
methamphetamine, and she appealed, raising three issues. In response to Appellant’s third 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 Irvin v. State, No. 12-19-00347-CR, 2020 WL 5406276, at *7–8 (Tex. App.–Tyler, Sept. 9,
2020) (mem. op, not designated for publication). We affirmed the remainder of the trial court’s
judgment as modified. Id. 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 Irvin v. State, No. PD-0959-20, 2021 WL
1940593, at *1 (Tex. Crim. App. May 12, 2021) (per curiam). In reliance on its opinion in
Dulin, the court vacated our judgment and remanded the cause to this court for further
consideration. See id. We affirm.
BACKGROUND
Appellant was charged by indictment with possession of less than one gram of
methamphetamine and pleaded “not guilty.” The matter proceeded to a jury trial. At the trial’s
conclusion, the jury found Appellant “guilty” as charged. Following a trial on punishment, the
jury assessed Appellant’s punishment at imprisonment for twenty-four months. The trial court
sentenced Appellant accordingly, and this appeal followed.
TIME PAYMENT FEE
In her 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 she owes. Id.
The trial court’s judgment sets forth that Appellant is obligated to pay court costs in the
amount of $289.00. The judgment includes a document identified as “Attachment A Order to
Withdraw Funds,” which states that Appellant has incurred “[c]ourt costs, fees and/or fines
and/or restitution” in the amount of $289.00. The certified bill of costs itemizes the court costs
imposed, which total $289.00 with a $289.00 balance remaining. Underneath the chart
describing each fee assessed is a statement that a $25.00 time payment fee will be assessed if any
part of the court costs is paid on or after the 31st day after the date the judgment assessing the
court costs is entered. But see TEX. LOC. GOV’T CODE ANN. § 133.103(c), redesignated as TEX.
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
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). However, neither
the chart in the bill of costs setting forth the costs assessed nor the $25.00 additional time
payment fee referenced in the statement below the chart indicates that a time payment fee has, in
fact, been assessed. Therefore, because the record does not support that a time payment fee was
assessed in this case, Appellant’s argument, even in light of the court’s opinion in Dulin, is
baseless. Appellant’s sole issue on remand is overruled.
DISPOSITION
Having overruled Appellant’s sole issue on remand, we affirm the trial court’s judgment.
JAMES T. WORTHEN
Chief Justice
Opinion delivered November 10, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
3
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
NOVEMBER 10, 2021
NO. 12-19-00347-CR
CHARITY IRVIN,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 114th District Court
of Smith County, Texas (Tr.Ct.No. 114-1520-18)
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.
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.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.