Delfino Ortega Jr. v. State ( 2019 )

Opinion filed October 18, 2019
In The
Eleventh Court of Appeals
__________
No. 11-19-00081-CR
__________
DELFINO ORTEGA JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 266th District Court
Erath County, Texas
Trial Court Cause No. CR14847
MEMORANDUM OPINION
The jury convicted Appellant, Delfino Ortega Jr., of the offense of felony
driving while intoxicated, found the alleged punishment enhancement to be true, and
assessed punishment at confinement for twenty years. We modify the trial court’s
judgment to delete (1) the restitution ordered by the trial court and (2) a portion of
the Time Payment Fee assessed as a court cost and, as modified, affirm the trial
court’s judgment.
Appellant’s court-appointed counsel has filed in this court a motion to
withdraw. The motion is supported by a brief in which counsel professionally and
conscientiously examines the record and applicable law and concludes that there are
no arguable issues to present on appeal. Counsel provided Appellant with a copy of
the brief, a copy of the motion to withdraw, and a copy of both the clerk’s record
and the reporter’s record. Counsel advised Appellant of his right to review the record
and file a response to counsel’s brief. Counsel also advised Appellant of his right to
file a petition for discretionary review. See TEX. R. APP. P. 68. Court-appointed
counsel has complied with the requirements of Anders v. California, 386 U.S. 738
(1967); Kelly v. State, 436 S.W.3d 313 (Tex. Crim. App. 2014); In re Schulman, 252
S.W.3d 403 (Tex. Crim. App. 2008); and Stafford v. State, 813 S.W.2d 503 (Tex.
Crim. App. 1991).
Appellant has not filed a response to counsel’s Anders brief. In addressing an
Anders brief, a court of appeals may only determine (1) that the appeal is wholly
frivolous and issue an opinion explaining that it has reviewed the record and finds
no reversible error or (2) that arguable grounds for appeal exist and remand the cause
to the trial court so that new counsel may be appointed to brief the issues. Schulman,
252 S.W.3d at 409; Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App.
2005). Following the procedures outlined in Anders and Schulman, we have
independently reviewed the record, and we agree with counsel that no arguable
grounds for appeal exist. 1
We note, however, that the judgment contains nonreversible error in two
respects—the trial court’s order of restitution and assessment of a portion of the
Time Payment Fee.
First, in the judgment, the trial court ordered Appellant to pay “Restitution”
that consisted of a lab fee of $60 to the “Texas DPS.” Although a trial court has
authority to require a defendant to pay the DPS for lab fees as a condition of
1
We note that Appellant has a right to file a petition for discretionary review pursuant to TEX. R.
APP. P. 68.
2
community supervision, a trial court has no authority to assess DPS lab fees when a
defendant is sentenced to imprisonment. Sexton v. State, No. 11-18-00278-CR, 2019
WL 4316791, at *1 (Tex. App.—Eastland Sept. 12, 2019, no pet. h.) (per curiam)
(mem. op., not designated for publication); see also Aguilar v. State, 279 S.W.3d
350, 353 (Tex. App.—Amarillo 2007, no pet.). Because Appellant was sentenced
to imprisonment, the trial court had no authority to order him to reimburse the DPS.
See Sexton, 2019 WL 4316791, at *1; King v. State, No. 12-17-00194-CR, 2018 WL
345737, at *2 (Tex. App.—Tyler Jan. 10, 2018, no pet.) (mem. op., not designated
for publication). Further, DPS lab fees are not properly subject to a restitution order.
Sexton, 2019 WL 4316791, at *1; see Hanna v. State, 426 S.W.3d 87, 91 (Tex. Crim.
App. 2014) (recognizing that restitution “may be ordered only to a victim of an
offense for which the defendant is charged”). A trial court is authorized to order a
defendant convicted of an offense to pay restitution to a victim of the offense or to a
crime victim’s assistance fund, not to an agency of the State of Texas such as the
DPS. TEX. CODE CRIM. PROC. ANN. art. 42.037(a) (West 2018); Sexton, 2019 WL
4316791, at *1. We hold that the trial court had no authority to require Appellant to
pay restitution to the DPS. Therefore, the trial court erred when it included in the
judgment $60 in restitution payable to the DPS.
When a trial court lacks statutory authority to impose the specific restitution
order, such as when restitution has been ordered to be paid to someone who was not
a victim of the offense, we should delete the restitution order. Burt v. State, 445
S.W.3d 752, 757–58 (Tex. Crim. App. 2014); Sexton, 2019 WL 4316791, at *1.
Therefore, we modify the trial court’s judgment to delete the $60 in restitution to the
“Texas DPS.”
Second, in the judgment, the trial court ordered Appellant to pay court costs,
including a Time Payment Fee of $25 pursuant to section 133.103 of the Texas Local
Government Code. See TEX. LOC. GOV’T CODE ANN. § 133.103 (West Supp. 2018).
3
We have held that subsections 133.103(b) and (d) of the Texas Local Government
Code are facially unconstitutional because the collected fees are allocated to general
revenue and are not sufficiently related to the criminal justice system. See King v.
State, No. 11-17-00179-CR, 2019 WL 3023513, at *1, 5–6 (Tex. App.—Eastland
July 11, 2019, pet. filed) (mem. op., not designated for publication).
Accordingly, the trial court erred when it assessed a Time Payment Fee under
subsections 133.103(b) and (d) of the Texas Local Government Code as a court
cost.2 See id.
When the trial court erroneously includes fees as court costs, we should
modify the trial court’s judgment to remove the improperly assessed fees. See
Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013). We, therefore, modify
the trial court’s judgment to delete $22.50 of the Time Payment Fee assessed as court
costs, leaving a Time Payment Fee of $2.50. See King, 2019 WL 3023513, at *5–6.
We grant counsel’s motion to withdraw, and affirm the judgment of the trial
court as modified.
PER CURIAM
October 18, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.3
Willson, J., not participating.
2
The legislature has passed legislation, effective January 1, 2020, that deletes subsections (c) and
(d) from Section 133.103 and revises subsection (b) to provide that all of the fees collected under
Section 133.103 are to be deposited in a separate account in the general fund of the county or municipality
“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., SB 346, § 2.54 (transferring Section 133.103 of the Texas Local
Government Code to Article 102.030 of the Texas Code of Criminal Procedure).
3
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
4