Opinion
NO. 12-17-00052-CR
08-23-2017
GRADY RAY BROWN, APPELLANT v. THE STATE OF TEXAS, APPELLEE
APPEAL FROM THE 114TH JUDICIAL DISTRICT COURT SMITH COUNTY , TEXAS
MEMORANDUM OPINION
Grady Ray Brown appeals his conviction for driving while intoxicated. In a single issue, Appellant argues that the judgment imposes unconstitutional court costs. We affirm.
BACKGROUND
Appellant was charged by indictment with driving while intoxicated, third or more. He pleaded "guilty" and, after a hearing on punishment, was sentenced to imprisonment for life. This appeal followed.
COURT COSTS
In his sole issue, Appellant argues that this Court should modify the trial court's judgment to remove unconstitutional court costs. Applicable Law
The imposition of court costs upon a criminal defendant is a "nonpunitive recoupment of the costs of judicial resources expended in connection with the trial of the case." Johnson v. State , 423 S.W.3d 385, 390 (Tex. Crim. App. 2014). The consolidated fee statute requires a defendant to pay a court cost of $133 on conviction of a felony. TEX. LOC. GOV'T CODE ANN. § 133.102(a)(1) (West Supp. 2016). The money received is divided among a variety of state government accounts according to percentages dictated by the statute. See id . § 133.102(e) (West Supp. 2016); Salinas v. State , No. PD-0170-16, 2017 WL 915525, at *1 (Tex. Crim. App. Mar. 8, 2017). The court of criminal appeals has held the statute unconstitutional with respect to two of these accounts: an account for "abused children's counseling" and an account for "comprehensive rehabilitation." See Salinas , 2017 WL 915525, at *1. As a result, the court held that any fee assessed pursuant to the statute must be reduced pro rata to eliminate the percentage of the fee associated with these accounts. Id. The court further held that its holding applies only to (1) a defendant who raised the appropriate claim in a petition for discretionary review before the date of the court's opinion, if the petition is still pending on that date and the claim would otherwise be properly before the court on discretionary review, or (2) a defendant whose trial ends after the mandate in Salinas issues. Id. at *6. Analysis
Here, the final judgment shows a court cost assessment of $389. The bill of costs shows that the $133 consolidate fee was assessed. However, because (1) no petition for discretionary review is pending on Appellant's claim, and (2) the proceedings in the trial court ended on February 3, 2017—prior to the court of criminal appeals's decision in Salinas —the court's holding in that case does not apply. See id . Accordingly, we overrule Appellant's sole issue.
DISPOSITION
Having overruled Appellant's sole issue, we affirm the trial court's judgment.
JAMES T. WORTHEN
Chief Justice Opinion delivered August 23, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
Appeal from the 114th District Court of Smith County, Texas (Tr.Ct.No. 114-1003-16)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things 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.