## NO S

. 12

- 20

- 00156

- CR 12

- 20

- 00159

- CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JAMES EARL WARREN , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL S FROM THE 7TH

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

MEMORANDUM OPINION
Jam es Earl Warren a ppeals h is conviction s fo r e ngaging in organized cri minal activity and aggravated assault with a deadl y weapon

. In his sole i s sue , Appellant argues that the “ time

payme nt ” fee assessed in the trial cou rt ’ s bill of costs in each case is unc onstit utional

. We modify
and a ffirm as modified

.

B ACKGROUND Appellant was charg ed by indic tm ent with engaging in organized criminal acti vity
committed as a member of a criminal st reet g ang , a third deg ree felony. 1 Further, Appellant was charge d by indic tment with aggravated assau lt with a deadly weapon , i. e., he u s e d or ex hibited a deadly wea pon, a fi re arm and a BB gun
, dur ing commission of or immediate fl ight from the
offense , a secon d degree f elony

. 2 Appellant pleaded “ guilty ” t o both offenses

. He also pleaded “ t rue ” to the allegation that
he committed th e offense of enga ging in organized criminal activity as a member of a criminal

1 E ng aging in org an ized criminal activ ity is punish able one catego ry higher than the mo st serious offense that was committed. See T EX

. P ENAL C ODE A NN

. § 71.02 ( b) (West Supp . 2020 ). The underlying offense, b u rglary
, is a state jail fel ony if th e offense wa s committed in a building other tha n a ha bitation. See id

. § 30.02 ( c )(1) (West 2019 )

. Thus, this offense is a third degree felony

. See id. § 12. 34 (West 2019 )

.

2 S ee T EX

. P ENAL C ODE A NN

. § § 12. 3 3 , 22.02 (b) (West 2019 )

.2 street gan g, and the allega tion that he used or exhibited a deadly weap on

. Appellant and h is counsel signed various docume nts in con nection with h is guilty plea s , including an agreed punishment recomme ndation
, and a stipulation of evidence in which Appellant judici ally
confess ed to the offense s alleged in the in dictment s , adm itted that he committed each and every allegation a lleged in the complaint s , and admitted he was guilty as charged for each offense

. The trial court accepted Appellant’s plea s , f ound the eviden ce substantia ted hi s guilty pleas
, deferred proceeding s without ente r ing an adjudication of guilt in each offense
, and ordered tha t Appellant be placed on def erred ad judication community supervision for ten years f or each offense

. Later, the State filed a motion to adjudica te guilt in each offense , alleging that App e llant
violated the terms of his community supervis ion

. At the hearing on the State’s motion s to adjudicate guilt , Appellant pleaded “true” to al l the State ’ s allegations

. A fter the hearing, th e tria l

court granted the State ’ s mot ions to a dju dicate g uilt
, revoked Appellant ’ s deferred adjudication
communit y supervisi on, and adjudicat ed Appella nt guilty of engaging in organi zed criminal activity and aggravated assault with a d e adly we apon

. F urthe r, the tr ia l cour t made an affirmative finding that Appellant wa s a member of a criminal street gang
, and that he used a deadly weapon

. The trial court assessed Appellant’s punish ment at eight years of impri s onment in each case
, to

r un concurrently , and o rdered Ap pellan t t o pay all c ourt costs

. T h ese appe al s followe d

.

C O URT C OSTS
In his sole issue in each case , A ppellant argues that the trial court erred in assessing a “time payment” fee previously authorized by Texas Local Government Code, Section 133. 103 in
its judg m ent

. 3 Although the State acknowledg e s that it conce ded err or on this issue in previous appeals
, it has reconsidered its position on the “ time payment ” fee a n d no longer concedes error.
We have held that the “ time payment ” fee previously a uthorized by Sectio n 13 3.103 is
fac ially uncon s ti tut ional. Irvin v. State , No. 12

- 19

- 00347

- CR, 2020 WL 5406276, at *7 (Tex. App.

— Tyler Sept. 9, 2020, pet. filed ) (mem. op., not designated for publication) ; see also Salinas

3 The Texas Legislat ure passed legislation, effective January 1, 20 20, 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 t he fees collected under the section are “to be used for the purpose of improving the c ollec tion of outstanding court costs, fines, reimbursement fees, or restitution or improving the efficie ncy of the administration of just ice in the county or municipality .” See Act of May 23, 2019, 86th Leg., R.S. , S.B. 346, § 2.54, 2019 Tex. Sess. Law Ser v. C h. 1352. The changes apply only to a cost, fee, or fine assessed on a conviction for an offense comm itted on or after the effective date of the Act. Id. § 5.01. Becau se the offense in this case was committe d before January 1, 2020, the former law appli e s. See Ovalle v. State , 592 S.W.3d 615, 617 n.1 (Tex. App.

– Dallas 2020, pet. filed).3 v. State , 523 S.W.3d 103, 11 3 n. 54 (Tex. Crim. App. 2017); Ovalle v . State , 592 S.W.3d 615, 618 (Tex. App.

— Dallas 2020, pet. filed); Simmons v. State , 590 S.W.3d 702, 712 (Tex. App.

– Waco 2019, pet. filed ); Dulin v. State , 583 S.W. 3d 351, 353 (Tex. App.

–Austin 2019, pet. granted );
Johnso n v. State , 573 S.W.3d 328, 340 (Tex. Ap p.

– Houston [14th Dist.] 2019, no pet.) (concluding that, because the portions of time payment fee authorized by Section 133.103(b) and (d) were deposite d in general revenue and were not sufficiently allocated to admi nistration of criminal justi ce system, those subsections were facially unconstitutional as violating the separation

- of

- powers provision of Texas Constitution). Fines are punitive and intended to be part of the convicted defendant ’ s sentence. See
A rmstrong v. State , 340 S.W.3d 759, 76 7 (Tex. Crim. App. 2011). Court c osts, however, are “compensatory in nature” and are “a non

- punitive recoupment of the costs of judi cial resources expended in connection with the trial of the case.” Id. ; Williams v. St ate , 495 S.W.3d 583, 590 (Tex. App.

— Ho uston [1st Dist.] 2016), pet. dis m ’ d
, improvidently granted , 2017 WL 149348 8 (Tex. Crim App. 2017). We follow our prior decisions in this area and conclude that the “ time
payment ” fee previously authorized by Secti o n 13 3.103 is faci ally uncons titutional

. Here, the judgment adjudicating guilt in the engaging in organized crimi nal ac tivity
offense reflects that the trial court assessed $ 279 .00 in court costs. The judgment includes a
document identified as “ Order to W ithdraw Fun ds,” which states that Appell ant has incurred

“ c ourt costs, fe es , fines and /or restitution” in the amo unt of $2 7 9.00. The certified bill of costs itemizes the court costs imposed, which total $ 304 .00 with a $2 7 9.00 balance remaining. The bill
of costs in cludes a $25. 00 “ time payment ” fee and includes a paragraph stat ing that a $15.00 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

. B ut see T EX

. L OC

. G OV ’ T C ODE A NN

. § 133. 103(c)
, redesignated as T EX

. C ODE C RIM

. P R O C

. A NN

. a rt. 102.030 (West Supp. 20 20 ) (treasurer shall depo sit ten percent of fees collected und er this section in general fund of county or mun icipality for purpose of improving efficiency of a dministration of justice in county or municip ality).
Fu rther, the judgment adjudicating guilt in the aggravated assault w ith a deadly we a pon offense reflects that the trial court assessed $28 4 .00 in court costs. The judgment includes a
document identified as “ Order to Withdraw Funds,” which states t hat Appellant has incurred

“ c ourt costs, fee s , f ines and /or restitution” in t he amo unt of $28 4 .00. The certified bill of costs itemizes the court costs imposed, which total $ 304 .00 with a $2 84 .00 balance remain ing. The bill4 of costs includes a $25. 00 “ ti me payment ” fee and includes a paragraph stati ng that a $15.00 fee
will be asse ssed if any part of the court cost s is paid on or after the 31st day after the date the judgment assessing the court costs is entere d

. B ut see id. The proper remedy when a tria l court er roneously includes amounts as court costs is to modify the judgment to delete erroneous amounts. See S turdivant v. State , 445 S.W.3d 435, 443 (Tex. App.

– Houston [1st Dist.] 2014, pet. ref ’ d). Accordi ngly, we will modify the trial court ’ s judgme nt and Order to Withdraw Funds in each case to reflect the appropriate assessment of court
costs that do not incl ude the time payment fee. See Ovalle , 592 S.W.3d at 618. Appellant ’ s sole
issue in each case is s ustained.

C ONCLUSION Having sustained Appell ant ’ s sole iss ue in each case , we modify the trial court ’ s judgment
in the e ngaging in or ganized criminal ac tivit y of fense to reflect that the amount of court costs is $ 254

. 0 0. See T EX

. R. A PP

. P. 43.2(b). We further modify the Order to Withdraw Funds to state
that the total amount of “ c ourt costs, fees , fines and /or restitution” is $2 54

. 0 0. See id.
We modify the trial court ’ s judgment in the aggravated assault with a deadly wea pon of fense to reflect that the amount of court costs is $ 259

. 0 0. See id. We further modify t he Order
to W ithdraw Funds to state that the total amount of “ c ourt co sts, fees , fines and/or restitution” is $2 59.00

. See id. In all other respects, we affirm t he trial court ’ s judgment s

.

G REG N EELEY Justice
Opinion delivered Januar y 13, 2021. Panel consisted of Worthen, C.J., Hoyle, J., a nd Neeley, J.

( DO NOT PUB LISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

J ANUARY 13 , 2021

NO. 12

- 20

- 00156

- CR

JAMES EARL WARREN , Appellant V. THE STATE OF TEXAS , Appellee

Appea l from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007

- 0351

- 18 ) THIS CAUSE came to be heard on the appellate record and the brief s file d herein, and the same being considered, becau se it is the opinion of this court that the judgment of the court below should be modified and as modified, affirmed. I t is there fore ORDE RED, ADJUDGED and DECREED that the judgment in the engaging in organize d criminal activity of fense of the court below be modified to reflect that the amount of court costs is $ 25 4

. 0 0 ; w e further modify t he Order to W ithdraw Funds to state that the total amount of “ c ourt co sts, fees , fines and/or restitution” is $2 5 4 .00 ; in al l other respects the judgment of the trial cou rt is affirmed ; and that this decision be certified to the court be low for observance

. Greg Neeley , Justice

. Panel consisted of Wo rthen, C.J., Hoyle, J., and Neeley, J

.

## COURT OF APPEALS

TWELFTH COURT OF AP PEALS DISTRICT OF TEXAS

JUDGMENT

JANUARY 13 , 2021

NO. 12

- 20

- 0015 9

- CR

JAMES EARL WARREN , Appellant V. THE STATE OF TEXAS , Appellee

Appea l from the 7th District Court
of S mith County, Texas (Tr.Ct.No. 007

- 0 2 5 8

- 18 )

THIS CAUSE came to be heard on the appellate record and the brief s filed herein, and the same being considered, because it is the opinion of this court that the judgment of the court below should be modified and a s modified, affirmed. I t is therefore ORDE RED, ADJUDGED and DECREED that the judgment in the aggravated assault with a dead ly wea pon of fense of the court below be modified to reflect that the amount of court costs is $ 259

. 0 0 ; w e further modify t he Order t o W ithdraw Funds to state that the total amount of “ c ourt co sts, fees , fines and/or restitution” is $2 59.00 ; in all other

re spects the judgment of the trial court is affirmed ; and that this decision be certified to the court be low for observance

. Greg Neel ey , Justice

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

.