AFFIRM AS MODIFIED; Opinion Filed June 29, 2021 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-19-00764-CR 

TIMOTHY DONHAM, Appellant 

V. 

THE STATE OF TEXAS, Appellee 

On Appeal from the 265th Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. F19-40292-R 

MEMORANDUM OPINION ON REMAND 

Before Justices Schenck, Molberg, and Nowell 

Opinion by Justice Schenck 

The case is before us is on remand from the Texas Court of Criminal Appeals. 

In our original opinion, we held a portion of a $25 time payment fee assessed as part 

of the court costs under section 133.103 of the Local Government Code was facially 

unconstitutional. The State filed a petition for discretionary review with the court 

of criminal appeals. The court of criminal appeals recently handed down its opinion 

in Dulin v. State, 620 S.W.3d 129 (Tex. Crim. App. 2021), in which the court held 

that the time payment fee was assessed prematurely because the pendency of appeal 

suspends the obligation to pay court costs. Accordingly, the court refused the State’s 

petition and instead granted review on its own motion of the following restated 
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question: Should the “Time Payment Fee” be struck as prematurely assessed? The 

court then vacated our judgment and remanded this case to us for consideration of 

that question in light of Dulin. 

We affirm the judgment as modified below. Because all issues are settled in 

law, we issue this memorandum opinion. TEX. R. APP. P. 47.4. 

BACKGROUND

In October 2018, appellant met the complainant on a dating website, and he 

soon thereafter moved in with her. By January 2019, the complainant decided to 

end the relationship and sought to evict appellant. Appellant was upset by this turn 

of events and sent threatening messages to the complainant over several days. The 

day after the complainant ended the relationship, she discovered her car’s windshield 

was cracked. She suspected appellant. When she confronted appellant, he denied 

breaking her windshield and told her that, “if it were him, [her] car would be on fire.” 

On the night of January 29, the complainant woke up to learn both her car and her 

mother’s car were on fire. 

In March 2019, appellant was charged by separate indictments for arson and 

stalking. Appellant judicially confessed and entered open pleas of guilty to each 

charge. The trial court assessed punishment at six years’ confinement in each case. 

Appellant timely appealed. 
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DISCUSSION

As with our original opinion, the issue is whether a portion of the time 

payment fee is facially unconstitutional. 

Appellant contends a portion of a $25 time payment fee assessed as part of 

the court costs in the arson case under section 133.103 of the Local Government 

Code is facially unconstitutional. Specifically, he argues that the fees collected 

under subsections (b) and (d) were not collected for a legitimate criminal purpose 

and therefore violate the separation of powers provision of the Texas Constitution. 

He asks that we modify the judgment to delete $22.50 of the court costs assessed in 

the arson case. 

The State first responds that appellant has waived this complaint by failing to 

object below. We disagree. Although appellant did not object to the costs in the 

trial court, the costs were not imposed in open court and the written judgment does 

not contain an itemization of the imposed costs. Thus, appellant may challenge the 

constitutionality of the costs for the first time on appeal. See Johnson v. State, 537 

S.W.3d 929, 929 (Tex. Crim. App. 2017) (per curiam). 

As to the merits of his complaint, we now address the question posed by the 

criminal court of appeals: whether the time payment fee should be struck as 

prematurely assessed. Section 133.103 provides for a time payment fee to be 

assessed if the defendant pays some or all of his fine, court costs, or restitution on or 

after the 31st day after the date on which a judgment is entered assessing the fine, 
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court costs, or restitution. See TEX. LOC. GOV’T CODE ANN. § 133.103. Appellant 

filed his notice of appeal the same day on June 24, 2019. The record reflects 

appellant was assessed a time payment fee on July 25, 2019. As noted by the court 

of criminal appeals, the pendency of an appeal stops the clock for purposes of the 

time payment fee. See Dulin, 620 S.W.3d at 133. Consequently, the assessment of 

the time payment fees in appellant’s case is premature, and the fees should be struck 

in their entirety, without prejudice to them being later assessed if, more than 30 days 

after the issuance of the appellate mandate, the defendant has failed to completely 

pay any fine, court costs, or restitution that he owes. See id. 

We have the authority to modify the trial court’s judgment to make the record 

speak the truth. TEX. R. APP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. 

Crim. App. 1991). Accordingly, we modify the trial court’s judgment to reduce the 

total amount of court costs by $25 to strike the time payment fee. 

CONCLUSION

As modified, we affirm the trial court’s judgment. 

DO NOT PUBLISH

Tex. R. App. P. 47 

191764F.U05 

 

/David J. Schenck/

DAVID J. SCHENCK 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

TIMOTHY DONHAM, Appellant 

No. 05-19-00764-CR V. 

THE STATE OF TEXAS, Appellee 

 On Appeal from the 265th Judicial 

District Court, Dallas County, Texas 

Trial Court Cause No. F19-40292-R. 

Opinion delivered by Justice 

Schenck. Justices Molberg and 

Nowell participating. 

 Based on the Court’s opinion of this date, the judgment of the trial court is 

MODIFIED as follows: 

to reduce the total amount of court costs by $25 to strike the time 

payment fee. 

As REFORMED, the judgment is AFFIRMED. 

Judgment entered this 29th day of June, 2021.