## NO S

. 12

- 20

- 00115

- CR 12

- 20

- 00116

- CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

BRYAN ANTHONY HOPE , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL S FROM THE 241ST

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORAND UM OPINION Bryan Anthony Hope appeals his convictions for aggravated assault on a public servant
in trial court cause number 241

- 1419

- 19 and evading arres t or detention with a vehicle in trial
court cause number 241

- 1489

- 19

. Appellant raises three issues in two sepa rate briefs challenging the trial court’s assessment of court costs. We modify and affirm as modified

.

B ACKGROUND Appellant was charged by in dictment with aggravated assault on a public servant 1 and evading arrest or detention wi t h a vehicle

. 2 Pursuant to a plea bargain agreement with the State,
h e pleaded “guilty” to the offenses , and the trial court deferred a finding of guilt and placed him on community supervision for a term of ten years

. Subsequently, the State filed a motion to adjudicate Appellan t’s guilt alleging several violations of his community supervision conditions

. Appella nt pleaded “true” to the allegations. Ultimately, the tr ial court found the allegations

“ true, ” found Appellant “guilty” of the charges , and assessed his punishment at i mprisonment for

1 A first

- degree felony. See T EX

. P ENAL C ODE A NN

. § 22.02( a ), (b)(2)(B) (West 2019).

2 A third

- degree felony. See id. § 38.04( a ), (b)(2)(A) (West 2016).2 thirty years in the aggravated assault case and ten years in the evading case

. This appeal
followed.

A DEQUACY OF B ILL OF C OST S S UPPORT In Appellant’s sole issue in trial court cause number 241

- 1419

- 19, he argues that the trial
court erred by ordering the withholding of funds from his inmate trust account in an amount not supported by the bill of costs. Standard of Review and App licable Law The code of criminal proced ure requires that a judgment order a defendant to pay court

costs. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 42.16 (West 2018 ) ; Johnson v. State , 423 S.W.3d 385, 390 (Tex. Crim. App. 2014)

. A cost is not payable by the perso n charged with the cost until a written bill containing the items of cos t is produced, signed by the officer who charged the cost or the officer who is entitled to receive payment for the cost, and provided to the person charge d
with the cost. T EX

. C ODE C RIM

. P ROC

. A NN

. art. 103.001(b) (West 2018 ). We review the assessment of court costs on appeal to determine if t here is a basis for the cost. Johnson , 423
S.W.3d at 390. Analysis The judgment in cause number 241

- 1419

- 19 reflects court costs in the amoun t of $229.00

. The attached order to withdraw funds from Appellant’s inmate trust account states that

“ [c] ourt co sts, fees and/or fines and/or restitution have been incurred in the amount $229.00;
30.00 ” and orders that payment be made from the account. T he bill of costs lists various fees totaling $259.00 with a balance of $239.0 0. The fee list includes a $30.00 f ee de signated as “Time Payment Fee 2020.” Appellant argues that the $30.00 fee named in the withdrawal order is not supported by
the bill of c osts and should be deleted. The State contends that the $30.00 fee named in the
withdrawal order represents the time payment fee named in the bill of costs

. However, the State contends the amount of the fee is wrong and should be corrected to $25.00. We agree with the State that the fee is supported by the bill of costs , but we also agree with Appellant that it mu st be de leted. The pendency of an appeal stops the clock for purposes of the time payment fee. Dulin
v. State , 620 S.W.3d 129, 133 (Tex. Crim. App. 2021). Consequently, the assessment of the time3 payment fee in each of Appellant’s case s is premature, and the fee s should be struck in their entirety, without prejudice to a time payment fee being assessed later if, more than thirty days
after the issuance of the appellate mandate, Appellant has failed to completely pay any fine, court costs, or restitution h e owes. See id. We sustain Appellant’s sole issue in cause number
241

- 1419

- 19

.

D UPLICATE C OURT C OST A SSESSMENT In Appellant’s first issue in trial court cause number 241

- 1489

- 19 , he argues that the trial
court erred by assessing court costs twice in a s ingle criminal action. The State concedes this

error. The code of criminal procedure provides as follows:

(a) In a single criminal action in which a defendant is convicted of two or more offenses or of multiple counts of the same offense, the court may a ssess each court cost or fee only once against the defendant.
(b ) In a criminal action described by Subsection (a), each court cost or fee the amo u nt of which is determined according to the category of offense must be assessed using the highest category

o f offense that is possible based on the defendan t’s convictions.

T EX

. C ODE C RIM

. P ROC

. A NN

. a rt. 1 02.073 (a), (b) (West 2018 ). In this context , we construe the phrase “ [i]n a single criminal action” to mean in a single trial or plea proceeding

. Hurlburt v. State , 506 S.W.3d 199, 203 (Tex. App.

— Waco 2016, no pet.).
The record in this case shows that the allegations and evidence of both offense s were presented in a single plea proceeding , or “criminal action.” See id. Therefore, the trial court was
auth orized to assess each court cost and fee only once against Appellant. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 102.073(a). However, the judgment i n cause number 241

- 1419

- 19 shows a court cost assessment of $ 22 9.00 , and the judgment in cause number 241

- 1489

- 19 shows a court cost assessment of $ 339.00 and $30.00. The two bill s of costs list many of the same fees , which total $ 22 9.00 in cause number 2 41

- 1419

- 19 and $ 23 4 .00 in cause number 241

- 1489

- 19

. 3 We conclude that the trial court erred by assessing each of these fees twice against Appellant. See id.
Acc ordingly, we sustain Appellant’s first issue in cause number 241

- 1489

- 19

.

3 The $5.00 difference in the amounts results from the fee designated in both bills as “Arrest Fee

– Lindale PD $5.00” being charged in the incorrect amount of $10.00 in cause number 241

- 1489

- 19.4 We have the author ity to correct a trial court’s judgment to make the record speak the truth when we have the necessary data and in formation. Asberry v. State , 813 S.W.2d 526, 529 (Tex. App.

— Dallas 1991, pet. ref’d). Because we have the necessary data and information to

c orrect the amount of court costs in this case, we conclude that the judgment and withdrawal
order in trial court cause number 241

- 1 489

- 1 9 should be modified to re move the duplicated court cost amount of $234.00

. See id. ; T EX

. R. A PP

. P. 43.2( b).

L OCAL C O NSOLIDATED F EE
In Appellant’s second issue in trial court cause number 241

- 1489

- 19 , he argues that the
trial cour t improperly assessed several fees in addition to th ose duplicated in cause number 241

- 1419

- 19

. The State recognizes that together the fees co nstitute the L ocal C onsolidated Fee on Conviction of Felony and concedes th ey were assessed in error. The Local C onsolidated Fee on Conviction of Felony applies only to defendant s who are convicted of offenses committed on or after January 1, 2020. See Ha yes v. State , No. 12

- 20

- 00222

- CR, 2021 WL 1418400, at *2 (Tex. App

. — Tyle r Apr. 14, 2021, no pet. h.) (mem. o p., n ot designated for publication) (citing T EX

. L OC

. G OV ’ T C ODE A NN

. § 134.101 (West Supp. 2021 )).
Section 134.101 assesses an additional $105 fee for a person who is convicted of a felony. See
T EX

. L OC

. G OV ’ T C ODE A NN

. § 134.101(a). That fee is to be alloca ted to the following specific accounts and funds: the clerk of the court account, the county records management and preservation fund, the coun ty jury fund, the courthouse security fund, the county and district court technology fund, and the co unty special ty court account. See id. § 134.101( b )

. In the instant case, the commission date for the offense is June 29 , 201 9

. The certified
bill of cos ts includes the following costs list ed in Section 134.101: $ 40.00 Clerk of the Court; $4.00 County and District C ourt Tech n ology Fund; $ 1 .00 County Jury Fund ; $25.00 County Records Managem en t and Preservation; $25.00 County Specialty Court Account; $ 10 .00 Courthouse Security Fund. The sum of these costs is $ 105 .00.
Because the offense in this case w as committed befo re January 1, 2020, Appellant is not obligated to pay the “Local Consolidated Fee on Conviction of Felony.” Se e Hayes , 2021 WL 1418400, at *2. Accordingly, we conclude that the judgment in trial court cause number 241

- 1 48 9

- 1 9 should be modified to remove those costs in the amount of $105.00. See T EX

. R. A PP

. P.5 43.2( b); Asberry , 813 S.W.2d at 529. We susta in Appellant’s sec ond issue in cause number 241

- 1489

- 19

.

D ISPOSITION Having sustained Appellant’s sole issue in trial court cause number 241

- 1419

- 1 9 and his
first and second issues in trial court cause number 241

- 1489

- 19 , w e modify the trial court’s judgment and withdrawal order in cause n umber 241

- 1419

- 19 to reflect that the amount of court costs is $ 229 .00 , modify the trial court’s judgment and wit hdrawal order in cause number 241

- 1489

- 19 to reflect that the amount of court costs is $ 0 .00, and modify the bill of costs in each

case to remo ve 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 the fine, court
costs, or res t i tution he owes . We affirm the judgment s as modified.

J AMES T. W ORTHEN Chief Justice
Opinion delivered October 20 , 2021. Panel consisted of Wor then, C.J., Hoyle, J., and Neeley, J.

( DO N OT PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TE XAS

JUDGMENT

OCTOBER 20 , 2021

NO. 12

- 20

- 00115

- C R

BRYAN ANTHONY HOPE , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 241st District Court
of Smith County, Texas (Tr. Ct.No. 241

- 1419

- 19 ) THIS CAUSE came to be heard on the appellate record and the brief s filed herein, and the same being con sidered, it is the opinion of this court that the judgment and
withdrawal order of the court below should be modified and as modified, affirmed.
I t is therefore ORDERED, ADJUDGED and DECREED that the jud gment and withdrawal order of the court belo w be modified to reflect that the amount of court costs is $ 229 .00 ; in all other respects the judgment of the trial court is affirme d ; 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

.

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

OCTOBER , 2 021

NO. 12

- 20

- 0011 6

- CR

BRYAN ANTHONY HOPE , Appellant V. THE STATE OF TEXAS , Appellee

Appeal from the 241st District Co urt of Smith County, Texas (Tr.Ct.No. 241

- 14 8 9

- 19 ) THIS CAUSE came to be heard on the appellate record and the brief s filed herein, and the same being considered, it is the opinion of this court that the judgmen t and withdrawal order of the court below should be modified and as modified, affirmed. I t is therefore ORDERED, ADJUDGED and DECREED that the judgment and withdrawal order of the court below be modified to reflect that the amount of court costs is $ 0 .00 ; in all other respects the judgment of the trial court is affirmed ; and that this decision be certified to the court below for observance

. James T. Worthen , Chief Justi ce

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

.