AFFIRM AS MODIFIED; and Opinion Filed August 3, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00932-CR
NATHAN HAYWOOD STRONG, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F17-55421-I
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Smith
Opinion by Justice Schenck
Nathan Haywood Strong appeals his conviction for unlawful possession of a
firearm by a felon. Appellant waived a jury trial and entered a negotiated guilty plea
before the trial court. Pursuant to the plea agreement, the trial court deferred
adjudication of guilt and placed appellant on community supervision for three years
with a fine of $1,000. Subsequently, the State moved to adjudicate appellant’s guilt,
claiming he had violated conditions of community supervision. At the revocation
hearing conducted via Zoom, appellant pleaded not true to the alleged violations.
The trial court found true most, but not all, of the alleged violations, adjudicated him
guilty of the charged offense of unlawful possession of firearm by felon, and
assessed punishment at five years’ confinement. That judgment included no amount
of court costs, but the cost bill includes the $1,000 fine assessed in the order of
deferred adjudication and $249 in court costs.
In three issues, appellant challenges the imposition on him of certain fees and
argues the judgment incorrectly reflects he entered a plea of true to the State’s
motion to adjudicate. We modify the trial court’s judgment to reflect appellant
entered a plea of “not true” to the “Motion to Adjudicate,” affirm the judgment as
modified, and modify the bill of costs to delete the $1,000 fine, $13.07 of the
consolidated cost fee, and the $25 time-payment fee, without prejudice to the time-
payment fee being assessed subsequently 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. Because the issues are settled in law, we issue this
memorandum opinion. TEX. R. APP. P. 47.4.
DISCUSSION
I. The Complained-of Fees Were Improperly Imposed
A. Consolidated Fee
In his first issue, appellant urges he was charged $133 as costs of court
pursuant to section 133.102 of the local government code and that this statute is
facially unconstitutional “in that it provided for the collection and distribution of
fees that could not be said to be connected to criminal justice as required by Texas
law, and therefore a violation of the separation of powers clause of the Constitution.”
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He argues that portions of that fee were directed to the abused children’s counseling
fund, which no longer exists, and to the comprehensive rehabilitation fund, for which
no criminal purpose exists. See TEX. LOC. GOV’T CODE § 133.102.
When a defendant is convicted in a criminal case, various statutes require the
payment of fees as court costs. See Salinas v. State, 523 S.W.3d 103, 105 (Tex.
Crim. App. 2017). One of these statutes assesses a consolidated fee: the defendant
pays a single fee, but the money from that fee is divided up among a variety of
different state government accounts according to percentages dictated by the statute.
See LOC. GOV’T § 133.102.1 In 2017, the court of criminal appeals held section
1
Section 133.102 has been revised since appellant was ordered to pay consolidated fees in 2018, and
the text of that prior version is as follows:
(a) A person convicted of an offense shall pay as a court cost, in addition to all other costs:
(1) $133 on conviction of a felony;
(2) $83 on conviction of a Class A or Class B misdemeanor; or
(3) $40 on conviction of a nonjailable misdemeanor offense, including a criminal violation of a
municipal ordinance, other than a conviction of an offense relating to a pedestrian or the parking of a motor
vehicle.
(b) The court costs under Subsection (a) shall be collected and remitted to the comptroller in the manner
provided by Subchapter B.
(c) The money collected under this section as court costs imposed on offenses committed on or after
January 1, 2004, shall be allocated according to the percentages provided in Subsection (e).
(d) The money collected as court costs imposed on offenses committed before January 1, 2004, shall
be distributed using historical data so that each account or fund receives the same amount of money the
account or fund would have received if the court costs for the accounts and funds had been collected and
reported separately.
(e) The comptroller shall allocate the court costs received under this section to the following accounts
and funds so that each receives to the extent practicable, utilizing historical data as applicable, the same
amount of money the account or fund would have received if the court costs for the accounts and funds had
been collected and reported separately, except that the account or fund may not receive less than the
following percentages:
(1) crime stoppers assistance 0.2581 percent;
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133.102 was facially unconstitutional to the extent it allocated funds to the abused
children’s counseling account and the comprehensive rehabilitation. See Salinas,
523 S.W.3d at 105. We agree with appellant that the holding in Salinas applies here
and that the imposition of any fees allocated to the abused children’s counseling
account and the comprehensive rehabilitation are unconstitutional and should not be
imposed on him. The Salinas court, noting that the remainder of the fee was
allocated to permissible accounts, concluded the imposed fee should be reduced pro
rata and that a $133.00 fee—the same amount imposed here—should be reduced to
(2) breath alcohol testing 0.5507 percent;
(3) Bill Blackwood Law Enforcement Management Institute 2.1683 percent;
(4) law enforcement officers standards and education 5.0034 percent;
(5) law enforcement and custodial officer supplemental retirement fund 11.1426 percent;
(6) criminal justice planning 12.5537 percent;
(7) an account in the state treasury to be used only for the establishment and
operation of the Center for the Study and Prevention of Juvenile Crime and
Delinquency at Prairie View A&M University 1.2090 percent;
(8) compensation to victims of crime fund 37.6338 percent;
(9) emergency radio infrastructure account 5.5904 percent;
(10) judicial and court personnel training fund 4.8362 percent;
(11) an account in the state treasury to be used for the establishment and operation
of the Correctional Management Institute of Texas and Criminal Justice
Center Account
And 1.2090 percent;
(12) fair defense account 17.8448 percent.
(f) Of each dollar credited to the law enforcement officers standards and education account under
Subsection (e)(5):
(1) 33.3 cents may be used only to pay administrative expenses; and
(2) the remainder may be used only to pay expenses related to continuing education for persons licensed
under Chapter 1701,1 Occupations Code.
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$119.93. See id. at 110–11. Accordingly, we further agree with appellant that the
consolidated fee imposed in this case should be reduced by $13.07.
B. The Time Payment Fee
In his second issue, appellant urges he was prematurely charged a time
payment fee of $25.
Section 133.103 of the local government code provides a convicted person is
required to pay a fee of $25 upon being convicted of a felony and pays any part of a
fine, court costs, or restitution on or after the 31st day after the date on which a
judgment is entered assessing the fine, court costs, or restitution. Appellant argues
the imposition of this fee is premature, relying on Dulin v. State, 620 S.W.3d 129,
133 (Tex. Crim. App. 2021), which held the pendency of an appeal stops the clock
for purposes of the fee.
The time payment fee was imposed on appellant one month after the trial court
signed the order deferring adjudication. However, since an order of deferred
adjudication is not a “judgment” as required in section 133.103, the time payment
fee was prematurely assessed at that time. See Turner v. State, No. 05-19-01493-
CR, 2021 WL 3083501, at *2 (Tex. App.—Dallas July 21, 2021, no pet.) (mem. op.
on remand). The judgment does not impose any costs, but even if it did, appellant
filed his notice of appeal the same day that judgment was signed, so any assessment
of the time payment fees in appellant’s case is premature. Accordingly, we agree
with appellant that the fees should be struck in their entirety, without prejudice to
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them 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.
II. The Bill of Costs Should Be Modified to Strike the Improper Fees
The State urges that, although the costs appellant complains of in his first and
second issues were imposed in the 2018 order deferring adjudication, that order was
set aside by the trial court during the hearing on the State’s motion to adjudicate, and
the 2020 judgment does not impose any costs. The State also points out that,
although its motion to adjudicate included, as one of several, the allegation that
appellant failed to pay those court costs imposed in the 2018 order deferring
adjudication, the trial court did not find that allegation true.
Indeed, the judgment from which appellant appeals does not impose any costs,
nor does the record reflect the trial judge orally pronounced any. However, court
costs “need neither to be orally pronounced nor incorporated by reference in the
judgment to be effective.” Shuler v. State, No. 05-20-00386-CR, 2022 WL 99997,
at *6 n.14 (Tex. App.—Dallas Jan. 11, 2022, no pet.) (citing Armstrong v. State, 340
S.W.3d 759, 766 (Tex. Crim. App. 2011)). Moreover, it is the issuance of the
certified bill of costs that makes costs payable under article 103.001 of the Texas
Code of Criminal Procedure. Id. at 765. Here, the bill of costs in the record includes
the costs appellant complains of.
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Additionally, although not raised by appellant, we note the bill of costs in this
case includes the $1,000 fine imposed in the 2018 order deferring adjudication
despite the fact the judgment does not include the fine, nor does the record reflect
the judge orally imposed a fine. When an accused receives deferred adjudication,
no sentence is imposed. See Taylor v. State, 131 S.W.3d 497, 502 (Tex. Crim. App.
2004). Then, when guilt is adjudicated, the order adjudicating guilt sets aside the
order deferring adjudication, including the previously imposed fine. See id. Because
the trial court did not include a fine in its oral pronouncement when appellant was
adjudicated guilty, we modify the bill of costs to delete the fine. See, e.g., Williams
v. State, No. 05-19-00831-CR, 2020 WL 6128232, at *1 (Tex. App.—Dallas Oct.
19, 2020, no pet.).
Although appellant asks that we modify only the judgment, we are authorized
on direct appeal to order a modification of a bill of costs independent of finding an
error in the trial court’s judgment. See Contreras v. State, No. 05-20-00185-CR,
2021 WL 6071640, at *8 (Tex. App.—Dallas Dec. 23, 2021, no pet.) (mem. op. on
reh’g). Accordingly, we modify the bill of costs to delete the $1,000 fine, $13.07 of
the consolidated cost fee, and the $25 time-payment fee, without prejudice to the
time-payment fee 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.
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III. The Judgment Should Be Modified
In his third issue, appellant urges the judgment adjudicating guilt erroneously
reflects he entered a plea of true to the allegations in the State’s motion to adjudicate.
The State agrees the judgment should be modified to show that appellant actually
pleaded “not true.”
The judgment incorrectly reflects that appellant pleaded “true” to the State’s
allegations, but the record reflects that appellant pleaded “not true.” We are
authorized to reform a judgment to make the record speak the truth when we have
the necessary information to do so. See Bigley v. State, 865 S.W.2d 26, 27 (Tex.
Crim. App. 1993). Accordingly, we sustain appellant’s third issue and modify the
judgment accordingly.
FURTHER OBSERVATIONS
We commend appointed counsel for noting the error and pursuing this appeal
to correct the judgment to accord with a court of criminal appeals decision handed
down in 2017. We likewise appreciate the efforts of the counsel who—in 141 cases
handed down since July 1 of 2020—have brought to our attention basic errors in the
rendition of judgments subject to the rule that appellate courts should assure the
signed judgment “speaks the truth” as to who the sentenced party was, what crime
served the basis of the conviction, who trial counsel was, and other like errors. We
pause to express our hope that other like errors in rendering judgment have not gone
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unnoticed and uncorrected and to convey our concern that the expense associated
with these efforts is substantial and would be better avoided.
CONCLUSION
We modify the trial court’s judgment to reflect appellant entered a plea of “not
true” to the “Motion to Adjudicate,” affirm the judgment as modified, and modify
the bill of costs to delete the $1,000 fine, $13.07 of the consolidated cost fee, and the
$25 time-payment fee, without prejudice to the time-payment fee 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.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
DO NOT PUBLISH
Tex. R. App. P. 47
200932F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
NATHAN HAYWOOD STRONG, On Appeal from the Criminal District
Appellant Court No. 2, Dallas County, Texas
Trial Court Cause No. F17-55421-I.
No. 05-20-00932-CR V. Opinion delivered by Justice
Schenck. Justices Osborne and Smith
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court and
the bill of costs are MODIFIED as follows:
We MODIFY the trial court’s judgment to reflect appellant entered a plea of “not
true” to the “Motion to Adjudicate,” AFFIRM the judgment as modified.
Further, we MODIFY the bill of costs to delete the $1,000 fine, $13.07 of the
consolidated cost fee, and the $25 time-payment fee, without prejudice to the time-
payment fee 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.
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 3rd day of August 2022.
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