NO. 12-20-00113-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
CHRISTOPHER CEMOND FRATER, § APPEAL FROM THE 7TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Christopher Cemond Frater appeals his conviction for possession of a firearm by a felon.
In a single issue, he contends the trial court erred by imposing certain court costs. We modify
and affirm as modified.
BACKGROUND
In October 2019, Appellant was charged by indictment with the third-degree felony of
unlawful possession of a firearm by a felon. 1 Appellant pleaded “not guilty,” waived his right to
a jury trial, and the matter proceeded to a bench trial. The trial court ultimately found Appellant
“guilty.” Following a sentencing hearing, the trial court found each of the State’s enhancement
paragraphs “true” and, consistent with the habitual offender statute, assessed Appellant’s
punishment at forty years imprisonment. 2 This appeal followed.
COURT COSTS
In his sole issue, Appellant urges the trial court improperly assessed certain court costs in
the judgment. Specifically, he argues the trial court erroneously assessed costs for the “county
1
See TEX. PENAL CODE ANN. § 46.04 (West Supp. 2020).
2
See id. § 12.42(d) (West 2019)
specialty court account” and “courthouse security fund.” The State concedes the error and urges
that the “Local Consolidated Fee on Conviction of Felony” should be stricken in its entirety. We
agree.
Local Consolidated Fee on Conviction of Felony
The date of Appellant’s charged offense is July 25, 2019. The Local Consolidated Fee on
Conviction of Felony only applies to defendants who are convicted of offenses committed on or
after January 1, 2020. TEX. LOC. GOV’T CODE ANN. § 134.101 (West Supp. 2020). Section
134.101 assesses an additional $105 fee for persons convicted of felonies. Id. § 134.101(a).
That $105 fee is to be allocated to the following specific accounts and funds: the clerk of the
court account, the county records management and preservation fund, the county jury fund, the
courthouse security fund, the county and district court technology fund, and the county specialty
court account. Id. § 134.101(b).
The bill of costs in Appellant’s case includes the following costs as enumerated in
Section 134.101: $40.00 Clerk of the Court, $4.00 County and District Court Technology Fund,
$1.00 County Jury Fund, $25.00 County Records Management and Preservation, $25.00 County
Specialty Court Account, and $10.00 Courthouse Security Fund. These total $105 in fees. Per
the statute’s effective date, Appellant is not obligated to pay the Local Consolidated Fee on
Conviction of Felony. See Hayes v. State, No. 12-20-00222-CR, 2021 WL 1418400, at *2 (Tex.
App.—Tyler April 14, 2021, no pet. h.) (mem. op., not designated for publication). Accordingly,
we will modify the trial court’s judgment and Order to Withdraw Funds to delete these fees. See
Sturdivant v. State, 445 S.W.3d 435, 443 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d);
Ovalle v. State, 592 S.W.3d 592 S.W.3d 615, 618 (Tex. App.—Dallas 2020, pet. filed).
Appellant’s sole issue is sustained.
Time Payment Fee
We further note that the judgment awards a total of $326.50 in court costs. The judgment
includes a document entitled “Order to Withdraw Funds,” which states that Appellant incurred
“court costs, fees, fines and/or restitution in the amount of $326.50.” The bill of costs itemizes
the court costs imposed, which total $326.50 with $326.50 remaining. The bill of costs includes
a $15.00 “time payment” fee and includes a paragraph stating 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 judgment assessing the court
2
costs is entered. 3 But see TEX. LOC. GOV’T CODE ANN. § 133.103(c), redesignated as TEX. CODE
CRIM. PROC. ANN. art. 102.030 (West Supp. 2020) (treasurer shall deposit ten percent of fees
collected under this section in general fund of county or municipality for purpose of improving
efficiency of administration of justice in county or municipality).
Several intermediate appellate courts, including this Court, have held subsections (b) and
(d) of Section 133.03 unconstitutional. See, e.g., 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); Ovalle, 592 S.W.3d at 618 n.1; Simmons v. State, 590 S.W.3d 702, 712 (Tex.
App.—Waco 2019, pet. filed); Johnson v. State, 573 S.W.3d 328, 340 (Tex. App.—Houston
[14th Dist.] 2019, pet. filed). However, the Court of Criminal Appeals has recently held that the
pendency of an appeal stops the clock for the purposes of the time payment fee. Dulin v. State,
Nos. PD-0856-19, PD-0857-19, 2021 WL 1202400, at *4 (Tex. Crim. App. March 31, 2021).
While Appellant did not complain about the imposition of the time payment fee, we have
the authority to sua sponte modify a judgment to make the record speak the truth when we have
the necessary information to do so. Goldson v. State, No. 12-16-00278-CR, 2017 WL 3405201,
at *3 (Tex. App.—Tyler Aug. 9, 2017, no pet.) (mem. op., not designated for publication);
Ingram v. State, 261 S.W.3d 749, 754 (Tex. App.—Tyler 2008, no pet.); Davis v. State, 323
S.W.3d 190, 198 (Tex. App.—Dallas 2008, pet. ref’d); Asberry v. State, 813 S.W.2d 526, 529–
30 (Tex. App.–Dallas 1991, pet. ref’d) (“The authority of an appellate court to reform incorrect
judgments is not dependent upon the request of any party, nor does it turn on the question of
whether a party has or has not objected in the trial court”); TEX. R. APP. P. 43.2(b).
Because the pendency of an appeal stops the clock for purposes of the time payment fee,
the assessment of the fee in Appellant’s case is premature. Dulin, 2021 WL 1202400, at *4. As
a result, the fee should be struck in its entirety, without prejudice to being assessed later if, more
than 30 days after the issuance of our mandate, Appellant has failed to completely pay any fine,
court costs, or restitution that he owes. 4 Id.
3
It appears the trial court improperly assessed the new $15.00 time payment fee instead of the $25.00
payment fee applicable to Appellant’s case. See Act of May 23, 2019, 86th Leg., R.S., S.B. 346, §§ 2.54, 5.01, 2019
Tex. Sess. Law Serv. ch. 1352; TEX. CODE CRIM. PROC. ANN. art. 102.030 (West Supp. 2020).
4
The United States Supreme Court and the Texas Court of Criminal Appeals have recognized the
desirability of avoiding the adjudication of constitutional issues when at all possible. Clinton v. Jones, 520 U.S.
681, 690, 117 S. Ct. 1636, 137 L. Ed. 2d 945 (1997); Pena v. State, 191 S.W.3d 133, 136 (Tex. Crim. App. 2006).
Whether the time payment fee will be reimposed later is speculative at this point because Applicant could avoid the
3
DISPOSITION
Having sustained Appellant’s sole issue, we modify the trial court’s judgment, along with
its attached order to withdraw funds, to reflect that Appellant’s court costs are $206.50 by
deleting the local consolidated fee on conviction of felony and by deleting 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 fine, court costs, or restitution he owes. We affirm
the judgment as modified.
JAMES T. WORTHEN
Chief Justice
Opinion delivered May 12, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
statutory conditions for imposing the fee by choosing to pay his monetary obligations on time. And there is an
available statutory remedy to challenge the time payment fee, if it is ever imposed. See TEX. CODE CRIM. PROC.
ANN. art. 103.008(a) (West 2018); see also Dulin, 2021 WL 1202400, at *4 n.29.
4
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MAY 12, 2021
NO. 12-20-00113-CR
CHRISTOPHER CEMOND FRATER,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 7th District Court
of Smith County, Texas (Tr.Ct.No. 007-1522-19)
THIS CAUSE came to be heard on the appellate record and the briefs 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 as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be modified to reflect that Appellant’s court costs are $206.50 by deleting the
local consolidated fee on conviction of felony and by deleting 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 fine, court costs, or restitution he owes; 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 Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.