IN THE

TENTH COURT OF APPEALS

No. 10-18-00334-CR

MOSES C. LEE, 

Appellant

v.

THE STATE OF TEXAS, 

 Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2017-549-C2

MEMORANDUM OPINION ON REMAND

Moses C. Lee was convicted of assault by occlusion on a family/household 

member, enhanced, and was sentenced to 18 years in prison. See TEX. PENAL CODE §§ 

22.01(b)(2)(B); 12.42(a). We delivered our original memorandum opinion and judgment 

in this case on December 31, 2019. Lee v. State, No. 10-18-00334-CR, 2019 Tex. App. LEXIS 

11279 Tex. App.—Waco Dec. 31, 2020). The Court of Criminal Appeals vacated our 

judgment on May 12, 2021, and remanded it to us for proceedings consistent with its 

opinion in Dulin v. State, 620 S.W.3d 129 (Tex. Crim. App. 2021). See Lee v. State, No. PD0065-20, 2021 Tex. Crim. App. Unpub. LEXIS 376 (Crim. App. May 12, 2021) (per curiam). 

On remand, we modify and affirm the trial court’s judgment.
Lee v. State Page 2

ANDERS BRIEF

Before the Court of Criminal Appeals reversed and remanded this case to us, Lee’s 

appointed counsel filed a motion to withdraw and a brief in support of the motion 

asserting that he has diligently reviewed the appellate record and that, in his opinion, the 

appeal is frivolous pursuant to the United States Supreme Court opinion in Anders, but 

also presenting nonreversible error in the judgment pursuant to this Court’s order in 

Allison. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); Allison 

v. State, 609 S.W.3d 624, 628 (Tex. App.—Waco 2020, order). 

Counsel's brief evidences a professional evaluation of the record for error and 

compliance with the other duties of appointed counsel. We conclude that counsel has 

performed the duties required of appointed counsel. See Anders, 386 U.S. at 744; High v. 

State, 573 S.W.2d 807, 812 (Tex. Crim. App. 1978); see also Kelly v. State, 436 S.W.3d 313, 

319-320 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d 403, 407 (Tex. Crim. App. 

2008).

In reviewing the Anders portion of this appeal, we must, "after a full examination 

of all the proceedings, ... decide whether the case is wholly frivolous." Anders, 386 U.S. at 

744; see Penson v. Ohio, 488 U.S. 75, 80, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); accord Stafford 

v. State, 813 S.W.2d 503, 509-11 (Tex. Crim. App. 1991). An appeal is "wholly frivolous" 

or "without merit" when it "lacks any basis in law or fact." McCoy v. Court of Appeals, 486 

U.S. 429, 439 n. 10, 108 S. Ct. 1895, 100 L. Ed. 2d 440 (1988). After a review of the entire 

record in this appeal, we have determined the appeal to be wholly frivolous. See Bledsoe 

v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005); Cummins v. State, 646 S.W.3d 605, 

620-621(Tex. App.—Waco 2022, pet. ref'd). 
Lee v. State Page 3 

NONREVERSIBLE ERRORS

As noted previously, despite finding no reversible error, in briefing on remand, 

counsel has presented issues of nonreversible error. Those issues concern court costs 

included in the Certified Bill of Cost. Specifically, counsel challenges a $2 e-filing fee; a 

$15 conditional time payment fee; and $25, combined, as a separate time payment fee. 

We agree that all the fees complained of by Lee are nonreversible errors.

Assessment of Costs

On appeal, we review an assessment of court costs to determine if there is a basis 

for the cost, not to determine if there was sufficient evidence offered at trial to prove each 

cost. Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). We separately examine 

each item of cost to which Lee has lodged a complaint on appeal.

— $2 e-filing fee

The parties agree that there is no basis for the $2 e-filing fee. At the time of Lee’s 

conviction, the Government Code allowed for a $5 e-filing fee. See Act of May 16, 2013, 

83d Leg., R.S., ch. 1290, § 2, sec. 51.851(d), 2013 Tex. Gen. Laws 3270, 3271 (repealed 2019). 

That $5 fee was properly included in the Certified Bill of Cost.1 The Government Code 

no longer allows for an electronic filing fee, and there is no other statute that provides for 

an additional $2 electronic filing fee. See TEX. GOV’T CODE § 51.851 (current version

1 The Certified Bill of Cost, dated October 1, 2021, and contained in the October 5, 2021, Supplemental 

Clerk’s Record, is the Certified Bill of Cost relevant to this case, and no other document should be 

considered by the parties, the trial court, or the District Clerk as the bill of cost. Accordingly, we use the 

phrase, “Certified Bill of Cost,” to refer to the bill of cost included in the October 5, 2021, Supplemental 

Clerk’s Record.
Lee v. State Page 4 

showing e-filing fee repealed).2 Thus, after reviewing the statutes and the record in this 

case, we agree that there is no basis for the assessment of a $2 e-filing fee.

— $15 conditional time payment fee

The parties also agree that a $15 time payment fee, conditioned on “full payment 

of court costs, reimbursement fees, fines and costs” being paid within 30 days of the 

judgment should be deleted. A $15 time payment fee is permitted by article 102.030(a) of 

the Texas Code of Criminal Procedure if a “fine, court costs, restitution, or another 

reimbursement fee” is not paid in full before the 31st day after the date on which the 

judgment is entered assessing such. See TEX. CODE CRIM. PROC. art. 102.030(a). However, 

article 102.030 does not apply to Lee’s case because the offense he committed occurred in 

2017. See Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 5.01 2019 Tex. Gen. Laws at 4035

(“Except as otherwise provided by this Act, the changes in law made by this Act apply 

only to a cost, fee, or fine on conviction for an offense committed on or after the effective 

date of this Act [January 1, 2020].”). We agree that because the fee does not apply to Lee’s

offense, there is no basis for the inclusion of the conditional $15 time payment fee in the 

Certified Bill of Cost. Further, any time payment fee assessed or threatened is premature. 

See Dulin v. State, 620 S.W.3d 129, 133 (Tex. Crim. App. 2021); see also Bryant v. State, 642 

S.W.3d 847, 850 (Tex. App.—Waco 2021, no pet.). 

2 Local Government Code section 133.102 now provides for a percentage of a consolidated fee to be 

designated for the “statewide electronic filing system account.” See TEX. LOC. GOV’T CODE § 133.102(e). 

That provision was effective January 1, 2020. For offenses committed after January 1, 2004, and before 

January 1, 2020, the date range within which Lee’s offense was committed, the money collected as court 

costs “shall be allocated according to the percentages provided in Subsection (e), as that subsection existed 

and was applied on December 31, 2019.” Id. (d). Subsection (e), as it existed and was applied on December 

31, 2019, did not have an e-filing fee allocation. See Acts of 2011, 82nd Leg., ch. 1249 (S.B. 1664), § 13(b), 

effective September 1, 2013. Thus, no statutory authority for the collection of a $2 e-filing fee existed at the 

time Lee committed or was convicted of the offense.
Lee v. State Page 5 

— $25 combined time payment fee 

Finally, the parties agree that, pursuant to the Court of Criminal Appeals’ opinion 

in Dulin v. State, 620 S.W.3d 129, 134 (Tex. Crim. App. 2021), the assessment of $25.00, 

combined, as a time-payment fee in this case was premature.3 After reviewing the 

caselaw and the record in this case, we agree that the assessment of a time-payment fee 

in the Certified Bill of Cost is premature, and thus conclude there is no basis for this fee. 

CONCLUSION

Accordingly, the trial court's judgment is modified to assess court cost in the 

amount of $289. As modified, we affirm the trial court’s judgment,4 and counsel's motion 

to withdraw from representation of Lee. 

 TOM GRAY

Chief Justice

Before Chief Justice Gray, 

Justice Smith, and

Justice Wright5

Affirmed as modified

Opinion delivered and filed December 28, 2022 

Do not publish

[CR25] 

3 The Certified Bill of Cost specifically includes $25 aggregated time-payment fees (listed in the explanation 

of fees as an Administrative Justice Fee—$2.50; Time Payment Fees—$10.00; Time Payment-State Fee—

$12.50) in the balance of the costs owed. 

4 The bill of cost should be modified to reflect the cost due in the judgment as modified.

5 The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals, sitting by 

assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE §§ 74.003, 75.002, 75.003.