David Wayne Herring v. State ( 2018 )

NO. 12-17-00255-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
DAVID WAYNE HERRING, § APPEAL FROM THE 7TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
David Wayne Herring appeals his conviction for possession of methamphetamine. In one
issue, he argues that some of the court costs imposed on him in the trial court’s judgment are
unconstitutional. We modify and affirm as modified.
BACKGROUND
Appellant was charged by indictment with possession of between one and four grams of
methamphetamine and pleaded “guilty.” The matter proceeded to a bench trial on punishment.
Ultimately, the trial court sentenced Appellant to imprisonment for fifteen years. This appeal
followed.
COURT COSTS
In his sole issue, Appellant argues that we should modify the trial court’s judgment and
withdrawal order to remove certain unconstitutional court costs.
Applicable Law
The imposition of court costs upon a criminal defendant is a “nonpunitive recoupment of
the costs of judicial resources expended in connection with the trial of the case.” Johnson v.
State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). The consolidated fee statute requires a
defendant to pay a court cost of $133 on conviction of a felony. TEX. LOC. GOV’T CODE ANN.
§ 133.102(a)(1) (West Supp. 2017). The money received is divided among a variety of state
government accounts according to percentages dictated by the statute. See id. § 133.102(e)
(West Supp. 2017); Salinas v. State, 523 S.W.3d 103, 105 (Tex. Crim. App. 2017). The court of
criminal appeals has held the statute unconstitutional with respect to two of these accounts: an
account for “abused children’s counseling” and an account for “comprehensive rehabilitation.”
See Salinas, 523 S.W.3d at 105. As a result, the court held that any fee assessed pursuant to the
statute must be reduced pro rata to eliminate the percentage of the fee associated with these
accounts. Id. The court further held that its holding applies only to (1) a defendant who raised
the appropriate claim in a petition for discretionary review before the date of the court’s opinion,
if the petition is still pending on that date and the claim would otherwise be properly before the
court on discretionary review, or (2) a defendant whose trial ends after the mandate in Salinas
issues. Id. at 113.
Analysis
Here, the judgment of conviction reflects that the trial court assessed $383.00 in court
costs. 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 $563.00.1 The certified bill of costs itemizes the court costs
imposed, which total $383.00. The bill of costs indicates that the $133 consolidated fee was
assessed. The proceedings in the trial court ended when the trial court pronounced Appellant’s
sentence on August 11, 2017. Because Appellant’s trial ended after the mandate in Salinas
issued, the court’s holding in that case applies. See id.; see also Salinas v. State, No. PD–0170–
16 (Tex. Crim. App. June 30, 2017) (mandate).
The proper remedy when a trial court erroneously includes amounts as court costs is to
modify the judgment to delete erroneous amounts. See Sturdivant v. State, 445 S.W.3d 435, 443
(Tex. App.–Houston [1st Dist.] 2014, pet. ref’d). In accordance with the court’s holding in
Salinas, the appropriate amount assessed in a felony case as consolidated court costs is $119.93.
See Salinas, 523 S.W.3d at 113 (Hervey, J. Concurring). Therefore, we will modify the trial
court’s judgment and Attachment A to reflect the appropriate assessment of court costs.
Appellant’s sole issue is sustained.
1
As part of his plea agreement, Appellant agreed to pay $180.00 in restitution.
2
CONCLUSION
Having sustained Appellant’s sole issue, we modify the trial court’s judgment to reflect
that the amount of court costs is $369.93. See TEX. R. APP. P. 43.2(b). We also modify
Attachment A to state that the total amount of “court costs, fees and/or fines and/or restitution” is
$549.93. See id. We affirm the trial court’s judgment as modified.
BRIAN HOYLE
Justice
Opinion delivered March 21, 2018.
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
MARCH 21, 2018
NO. 12-17-00255-CR
DAVID WAYNE HERRING,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-1013-16)
THIS CAUSE came on to be heard on the appellate record and the briefs
filed herein; and the same being inspected, it is the opinion of the Court that the trial court’s
judgment below should be modified and, as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the trial
court’s judgment below be modified to reflect that the amount of court costs is $369.93. We
also modify Attachment A to state that the total amount of “court costs, fees and/or fines and/or
restitution” is $549.93; and as modified, the trial court’s judgment is affirmed; and that this
decision be certified to the trial court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.