AFFIRMED as MODIFIED and Opinion Filed August 3, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00136-CR
GEORGE OVALLE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F18-58862-R
MEMORANDUM OPINION ON REMAND
Before Justices Pedersen, III, Reichek, and Carlyle
Opinion by Justice Reichek
This case is before us on remand from the Texas Court of Criminal Appeals.
In our original opinion, we determined that 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. Ovalle v. State, 592 S.W.3d 615, 618 (Tex.
App.—Dallas 2020). The State filed a petition for discretionary review with the
court of criminal appeals. That court recently handed down its opinion in Dulin v.
State, 620 S.W.3d 129 (Tex. Crim. App. 2021), and held that the time payment fee
was assessed prematurely because the pendency of an appeal suspends the obligation
to pay court costs. Accordingly, in this case, the court of criminal appeals refused
the State’s petition and instead granted review on its own motion to determine if the
time payment fee should 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. See Ovalle v. State, No. PD-0127-20, 2021 WL 1938672, at *1 (Tex. Crim.
App. May 12, 2021) (per curiam) (not designated for publication). We affirm the
judgment as modified below.
Appellant was indicted for aggravated assault with a deadly weapon after he
stabbed his neighbor multiple times with a knife. Appellant signed a judicial
confession, waived his right to a jury trial, and entered an open plea of guilty to the
offense. At the beginning of the plea hearing, the trial judge confirmed with appellant
that he was pleading guilty without a plea bargain agreement and admonished him
that punishment could be set anywhere within the range provided by law. Appellant
acknowledged he understood. After further admonishing appellant, and hearing
testimony from both appellant and the victim's aunt, the trial court accepted
appellant’s plea, made an affirmative deadly weapon finding, and sentenced
appellant to eight years in prison.
As with our original opinion, the issues are whether the trial court’s judgment
should be modified to reflect that appellant entered an open plea and whether a
portion of the time payment fee is facially unconstitutional.
In his first issue, appellant contends the judgment should be corrected to show
he pleaded guilty without a plea bargain. The State agrees.
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The judgment signed by the trial court indicates that appellant was sentenced
pursuant to a plea bargain agreement. In the space provided for “Terms of Plea
Bargain,” the judgment states “8 YEARS TDCJ.” We have the power to modify a
judgment to speak the truth when we have the necessary information to do
so. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim.
App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet.
ref'd) (en banc).
In this case, although appellant signed a document entitled “Plea Agreement,”
the substance of that document shows appellant intended to enter an open plea
of guilty. This was confirmed by the trial court at the beginning of the plea hearing.
Because the record affirmatively shows that appellant did not have a plea bargain
agreement when he pleaded guilty, we modify the judgment to delete the phrase “8
YEARS TDCJ” in the space provided for “Terms of Plea Bargain” and modify it to
state “OPEN PLEA.”
In his second issue, appellant contends a portion of a $25 time payment fee
assessed as part of the court costs in this case under section 133.103 of the local
government code is facially unconstitutional.
The judgment in this case imposed court costs in the amount of $299. Based
on the record, this amount necessarily includes the $25 time payment fee. The
certified bill of costs assessed court costs in the amount of $274 and included
language that a $25 time payment fee would be assessed in accordance with section
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133.013 of the government code “for any fines and or court costs remaining on or
after the 31st day from the date of the judgment assessing the fine and or court cost.”
A subsequent Criminal Court Fee Docket reflects that the $25 time payment fee was
assessed on February 25, 2019, twenty-eight days after the January 25, 2019
judgment, for an adjusted balance of $299.
In Dulin, the court of criminal appeals determined that “[t]he pendency of
appeals stops the clock for purposes of the time payment fee” and that, as a result,
the assessment of time payment fees is premature. 620 S.W.3d at 133. Therefore,
in accordance with Dulin, we conclude the $25 time payment fee should be struck
in its entirety as prematurely assessed, without prejudice to being assessed later 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 modify the trial court judgment to (1) reflect that appellant entered an
open plea and (2) reduce the total amount of court costs by $25 to strike the time
payment fee.
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We affirm the trial court’s judgment as modified.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
190136F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
GEORGE OVALLE, Appellant On Appeal from the 265th Judicial
District Court, Dallas County, Texas
No. 05-19-00136-CR V. Trial Court Cause No. F18-58862-R.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Reichek; Justices Pedersen, III and
Carlyle participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
(1) To reduce the total amount of court costs by $25 to strike the time
payment fee;
(2) The phrase “8 YEARS TDCJ” in the space provided for in “Terms
of Plea Bargain” is DELETED and REPLACED with the words
“OPEN PLEA.”
As MODIFIED, the judgment is AFFIRMED.
Judgment entered August 3, 2021
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